Opinion
00 CIV. 5394 {DLC)
February 9, 2001
For Plaintiff: Ambrose W. Wotorson, Law Office of Ambrose W. Wotorson New York, NY.
For Defendants: David E. McCraw, Daily News, L.P., New York, NY.
OPINION AND ORDER
In his amended complaint, plaintiff Howard F. Spence, d/b/a Freaky Productions ("Spence"), asserts that defendants Daily News and Daily News, L.P. ("Daily News" or "defendants") discriminated on the basis of race, in violation of 42 U.S.C. § 1981 ("Section 1981") and New York law, when they refused to run advertisements with pictures of black erotic dancers which he had placed pursuant to his contract with the defendants. Defendants move to dismiss. For the following reasons, the motion is denied.
On August 25, 2000, defendants moved to dismiss. After receiving two extensions, plaintiff failed to submit a response by October 2, 2000, the last date by which he was obligated to respond. On October 12, 2000, plaintiff submitted his opposition with a request to file an amended complaint, which was granted October 13, 2000. Defendants filed a second motion to dismiss based upon the amended complaint on November 6, 2000, and a reply on December 8, 2000. Plaintiff has, apparently, relied upon the opposition he filed with his amended complaint on October 12; he has not submitted any other response to the November 6 motion.
BACKGROUND
The following facts are asserted in plaintiff's amended complaint. Plaintiff Spence, a black man, is a part-time adult entertainment promoter in New York. In May 1998, Spence and defendants agreed that the Daily News would run Spence's adult entertainment advertisements. In reliance upon their agreement, Spence hired "black erotic dancers" for the events he planned to advertise in the Daily News. On or about May 27, 1998, Spence and the Daily News entered into an advertisement contract. On May 28, 1998, after Spence provided defendants with the photographs of black erotic dancers to be used in the advertisements, a manager in defendants' advertising and sales department informed Spence that the management of the Daily News had "killed the ad." Another Daily News manager explained to Spence that defendants were "cutting back on ads like that" in order to be "family oriented." According to Spence, in the intervening two years, defendants have printed adult entertainment ads featuring white erotic dancers but have "rarely, if ever, run adult entertainment ads featuring black models and/or black erotic dancers."Spence asserts that the Daily News refused to fulfill their contract with him because he sought to feature black erotic dancers in his advertisements in the Daily News. Spence seeks to recover damages incurred because he was unable to attract a large audience to the event he planned to advertise in the Daily News, for damage to his reputation, incidental, consequential, and punitive damages, and to obtain injunctive relief.
DISCUSSION
A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quotingConley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat. Life Ins. v. Merrill Lynch Co. 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action.
Section 1981 "prohibits racial discrimination in the making and enforcement of private contracts." Lauture v. International Business Machines Corp., 216 F.3d 258, 260 (2d Cir. 2000) (quotation omitted). Section 1981 was amended in 1991 to include a broad definition of "make and enforce contracts" encompassing "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981 (b). This already broad list was meant by Congress to be "`illustrative rather than exhaustive.'" Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 693 (2d Cir. 1998) (quoting H.R. Rep. No. 102-40(1), at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630).
It is frequently stated that a plaintiff alleging a violation of Section 1981 must plead: (1) the plaintiff is a member of a racial minority; (2) a defendant intended to discriminate on the basis of race; and (3) the discrimination concerned one of the statute's enumerated activities, such as the right to make or enforce a contract. See, e.g., Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000) Although plaintiff never directly states the theory under which he brings his Section 1981 claim, he is understood to assert that his business relationship with defendants was adversely affected because of his association with black erotic dancers.
This understanding is based on the first paragraph of the amended complaint, in which plaintiff asserts that "the terms, conditions, and privileges of [plaintiff's] business relationship with defendants were adversely affected by racial discrimination," and paragraph 6(r), in which plaintiff asserts that "defendants `killed plaintiffs' [sic] adult entertainment ad because it prominently featured black erotic dancers" and that, therefore, plaintiff has been "injured" and "denied valuable business opportunities" because of his "representation of" and "business association with" black erotic dancers.
