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July 18, 2001


The opinion of the court was delivered by: Gershon, District Judge.


Plaintiffs, who bring this action under federal civil rights statutes, 42 U.S.C. § 1983, 1985(3) and 1986, allege that the defendants' conduct deprived them of their rights under the Free Speech, Establishment and Free Exercise Clauses of the First Amendment and their right to Equal Protection. They claim that plaintiffs were discriminated against on the basis of their religious beliefs and viewpoint against homosexuality and that the official statements and actions of public officials violated the First Amendment's requirement of neutrality in matters pertaining to religion. The complaint also asserts supplemental state statutory and common law claims of discrimination, tortious interference with contract and breach of contract. Plaintiff Kristopher Okwedy describes himself as an ordained minister and pastor of plaintiff "Keyword Ministries, a Christian church," incorporated as a not-for-profit corporation in New York. Guy V. Molinari, named as a defendant individually and in his official capacity, is the Borough President of Staten Island. Defendant PNE Media, LLC, produces and displays billboards for customers. The complaint seeks injunctive and declaratory relief, specific performance, actual damages, punitive damages, and costs and attorneys' fees. The defendants move to dismiss the federal claims in the complaint pursuant to Rule 12(b)(6) for failure to state a claim. Molinari also argues that the complaint against him should be dismissed pursuant to the doctrine of qualified immunity. Defendants also request that the court decline to exercise supplemental jurisdiction over state law claims.


The complaint's factual allegations are taken as true for purposes of the motion. The complaint alleges that plaintiff Okwedy holds a religiously-based belief that homosexuality is a sin and that he "owes a duty to God to expose [that] sin". Keyword Ministries is "dedicated to promoting traditional biblical values, which includes teaching that homosexual behavior is a sin". Plaintiffs characterize themselves as "members of a class of religious persons who engage in conspicuous, sustained, and overt public displays of sacred religious text as evidence of the sinfulness of homosexuality." Plaintiffs entered into contracts with PNE for the design, production and display of two billboard signs in Staten Island, each for display for a one month period, and paid the full amounts due under the contracts and other costs (a total of $1,565.68 on the first contract and $950 on the second). Under the terms of the first contract, which is attached to the complaint, PNE was responsible for design and production of the sign, subject to plaintiff Okwedy's approval of the artwork.

PNE posted the signs on two billboards in Staten Island on March 3, 2000. The signs consisted of four rectangles, each containing in large capital letters a different version of a verse from the Bible, with attribution of the source, e.g., "Thou Shall Not Lie With Mankind As With Womankind: It Is Abomination (King James)." The other versions used the terms "Detestable", "Loathsome" and "Enormous Sin". The Biblical verse is identified across the top of the signs: "Four Ways to Say Leviticus 18:22." At oral argument, plaintiffs' counsel acknowledged that the purpose of putting those quotes on a billboard was to express a message against homosexuality. The complaint states that "the billboards were located in or near neighborhoods containing a significant number of persons who either engaged in or approved of homosexual conduct." The billboards identified PNE, but they did not identify the sponsor of the message, an omission that was commented upon in an article in the Staten Island Advance that is attached to the complaint. The complaint states that "the signs stirred public opposition among the homosexual community, its supporters, and borough politicians." The Staten Island Advance article describes the "outrage" voiced by various spokesmen for gay rights over the billboards. For example, the president of Staten Island Cares, described as an organization that raises money for people with AIDS, condemned the billboards as "a blatant display of hatred." A letter from the Anti-Defamation League dated March 10, 2000, which is attached to the complaint, commends Borough President Molinari for his condemnation of the billboards, stating, "you were quite correct to call the billboard mean-spirited and to recognize it as a potential danger to the well-being of people who are, or are perceived to be, members of the gay and lesbian community."

On March 8, 2000, Molinari faxed a letter to PNE's New Jersey office. The full text of the letter, on official stationery, is as follows:

For the last two days we have attempted to contact your office, without success, at your listed telephone number (908) 810-1176.
I write regarding the recent appearance on two of your Staten Island billboards of four translations of Leviticus 18:22. As you are probably aware this particular biblical verse is commonly invoked as a biblical prohibition against homosexuality.
The sponsor for the billboard message is nowhere apparent on the billboard, so I am writing to you with the hope that I can establish a dialogue with both yourself and the sponsor as quickly as possible.
Both you and the sponsor of this message should be aware that many members of the Staten Island community, myself included, find this message unnecessarily confrontational and offensive. As Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.
P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them. I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force at (718) 816-2056 to discuss further the issues I have raised in this letter.

Later that same day (and, plaintiffs allege, in response to the Molinari letter), PNE covered over the billboards and issued a press release stating that it had done so because the billboards failed to comply with PNE's "standard requirement that all advertising disclose the identity of the advertiser." The press release also quoted PNE's attorney as stating that the message did not represent PNE's views and that PNE did not discriminate based on sexual orientation, although it "respects its advertisers' free speech rights." PNE's counsel faxed a copy of the press release to Daniel Master, the official identified in the Molinari letter. The complaint alleges that PNE's purported reason for removing the signs is a pretext and points out that the written contracts did not provide for disclosure of the identity of the advertiser and that PNE was responsible for production of the billboards. Instead, the complaint asserts, on information and belief, that the signs were removed "because of Defendant Molinari's threat of future economic harm."*fn1 At oral argument, when questioned as to the basis for the assertion that Molinari had threatened PNE, plaintiffs' counsel relied solely upon the March 8 letter. Plaintiffs also allege, based on the content of the letter, that Molinari's purpose in sending it "was to express official government disapproval of the religious viewpoint conveyed by Plaintiffs."

In response to a letter from plaintiffs' counsel demanding that the signs be reposted, PNE returned the full contract price by check, which plaintiffs did not cash. Plaintiffs further allege that they have been unable to display their message on other billboards in Staten Island because other vendors either declined to accept it or insisted on a minimum six-month rental, which plaintiffs cannot afford.


A. Standard for Motion to ...

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