A. Membership in a Racial Minority
The defendants contend that the plaintiff has failed to state a claim since he does not assert that the Daily News discriminated against him on the basis of his race but, rather, that he was a victim of discrimination based upon the race of the dancers who were featured in the photographs he submitted to defendants. A plaintiff has standing under Section 1981 to assert that his right to make and enforce a contract with defendants is compromised by his association with non-whites. See, e.g., Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986) (white woman can sue employer for firing her because her husband was Iranian); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986) (white man can sue employer for failing to hire him because his wife was black); Fiedler v. Marumsco Christian School, 631 F.2d 1144, 1150 (4th Cir. 1980) (white girl can sue school that expelled her because of her relationship with a black schoolmate); Faraca v. Clements, 506 F.2d 956, 958 (5th Cir. 1975) (white teacher can sue school that refused to hire him because he was married to a black woman); Gibbs-Alfano v. Ossining Boat Canoe Club, Inc., 47 F. Supp.2d 506, 511 (S.D.N.Y. 1999) (white man can sue boat club that suspended him because he is married to a black woman)
Spence asserts that he was unable to enforce his contract with defendants because he had business associations with black erotic dancers and, as a result, black erotic dancers were featured in the photographs he submitted to defendants. These allegations could be pursued by a white plaintiff; there is no reason that Section 1981 should provide standing to a white person for discrimination based upon his association with nonwhites and not afford a black person the same remedy.
It is unclear whether the black erotic dancers with whom plaintiff had business associations were the same dancers in the photographs he submitted to defendants. The analysis in both circumstances would, however, be the same: whether or not the dancers in the photographs were the people with whom he contracted to perform at the events being advertised, Spence is a promoter of black erotic dancers and the photographs reflect these associations.
B. Intention to Discriminate
Defendants also assert that Spence has not adequately pled that the Daily News intended to discriminate against him. To establish the intention to discriminate, a plaintiff can (1) "point to a law or policy that expressly classifies persons on the basis of race," (2) "identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner," or (3) "allege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus." Brown, 221 F.3d at 337, 339 (describing the standard for intentional discrimination under the Equal Protection Clause and applying that standard to the intentional discrimination requirement in Section 1981 claims) (internal quotation omitted). A plaintiff must "specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713-14 (2d Cir. 1994). If the plaintiff makes allegations that, if proven true, would entitle him to relief, that is enough to satisfy the particularity requirement. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995).
As proof of defendants' intent to discriminate against him based upon his associations with black erotic dancers, plaintiff has alleged that the Daily News runs ads with erotic white dancers but has refused to run ads where the erotic dancers are black. These allegations regarding intent are sufficient to withstand a motion to dismiss.
C. First Amendment Defense
Defendants argue that even if they discriminated on the basis of race in their publication of photographs in ads for adult entertainment, discriminatory ads are not actionable. The cases cited by defendants hold that consumers do not have standing under Section 1981 to complain of discriminatory advertisements. See Brown v. Phillip Morris, No. CIV.A.98-5518, 1999 WL 783712, at *8 (E.D. Pa. Sept. 22, 1999) (class action brought by black consumers against tobacco companies for discriminatory ads); Ragin v. The New York Times Co., 726 F. Supp. 953, 965 (S.D.N.Y. 1989) (black prospective home buyers sued newspaper for discriminatory ads); Ragin v. Steiner, Clateman and Assocs., Inc., 714 F. Supp. 709, 713 (S.D.N.Y. 1989) (two black couples and NAACP sued advertising agency and owner of apartment complex for discriminatory ads); Spann v. Colonial Village, Inc., 662 F. Supp. 541, 547 (D.D.C. 1987) rev'd on other grounds, 899 F.2d 24 (D.C. Cir. 1990) (housing organizations sued developer and advertising agency for discriminatory ads)
Plaintiff does not assert, however, that his rights as a consumer were violated; rather, he asserts that his inability to enforce his contract with defendants was related to the race of the erotic dancers with whom he contracted. The fact that the contract at issue in this case concerns advertisements does not bar plaintiff from relief under Section 1981.
Defendants also argue that the defendants were willing to contract with plaintiff, and allegedly did so, but lawfully exercised their First Amendment rights to reject the proposed content of his advertising. Although the First Amendment guarantees the freedom of speech and association, statutes that regulate conduct can place an incidental limitation on the freedom of speech in certain cases:
"if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."Jews for Jesus, Inc. v. Jewish Community Relations Council of New York, Inc., 968 F.2d 286, 295 (2d Cir. 1992) (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)). The First Amendment does not, therefore, prevent courts from enforcing statutes, such as Section 1981, that prohibit discrimination. "[S]imply because speech or other expressive conduct can in some circumstances be the vehicle for violating a statute directed at regulating conduct does not render that statute unconstitutional." Jews for Jesus, 968 F.2d at 295. See also, e.g., United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990) ("[S]peech is not protected by the First Amendment when it is the very vehicle of the crime itself") (internal quotation omitted).
Spence does not contest defendants' right under the First Amendment to refuse to publish an advertisement based upon its content. He asserts, instead, that the policy regarding advertising has been applied in a discriminatory fashion that affected his contract with the defendants. Whether defendants' decision not to publish Spence's advertisement was motivated by race discrimination is a question of fact not ripe for resolution.
CONCLUSION
Defendants' motion to dismiss is denied. A Scheduling Order shall be issued with this Opinion.
SO ORDERED: