author: SAROKIN, District Judge.

text:
    Arthur WICHERT, Plaintiff, v. Bruce D. WALTER, Jose Fuentes, Joseph Bonnaci, Charles Baldini, Carlos Perez, Louis Fusco, Genevieve Ghignone, Louis Merchesani, and Frank Clark, Defendants.
    Civ. A. No. 85-1313.
    United States District Court, D. New Jersey.
    April 22, 1985.

      Zazzali, Zazzali & Krol by Robert A. Fagella, Newark, N.J., for plaintiff.
    Fischer, Kagan, Ascione & Zaretsky by Donald Scarini, Clifton, N.J., and Richard DeLaRoche, Union City, N.J., for Union City Bd of Education.
   OPINION

SAROKIN, District Judge.

What distinguishes a democratic state from a totalitarian one is the freedom to speak and criticize the government and its various agencies without fear of government retaliation. It is difficult to envision any right more fundamental to the establishment and continuation of a free society.

In this case, a tenured school teacher, one having twenty-five years of service, is threatened with disciplinary action for having spoken out at a political rally in criticism of the local board of education. Indeed his statement condemned the transfer of another teacher to a distant educational outpost allegedly for political reasons.

If true, to utilize something as vital as teaching assignments as a means of punishing or rewarding political activity would be reprehensible enough, but to then punish one who purports to disclose such activity would be even a greater evil.

Plaintiff contends that the mere existence of charges against him constitutes a form of intimidation and chills his rights of free speech. The court agrees. Defendant argues that to enjoin the normal disciplinary machinery would constitute an unwarranted invasion of the administrative process by the court. However, the court is satisfied based upon the undisputed facts, that no disciplinary proceeding or action is warranted or can even be tolerated under these circumstances. To permit the disciplinary machinery to grind on to its ultimate conclusion, whatever that might be, will, in the interim, intrude upon plaintiffs rights of free speech and presumably deter others who might otherwise be inclined to speak out.

Whether the Board of Education of Union City is or is not operating under a Siberian mentality is not now before the court, but rather whether someone can be disciplined and squelched for saying that it is. The court concludes that one cannot be for the following reasons.

FACTS

Before the court is the motion of the plaintiff Arthur Wichert, brought by order to show cause, seeking declaratory and injunctive relief preventing the defendants from proceeding with tenure charges against him. Plaintiff is the Mayor of Union City and a tenured teacher in the Union City public schools for the past twenty-five years. Plaintiff is also a member and leader of “Your Operation Uplift” (Y.O.U.), which is a political organization in Union City. Defendants are the President of the Union City Board of Education, Bruce D. Walter, the Board itself, and its individual members.

According to plaintiffs unrebutted affidavit, Aff. of Arthur Wichert, 3/11/85, there are two major political factions in the City of Union City, represented by the Y.O.U. organization and an organization known as the Alliance Organization. Individuals associated with the Alliance Organization presently control the majority of the city’s Board of Education. Plaintiff claims that the Board has harassed public school teachers who are members of its political opposition by taking adverse employment actions against them. Specifically, plaintiff claims that he was transferred last year from Union Hill High School, where he had worked for many years, to an elementary school much further distant from the City Hall of Union City. Plaintiff filed suit alleging the transfer was politically motivated, which suit is currently pending before the New Jersey Office of Administrative Law and the Commissioner of Education. In addition, plaintiff’s affidavit reveals that on February 26, 1985, a Commissioner Dragona was also transferred from the high school to an elementary school much further distant from City Hall. Dragona is a prominent Y.O.U. supporter who had previously filed an administrative claim against the Board of Education for its refusal to reinstate him in his former position of principal. That claim was pending at the time of Dragona’s transfer.

The action against plaintiff by the President of the Board, from which plaintiff seeks relief, arose as a result of certain comments made by plaintiff at a political rally on the same day that Dragona was transferred. Dragona’s litigation and transfer were a major topic of concern at the rally, attended by 300 people, and plaintiff was approached by a reporter to give his opinion regarding Dragona’s transfer. Plaintiff responded that “It was one of the most ridiculous, stupid and obvious political moves they have done.” The comment was quoted the next day in the Hudson Dispatch in an article entitled “Dragona exiled far from City Hall.” See Complaint, Exhibit A.

On March 8, 1985, defendant Bruce Walter, the President of the Board of Education, filed written tenure charges with the Secretary of the Union City Board of Education pursuant to N.J.Stat.Ann. § 18A:6-10 et seq. Specifically, Walter charged that Wichert had intentionally and with malice verbally assaulted the Board of Education (Charge I), that he intentionally and/or with a reckless disregard for the truth made false and/or misleading statements “touching upon the daily operation of the school system by the Union City Board of Education with the intent of misleading the public on this issue” (Charge II), and that he intentionally made “derogatory, false and/or inaccurate statements, the truth of which could be easily ascertained” (Charge III). These actions were alleged to exhibit “insubordination and misbehavior” and to constitute “unbecoming conduct touching upon the entire Union City school system and the Board of Education of Union City.” Walter demanded judgment against Wichert consisting of discharge from his tenured teaching position, reduction of his salary, and including “such other and further relief as the Commissioner deems in order and proper.” The only specific comment of Wiehert’s referred to in connection with the charges was the statement quoted in the Hudson Dispatch. See Complaint, Exhibit A.

Under New Jersey’s Tenured Employee Hearing Law, N.J.Stat.Ann. § 18A:6-10 et seq., charges may be lodged against a tenured employee of a Board of Education by filing the charges in writing, along with a written statement of evidence under oath, with the Secretary of the Board. NJ.Stat. Ann. § 18A:6-11. After affording the employee an opportunity to respond, the Board of Education must consider the charges and the response and determine whether there is probable cause to support the charges, and whether the charges are sufficient to warrant either dismissal or reduction in salary. Id. If the Board determines that there is probable cause to support the charges, the Board must so notify the employee and forward the charges to the Commissioner of Education, together with a certification of determination as specified in N.J.A.C. 6:24-5.2. Id. Upon certification of charges to the Commissioner, the Board may suspend the employee involved with or without pay. N.J. Stat.Ann. § 18A:6-14. After certification, the employee is given the opportunity to file an Answer to the charges with the Commissioner. N.J.A.C. 6:24-5.3 & 6:24-1.4. The Complaint and Answer are then transferred to the Office of Administrative Law for a hearing before an Administrative Law Judge (AU). The AU renders an initial decision in the case at the conclusion of the hearing, which decision is forwarded to the Commissioner of Education. The Commissioner then has forty-five days within which to affirm, modify or reverse the AU’s decision. N.J.A.C. l:l-65(a). The Commissioner’s action is final unless the case is appealed by either party to the State Board of Education within thirty days. N.J.A.C. 6:2-11.

By consent of the parties, the usual fifteen-day period for plaintiff to file a response to Walter’s charges against him was suspended pending the court’s resolution of the question of (1) whether the court is required to abstain from granting the plaintiff the relief he seeks because of the pending tenure charges and (2) if not, whether plaintiff is entitled to declaratory or preliminary injunctive relief on the grounds that his statements constituted a protected exercise of his first amendment right of free speech.

DISCUSSION

In order to prevail on a motion for preliminary relief, a litigant must establish that (1) he is likely to prevail on the merits; (2) he would be irreparably injured without a grant of preliminary relief; (3) the grant of relief would not substantially harm other parties interested in, or affected by, the proceedings; and (4) relief would not adversely affect the public interest. Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 958-59 (3d Cir.1984). Where the preliminary relief requested is an injunction against state disciplinary proceedings, the litigant must also demonstrate that the threatened harm to him is egregious enough to surmount the jurisdictional hurdle of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny.

I. Abstention

Younger v. Harris made clear that equitable considerations generally counsel against enjoining a pending state criminal prosecution, even where the criminal charges are based on a statute which is possibly violative of the first amendment “on its face.” Younger dictates that, when faced with such a request, a federal court ought ordinarily to abstain. The equitable considerations underpinning this rule are twofold. The first consideration is the “basic doctrine of equity jurisprudence that courts of equity should not act ... when the moving party has an adequate remedy at law and will not suffer irreparable injury

if denied equitable relief.” The second is “the notion of ‘comity’, that is, a proper respect for state functions.” Id. at 43-44, 91 S.Ct. at 750-751. In the light of these principles, the Supreme Court in Younger found that “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ ” so as to justify the disruption of legitimate state proceedings. Id. at 46, 91 S.Ct. at 751. The appropriate recourse for the accused is simply to set up and rely upon his first amendment defense in the state proceedings. Id. at 45, 91 S.Ct. at 751. In this way, the federal rights of the accused may be vindicated without unduly interfering with the legitimate activities of the states.

The general rule announced in Younger assumed the bona fides of state officials, however. The Younger court carefully distinguished its earlier decision in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), in which it had approved federal intervention in an ongoing state prosecution. In Dombrowski, the Younger Court noted,

the threats to enforce the statutes against appellants [were] not made with any expectation of securing valid convictions, but rather [were] part of a plan to employ arrests, seizures, and threats of prosecutions under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.

Younger, 401 U.S. at 48, 91 S.Ct. at 752, quoting Dombrowski, 380 U.S. at 482, 85 S.Ct. at 1118. The Court found that the factual context of the prosecutions in Dombrowski “sufficiently established] the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to justify federal intervention.” Younger, 401 U.S. at 48, 91 S.Ct. at 752. Thus, the Court in Younger preserved an exception to the general equitable rule against enjoining state criminal prosecutions in cases involving “bad faith and harassment” or other “extraordinary circumstances.” Id. at 53, 91 S.Ct. at 755.

The equitable doctrine of Younger, restricting federal interference with ongoing state proceedings, has since been extended to encompass any noncriminal judicial proceedings “when important state interests are involved.” Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982) (attorney disciplinary proceedings); see also Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (proceedings to terminate parental rights); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (proceedings to recover welfare payments); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (contempt proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (proceeding to enforce nuisance judgment). The Third Circuit has also explicitly ruled that Younger is applicable in the context of nonjudicial disciplinary proceedings against tenured teachers under the very law which defendants invoke here, N.J.Stat.Ann. § 18A:6-10 et seq. See Williams v. Red Bank Board of Education, 662 F.2d 1008 (3d Cir.1981). Because the practical effect of declaratory relief is ordinarily “virtually identical” to that of an injunction, Younger has been held to bar declaratory relief in the face of ongoing state proceedings, in addition to barring injunctive relief. Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971). The doctrine does not bar declaratory or injunctive relief where no state proceeding has yet been instituted, however. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Doran v. Salem Inn, 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). As a threshold matter, therefore, the court must determine whether it is barred by the policies underlying Younger v. Harris from entertaining the plaintiffs application for relief.

The plaintiff makes two . arguments as to why Younger does not require abstention in this case. First, he claims that the teacher tenure proceedings against him have not yet commenced because the tenure charges have not yet been certified. This argument need not detain the court, however. Plaintiff relies on Steffel v. Thompson, supra, and Doran v. Salem Inn, supra. In both of these cases, the Court merely held that abstention was not required where state proceedings had not been instituted. Neither case supports the proposition that a tenure proceeding is not “instituted” until the certification of charges. Where charges have been filed, triggering the requirement that the plaintiff answer within a specified time period, the court concludes that the adverse tenure proceeding, though still in its incipient stages, has been commenced. The concerns of equity and comity underlying the Younger doctrine are no less potent when charges have been filed than when they have been certified.

Plaintiffs second argument is more convincing, however. Plaintiff argues that the “bad faith and harassment” exception to Younger is applicable here in light of the surrounding circumstances, including the school board’s pattern of alleged politically motivated harassment. In view of the undisputed evidence, the court agrees.

A finding of bad faith under Younger requires evidence that the charges against the plaintiff were instituted with “no genuine expectation” of their eventual success, but only to discourage the exercise of the plaintiff’s protected rights. Allee v. Medrano, 416 U.S. 802, 819, 94 S.Ct. 2191, 2202, 40 L.Ed.2d 566 (1974); see also Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 676, 27 L.Ed.2d 701 (1971); Central Avenue News, Inc. v. City of Minot, N.D., 651 F.2d 565, 570 (8th Cir.1981) (“gravamen of bad faith prosecution is the lack of a reasonable expectation that [a] valid conviction[ ] will result”); Williams v. Red Bank Board of Education, 662 F.2d at 1022 n. 14. Other courts have found bad faith where prosecutors have instituted charges in violation of a prior immunity agreement, Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982); where a prosecutor has pursued highly questionable charges against the plaintiff apparently for the sole purpose of gaining publicity for himself, Shaw v. Garrison, 467 F.2d 113 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972); where a prosecution is motivated by a purpose to retaliate for or to deter the filing of a civil suit against state officers, Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979); and, specifically, where a prosecution has been instituted to harass and punish the federal plaintiffs for having exercised their first amendment rights in criticizing public officials. Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.) (per curiam), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); see also Herz v. Degnan, 648 F.2d 201, 209-10 (3d Cir.1981) (state Attorney General’s institution of license revocation proceeding on grounds for which no authority existed strongly suggested that “bad faith” exception to Younger principle would apply, if Younger were relevant to proceeding in question); Bishop v. State Bar of Texas, 736 F.2d 292 (5th Cir.1984); Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir.1979); Timmerman v. Brown, 528 F.2d 811 (4th Cir.1975). The threat of multiple prosecutions may be additional evidence of bad faith, see, e.g., Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972), but is not inevitably required to establish bad faith. Fitzgerald v. Peek, 636 F.2d at 944; Wilson v. Thompson, 593 F.2d at 1381. An injunction may also issue to enjoin consideration of charges by a demonstrably biased tribunal. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973).

In this case, the context in which the charges were brought, and their underlying lack of merit, convinces the court that they were brought only for the purpose of harassment and retaliation, with no hope of eventual success. Plaintiffs affidavit regarding the political motivation of Walter’s action and the Board’s other recent moves is unrefuted. It describes a clear pattern of adverse political actions taken against vocal members of Y.O.U., the Board’s political opponents. Moreover, there is evidence that Walter’s action against Wichert was particularly fraught with political implications at the time that it was taken, given that Y.O.U. and the Alliance were apparently to be pitted against one another in an upcoming local election. Plaintiff’s Brief at 11.

Plaintiff has been a teacher in the Union City school system for twenty-five years and has attained public recognition as May- or. There is no indication that any other disciplinary action has ever been taken or contemplated against him by past school boards. Nor is there any suggestion in the record, apart from Walter’s complaint, that plaintiff is unfit as a teacher. The complaint itself lists no charges other than those stemming from Wichert’s comments at the political rally. It contains no claim that Wichert is unfit as a teacher on any ground other than the claims based on his political speech. Cf., Williams v. Red Bank Board of Education, 662 F.2d at 1010 (charges against teacher in tenure proceeding included striking and publicly humiliating pupils, as well as making “racist and anti-Semitic remarks” at public meeting). Most important, as the court will elaborate below, the charges against Wichert, based solely on his political speech,- are patently meritless and should have been recognized as such by the School Board: Wichert’s comments at the rally were clearly and without question protected first amendment speech.

In sum, the court finds strong evidence of bad faith and political motivation in the facts which are unrefuted in the record before it. This evidence indicates not only that the charges were filed for improper reasons, but also that at least the first tribunal before which these charges will be considered, the Board of Education of Union City, bears the taint of bias against the plaintiff. Under these circumstances, nothing requires the court to defer to the state proceedings until the plaintiff’s case eventually finds its way to an unbiased tribunal within the state system. Cf., Gibson v. Berryhill, 411 U.S. at 577, 93 S.Ct. at 1697 (fact that judicial review would eventually be forthcoming did not require deference to state administrative board found incompetent by reason of bias). In light of the evidence of bad faith and bias, the court finds that it is not barred from issuing the requested relief. Cf., Fitzgerald v. Peek, 636 F.2d 943; Shaw v. Garrison, 467 F.2d 113; Gibson v. Berryhill, supra

II. The Merits of Plaintiffs Application

There is no question that public school teachers, like other public employees, “may [not] constitutionally be compelled to relinquish the first amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public school in which they work.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). See also Connick v. Myers, 461 U.S. 138, 144-45, 103 S.Ct. 1684, 1688-89, 75 L.Ed.2d 708 (1983); Robb v. City of Philadelphia, 733 F.2d 286, 295 (3d Cir.1984) (state could not deny public employment to individual on basis of exercise of first amendment rights), citing Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (public employee, with or without contractual right to retain job, cannot be dismissed for engaging in protected speech).' The free speech rights of public employees may be limited only where required due to “the interest of the State, as an employer, in promoting the efficiency of the public'services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1735.

The two leading Supreme Court cases in the area are Pickering, supra, and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708. In Pickering, the plaintiff teacher had been dismissed from his position by the Will County, Illinois Board of Education for writing a letter to the editor of the local newspaper which was critical of the Board and the district superintendent of schools in revenue matters. The letter accused the defendant officials of having a “ ‘stop at nothing’ attitude,” of making threats and “insult[ing]” voters, of “neglecting the wants of teachers” and of “totalitarianism.” Appendix to the Opinion of the Court, Id. 391 U.S. at 575-78, 88 S.Ct. at 1738-40. The Court found that plaintiff’s statements directed at the Board and superintendent could not be per se harmful to the operation of the schools because the interests of the schools and those of the Board were not necessarily identical. In addition, the statements were held not to threaten either the maintenance of discipline by supervisors or harmony among Pickering’s co-workers, two legitimate concerns of the state, because Pickering’s “employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning.” Id. at 570, 88 S.Ct. at 1735. Finally, and most important, the Court found that plaintiff’s letter dealt with a matter of public concern. Given these circumstances, Pickering’s statements could not “furnish the basis for his dismissal from public "employment ... absent proof of false statements knowingly and recklessly made.” Id. at 574, 88 S.Ct. at 1738. Even the fact that some of Pickering’s specific statements were false as a result of his good faith error did not deter the Court from upholding Pickering’s right to have made them.

Connick did not alter the basic framework of Pickering, but merely amplified and clarified the various factors to be considered. In Connick, the Court emphasized that a public employee’s speech must have touched upon a matter of public concern in order to justify review in a federal court of an adverse personnel decision on the basis of that speech. 461 U.S. at 146-47, 103 S.Ct. at 1689-90. It held that the question of “[wjhether an employee’s speech addresses a matter of public concern must be determined by the content, form and context of a given statement____” Id. at 148, 103 S.Ct. at 1690. The Court suggested that an employee’s statement raises questions of public importance per se where the employee is seeking to bring to light “actual or potential wrongdoing or breach of public trust” by government officials, or to publicize the fact that a public agency is “not discharging its governmental responsibilities.” Id. at 148, 103 S.Ct. at 1690. The Court specifically held that a statement regarding an employer’s efforts to coerce employees for political reasons also raises issues of public concern. Id. at 149, 103 S.Ct. at 1691, citing Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (public official could not dismiss employees on basis of political affiliation where such affiliation was not an appropriate requirement for performance of the job involved); Elrod v. Bums, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (public employee could not be dismissed for failing to submit to political coercion).

Once the public importance of an.employee’s statement is established, according to Connick, the court must- balance the employee’s speech interest against the public employer’s interest in “effective and efficient fulfillment of its responsibilities to the public.” Id. 461 U.S. at 150, 103 S.Ct. at 1692. The Court deemed the “manner, time and place” of the speech activity to be relevant in the calculus, including whether the speech occurred in the place of employment, or outside, and whether it arose in the context of an employment dispute involving application of a challenged policy to the speaker, or in a broader context. Id. at 153,103 S.Ct. at 1693. The Court explicitly distinguished the facts of Connick, involving a disgruntled employee’s distribution of an employee grievance questionnaire, at the office and on office time, from instances in which the employee’s speech “more substantially involved matters of public concern,” and transpired on the employee’s own time. Id. at 152, 153 n. 13, 103 S.Ct. at 1692, 1693 n. 13.

Nothing in Connick in any way challenges or questions the Court’s holding in Pickering, therefore; if anything, Connick reiterates the holding in Pickering that a public employee cannot be terminated for publicly criticizing superiors with whom he does not work directly, where the criticism involves a question of public concern. It is inescapable to the court, and should have been equally inescapable to the Board, that the facts of the instant case are on all fours with those of Pickering and implicate none of the Court’s concerns in Connick.

First of all, like Pickering’s, plaintiff’s statements were addressed to a matter of general concern, indeed, a matter of such concern that it was a major topic among the 300 people gathered for the political rally in question, and generated a banner headline in the Hudson Dispatch the following day. Cf., Anderson v. Central Point School District No. 6, 746 F.2d 505 (9th Cir.1984) (teacher-coach’s letter to school board concerning athletic policies addressed matter of public concern and were protected under first amendment, where school athletic policies had become focus of public debate); Bowman v. Pulaski County Special School District, 723 F.2d 640 (8th Cir.1983) (statements by assistant coaches regarding corporal punishment imposed on students by head coach in context of public debate constituted protected speech). Plaintiff’s comments were aimed at exposing the Board’s abuse of its powers for political reasons. Cf., O’Brien v. Town of Caledonia, 748 F.2d 403 (7th Cir.1984) (police officer’s discussions with judicial officials and response to questions from media charging that police department’s handling of citations was politically motivated constituted speech protected under first amendment); see also Brockell v. Norton, 732 F.2d 664 (8th Cir.1984) (first amendment protected police dispatcher’s disclosures of fellow employee’s misconduct); Czurlanis v. Albanese, 721 F.2d 98 (3d Cir.1983) (first amendment protected county employee’s allegations of inefficiency, waste and possible fraud in Division of Motor Vehicles); Trotman v. Board of Trustees of Lincoln University, 635 F.2d 216, 225 (3d Cir.), cert. denied, 451 U.S. 986, 101 S.Ct. 2320, 68 L.Ed.2d 844 (1981) (fact that faculty criticism of university’s retrenchment policy fell within scope of first amendment protections was “too evident to require any discussion”).

Second, like Pickering’s, plaintiff’s speech occurred off school grounds and on plaintiff’s own time. Cf, Czurlanis, supra (statements at public meeting open to all citizens was protected); Waters v. Chaffin, 684 F.2d 833 (11th Cir.1982) (police officer’s disparaging words about police chief spoken after he had left work, was out of uniform and out of department’s jurisdiction was protected speech). Like Pickering’s, plaintiff’s comments were aimed at the Board of Education, with which he does not work directly, at least in his capacity as a teacher. Cf., Czurlanis, 721 F.2d at 106-7 (mechanic’s comments aimed at county administrators who did not supervise him directly would not disrupt functioning of public agency), citing McGee v. South Pemiscot School District, 712 F.2d 339, 342 (8th Cir.1983) (teacher’s criticism of school policies aimed at school board would not affect his ability to function given that school board members were not teacher’s immediate supervisors); cf., Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir.), cert. denied, 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977) (first assistant district attorney could constitutionally be dismissed for charging District Attorney with dishonesty because of confidential relationship between the two). As in Pickering, there is no evidence here that plaintiff’s effectiveness as a teacher has been impaired as a result of his comments, cf., Swilley v. Alexander, 629 F.2d 1018, 1021 (5th Cir.1980) (court found no evidence that severe discipline or personality problems would arise because of teacher’s criticism of principal, even if principal were plaintiff’s immediate supervisor), nor is there any indication that plaintiff’s comments, as opposed to the Board’s actions themselves, will “materially and substantially interfere with the requirement of appropriate discipline in the operation of the [school system].” Trotman, 635 F.2d at 230; cf., Czurlanis, 721 F.2d at 107 (evidence indicated that any disruption of the Division of Motor Vehicles was “primarily the result, not of the plaintiff’s exercise of speech, but of his superiors’ attempt to suppress it”); see also Monsanto v. Quinn, 674 F.2d 990, 997 (3d Cir.1982) (small amount of disruption caused by employee’s writing and release of letters critical of public employer to news media did not tilt balance away from first amendment protection).

Finally, like Pickering’s, plaintiff’s statement could not be construed as knowingly or recklessly false, in Wichert’s ease, because they were chiefly expressions of opinion rather than statements of fact. In addition, there has never been any evidence submitted to indicate that any factual component of plaintiff’s comments, e.g., his allegations of political motivation, were not well founded. In any event, even if plaintiff’s statements were mistaken, they fell within the purview of the first amendment. Cf., Trotman, 635 F.2d at 225-26 (fact that plaintiff’s statement in telegram to governor accusing university president of being “ ‘inhumane’, ‘vicious’, ‘vindictive’, and ‘arrogant with power given to him by a weak Board’ ” might be “misguided or obstinate ... does not derogate from the status of the expressions as speech within the First Amendment”). As in Pickering, therefore, it is clear that plaintiff’s comments cannot constitutionally form the basis of any disciplinary action against him.

Having established that Younger does not bar injunctive relief in this case because of the school board’s evident bad faith, and that plaintiff’s comments were protected first amendment speech, the other prongs of the test for preliminary relief simply follow. First of all, Younger establishes that a bad faith prosecution of an individual for exercising speech rights amounts to “irreparable injury” in the equitable sense. See also Wilson v. Thompson, 593 F.2d at 1381 (irreparable injury is established as matter of law where plaintiff demonstrates that state prosecution was brought in bad faith and for purposes of retaliating against exercise of protected right); Shaw v. Garrison, 467 F.2d at 120 (showing of bad faith or harassment is equivalent to showing of irreparable injury because of injury to federal right of freedom from bad faith prosecutions). Even beyond the irreparable injury caused by the continuance of a bad faith prosecution, however, is the irreparable chilling effect on the plaintiff’s exercise of free speech during the pendency of the charges against him. Pickering, 391 U.S. at 574, 88 S.Ct. at 1737 (“threat of dismissal from public employment is ... a potent means of inhibiting speech”); Columbus Education Ass’n v. Columbus City School District, 623 F.2d 1155 (6th Cir.1980) (disciplinary actions had chilling effect on teacher’s exercise of free speech); McGill v. Board of Education, 602 F.2d 774, 780 (7th Cir.1979) (same). The plaintiff is thus clearly entitled to the extraordinary relief sought here.

Finally, there is no countervailing public interest or interest of any third party which would militate against granting this relief. The state “by definition does not have any legitimate interest in pursuing a bad faith prosecution brought to retaliate for or to deter the exercise of constitutionally protected rights.” Wilson v. Thompson, 593 F.2d at 1383. In fact, the public interest lies instead in encouraging “free and unhindered debate in matters of public importance — the core value of the Speech Clause of the First Amendment,” rather than in chilling debate. Pickering, 391 U.S. at 573, 88 S.Ct. at 1737. In addition, the court’s analysis of the protected character of plaintiff’s speech establishes that the school system has no substantial interest in prosecuting the tenure charges against plaintiff. Indeed, the only real interest of third parties in the prosecution of those charges is the Board’s interest iri retaliating against plaintiff and chilling his further speech. Manifestly, this is not an interest which deserves any protection in this court. In consideration of all of these factors, the court will enjoin the defendants from pursuing any further the charges pending against plaintiff.

CONCLUSION

Any infringement upon free speech should be carefully scrutinized. Certainly efforts to quell disclosure of the use of an educational system for political purposes must be condemned. If indeed important decisions regarding teaching assignments are made to injure one’s political enemies or to aid one’s political allies, such activities require open debate free of the fear of retaliation or discipline. If the statements prove to be unfair, better their author be shown to be in error in public, rather than be punished in private.

ORDER

This matter having been opened to the court by the plaintiff, Arthur Wichert, on the return date of an Order to Show Cause why the relief sought in the Complaint should not be granted; and the court having considered the briefs, affidavits and arguments of counsel; and for the reasons expressed in the Opinion of the court even dated herewith;

It is on this 22 day of April, 1985,

ORDERED that the speech of Arthur Wichert referred to in the charges filed against him by the defendant Bruce D. Walter,’ President of the Union City Board of Education, dated March 8, 1985, be and it hereby is declared to be speech protected by the first amendment to the United States Constitution which cannot constitutionally form the basis of any disciplinary action or tenure proceedings by defendants; and it is further

ORDERED that the defendants be and they hereby are preliminary enjoined from taking any further action to prosecute the above-referenced charges against the plaintiff.

      . Notably, the Third Circuit has refused to extend Younger to civil disputes where the state is not a party, notwithstanding assertions of a strong state interest in the outcome. Johnson v. Kelly, 583 F.2d 1242 (3d Cir.1978). In Johnson, the court observed that "[i]n extending the contours of the Younger abstention doctrine, based on notions of comity and federalism, it must be recognized that it is an ‘extraordinary and narrow exception’ to a district court’s duty to decide cases within its jurisdiction.” Id. at 1250.

      . The court notes that, while a finding of bad faith would ordinarily be more appropriately made after a hearing on the issue, the defendants have not requested a hearing and have submitted no factual defense on the issue of bad faith. Moreover, even apart from the factual context in which the charges were brought, as noted, the objective validity of plaintiff's first amendment defense to the outstanding charges is by itself a powerful indicator of the defendants’ bad faith in pursuing these charges. Cf., Shaw v. Garrison, 467 F.2d 113 (prosecutor’s persistence in pursuing questionable perjury charges was in bad faith). While the strength of the plaintiffs first amendment claim does not establish bad faith as a matter of law, Williams v. Red Bank Board of Education, 662 F.2d at 1022 n. 14, it strongly corroborates the plaintiffs allegations of the defendants’ improper motivation. Cf., id., 662 F.2d at 1012 (district court was correct in finding that bad faith exception did not apply to Younger where plaintiff teacher did not allege bad faith on the part of school board in instituting disciplinary proceedings).

      . Because there is no dispute in this case that the charges against plaintiff stem from his speech, and only from his speech, the court does not apply the analysis prescribed in Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), for determining whether an employee’s termination is a result of his protected conduct. Cf., Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983) (where record was clear that plaintiffs suspension was direct result of speech at public meeting of county Board of Freeholders, court need focus only on whether speech was protected under Pickering and Connick).

      . In O'Brien, the Seventh Circuit upheld the district court's order enjoining disciplinary proceedings against the plaintiff police officer on the basis of this speech.


source: Caselaw Access Project

author: GADBOIS, District Judge.

license: Public Domain

text:
    HUSTLER MAGAZINE, INC., a California corporation, Plaintiff, v. MORAL MAJORITY, INC., a District of Columbia corporation; Old Time Gospel Hour, a Virginia corporation; Jerry Falwell, an individual; and Does 1-20, inclusive, Defendants.
    No. CV 84-6399 RG.
    United States District Court, C.D. California, Los Angeles Division.
    April 23, 1985.

      Cooper, Epstein & Hurewitz, Beverly Hills, Cal., for plaintiff.
    James E. Merriman, Pacific Palisades, Cal., for defendants.
   OPINION AND ORDER GRANTING SUMMARY JUDGMENT

GADBOIS, District Judge.

This is an action for copyright infringement by Hustler magazine (“Hustler”), the pornographic publication perhaps known best for its controversial publisher, Larry Flynt. The defendants are some of the plaintiff’s staunchest critics: the Reverend Jerry Falwell, the fundamentalist minister of national repute; the Moral Majority, a political lobbying group for conservative causes; and the Old Time Gospel Hour, the corporate sponsor of television and radio broadcasts of religious services originating in Lynchburg, Virginia. Plaintiff seeks both an injunction and an award of damages based on defendants’ unauthorized dissemination of hundreds of thousands of copies of a single page from Hustler’s November, 1983 issue.

This court has jurisdiction over this action under 28 U.S.C. § 1338(a) (1982). Venue is proper.

The copyrighted work in question is a parody of an advertisement for Campari liquor and prominently features a photograph of Falwell. Entitled, “Jerry Falwell talks about his first time,” Hustler’s parody patterns itself on the genuine Campari ads, which consist of interviews with famous persons about their “first time” with Campari. The satire incorporates the advertisements’ layout and design (including Campari’s copyright notice), the same format in.its text, and the same general tone of double entendre. In Hustler’s version, however, Falwell’s “first time” involves not only Campari but also an outright sexual experience — with his mother and in an outhouse — and the “interview” is appropriately replete with scatological attempts at humor. A purported disclaimer, reading, “AD PARODY — NOT TO BE TAKEN SERIOUSLY,” appears at the bottom of the page in very small print.

The Copyright Office registered the copyright certificate for Hustler’s November issue on October 3, 1983, and the issue would have been available for purchase on the newsstands in early October. On October 7, 1983, the chairman of Campari’s advertising agency wrote a letter to Hustler publisher Larry Flynt and his wife Althea, complaining with “great shock and dismay” of the ad parody and demanding that the magazine cease using the Campari label in any manner. Hustler republished the parody in its March, 1984 issue.

The Reverend Falwell’s response to the “ad and personality parody,” as the magazine calls it, included both swift legal action and a series of impassioned communications with his constituents. On October 31, 1983, Falwell commenced a lawsuit against Hustler, Larry Flynt, and Flynt Distributing Company, in the United States District Court for the Western District of Virginia, asserting claims for libel, invasion of privacy and intentional infliction of emotional distress. On December 8, 1984, the jury returned a verdict against Hustler on the emotional distress claim, awarding Falwell $200,000 in general and punitive damages. The jury found for Hustler, however, on the defamation claim, specifically finding as part of a special verdict that the Hustler publication could not reasonably be understood as describing actual facts about Falwell or actual events involving him. The trial court had earlier directed a verdict for Hustler on the invasion of privacy claim.

The communications said to infringe Hustler’s copyright occurred in a barrage of letters and television appeals. On November 15,1983, Falwell sent out two mass mailings to members of the Moral Majority. One set of letters was directed to some 458,370 “rank-and-file donors,” who were asked to contribute amounts up to $50; the other went to some 26,980 “major donors,” who were asked for $500.

The contents of the two sets of letters mailed November 15 were very nearly identical. Falwell reported the “tasteless and libelous attack on my mother and me” by “ ‘Porno King’ Larry Flynt” and sought contributions to wage a legal battle against him in federal court. He also included a copy of a photograph of his mother. The two mailings differed, however, in that the rank-and-file solicitation merely described the ad pardoy, while the major-donor version actually included a copy of the item, with several particularly objectionable words edited out. The letter asked that the recipient destroy the copy after reading it. The major-donor solicitation brought in nearly $45,000 in donations.

On November 18, 1983, Falwell sent out another mailing, this time to 725,586 followers of the Old Time Gospel Hour. This letter also included a similarly edited copy of the Campari ad parody. The Old Time Gospel Hour appeal, however, did not seek funds for a legal battle but rather for a “survival fund” Falwell had established to finance his television and radio network. Old Time Gospel Hour received more than $672,000 in response to this appeal.

Finally, on December 4 and 11, 1983, Falwell continued his response to Flynt’s parody in the course of his weekly sermon on the Old Time Gospel Hour. At several points Falwell held up Hustler’s November issue, with the offending page revealed, and made financial pitches for his survival fund. No figures were provided to the court as to the amount of money received as a result of these television appeals.

The parties do not disagree about the facts but only about what inferences can be drawn from them as to the nature of the copyrighted work and the character of Falwell’s use of the ad. From the point of view of Falwell, the “ad” was a searing personal attack that he had to take seriously because, as he stated in his deposition, “what Mr. Flynt has done has not attacked my philosophy to which I do not object but he has attacked me, my morality, my decency, my sincerity.” Falwell claims he needed to send his followers a copy of the ad to give them information necessary to rebut the statements it contained, in case the faithful happened to be confronted by someone who had seen it. The appeal for money was no more than an ancillary motive, a regular request that would be made in the course of any such communication.

According to Hustler, however, the “ad” was clearly a parody and so obvious a one that there was nothing to “rebut.” Thus, plaintiff points out that Falwell and his aides could not identify a single person who had believed the “charges” in the parody. Moreover, Old Time Gospel Hour’s chief executive officer, DeWitt H. Braud, admitted in his deposition that sending along an actual copy of the parody was part of Falwell’s “marketing approach” to fund-raising; Moral Majority’s executive vice-president Ron Godwin similarly agreed that one purpose of the letter sent out was to raise money. Hustler thus characterizes Falwell’s use as commercial, part of a moneymaking scheme.

The matter is before the court on the parties’ cross-motions for summary judgment and for the imposition of sanctions. As there is no dispute that Hustler is the registered owner of the copyrighted work or that Falwell copied it without permission, the court must find that plaintiff has made out a prima facie case of infringement. See Walker v. University Books, Inc., 602 F.2d 859, 862 (9th Cir.1979). Hustler, as the owner of the copyright, had the exclusive right to reproduce and distribute copies of the work and to display it publicly by means of television or other media. See 17 U.S.C. §§ 101, 106, 501(a) (1982). The only question, therefore, is whether defendants have established any valid defense as a matter of law. As explained below, the court concludes that defendants’ reproduction of the ad parody constituted “fair use” as a matter of law.

DISCUSSION

The doctrine of fair use confers a “ ‘privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner.’ ” Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir.1983) (quoting Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967)). Although developed at common law, the defense of fair use was incorporated in the Copyright Act of 1976 (“the Act”), 17 U.S.C. §§ 101-810 (1982).

Section 107 of the statute provides:

Limitations on exclusive rights: Fair use
Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The legislative history of section 107 makes it clear that the statute provides only a guideline, leaving the court considerable latitude in determining whether in a given ease an alleged infringement is a fair use or not. The Report of the Committee on the Judiciary of the House states:

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts...
... [T]he endless variety of situations and combinations of circumstances that can arise in particular cases precludes the formulation of exact rules in the statute. We endorse the purpose and general scope of the judicial doctrine of fair use, as outlined earlier in this report, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.
Section 107, as revised by the committee, is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.

H.R.Rep. No. 94-1476, 94th Cong., 2nd Sess. 65-66 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5659, 5679-5680 [hereinafter cited as House Report].

Before applying the four statutory factors the court must first decide whether it may properly dispose of a fair use defense through summary judgment. Such authority as exists appears to be that fair use normally is a question of fact for the jury. See DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 28 (2d Cir.1982); MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir.1981); Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1175 (5th Cir.1980); Eisenschiml v. Fawcett Publications, Inc., 246 F.2d 598, 604 (7th Cir.), cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); 3 M. Nimmer, Nimmer on Copyright § 13.05, at 13-63 (1984). The United States Court of Appeals for the Ninth Circuit, however, has not yet expressed any position on the subject. For the reasons set forth below this court concludes that the issue of fair use, at least in the context of this case, presents primarily a question of law.

As a practical matter the state of the record in this case facilitates disposing of it now. Both parties have moved the court for summary judgment, and the basic, historical facts upon which the fair use issue depends are undisputed; the only disagreement is over what conclusion should be drawn. At least one court has stated that this is precisely the situation in which fair use can be determined on summary judgment. Higgins v. Baker, 309 F.Supp. 635, 637 (S.D.N.Y.1969). Moreover, as the discussion below indicates, the court finds that it can agree with Hustler’s factual characterization of Reverend Falwell’s use as largely commercial and still conclude that it was fair as a matter of law.

Additional authority for treating this question as a legal one can be gleaned from the Ninth Circuit’s reasoning in Marcus v. Rowley, 695 F.2d 1171 (9th Cir.1983) and Universal City Studios, Inc. v. Sony Corp. of America, 659 F.2d 963 (9th Cir.1981), rev’d on other grounds 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984), both of which dealt extensively with the doctrine of fair use. In Marcus the defendant, a school teacher, had copied several pages of an informational booklet she had prepared from certain copyrighted materials written by plaintiff. Both parties moved for summary judgment, the plaintiff claiming infringement and the defendant asserting fair use. The trial court agreed with defendant and dismissed the action. The Court of Appeals reversed. Rather than remand the case for trial on the question of liability, however, the court entered summary judgment for the plaintiff on the ground that the fair use defense was unavailable under the applicable law. 695 F.2d at 1178-79. The court apparently treated the trial judge’s findings with regard to each of the factors as factual determinations subject to the clearly erroneous standard, id. at 1177, but the overall conclusion based on a weighing of the factors as a legal one. 695 F.2d at 1179. Similarly, in Universal City, the court specifically characterized the doctrine as a “rule of law,” before applying the four statutory factors. 695 F.2d at 969.

Finally, the essential character of the fair use doctrine as an “equitable rule of reason,” see Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 792, 78 L.Ed.2d 574 (1984), makes it all the more appropriate for the court itself to decide whether the fair use defense applies when the- historical facts underlying each of the four factors are not disputed. The determination of fair use under section 107 involves applying the statutory factors with careful attention to the policies behind the copyright laws as well as first amendment considerations; fair use is not the sort of factual issue that turns primarily on matters within the common experience of jurors. See Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 472 (1983). Under these circumstances the court can decide the question, “even though the process of decision requires the trial court to ‘weigh the evidence’ on both sides of the argument in deciding what ultimate fact to derive.” Id. at 473; see, e.g., Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130, 145-46 (S.D.N.Y.1968) (summary judgment entered for defendant on ground of “fair use” in light of public interest behind defendant’s use of plaintiff’s copyrighted materials and the apparent absence of any injury to plaintiff).

The court now turns to the factors specified in section 107.

1. The purpose and character of defendants’ use.

The first matter to be considered is the purpose and character of Falwell’s use of the ad parody. The evidence on this point indicates that he had more than one motive in acting as he did. A review of the two mailings in question, of the Old Time Gospel Hour sermons, and of the deposition testimony of Falwell’s associates suggests that the Reverend’s objectives were personal, political, and financial all at once.

It is beyond dispute that each of the alleged acts of infringement contained some element of personal reaction to the parody by Falwell. Thus, for example, the November 15, 1983, Moral Majority letter to the organization’s major donors begins:

It’s time to draw the line because this time my enemies have gone too far!
“Porno king” Larry Flynt has, in my opinion, carried his First Amendment rights beyond the limits of civilized discourse — and defiled the good name of my dear mother in the process. (Mother died five years ago at age 82).
Here’s the situation ...
Twice in recent issues of the pornographic magazine, Hustler, publisher Larry Flynt carried out tasteless and libelous attacks on my mother and/or me.
In one incident, a so-called “parody” of a liquor advertisement, the advertising copy told a story of how my mother and I engaged in illicit sexual acts. (At the bottom of the page, the words “not to be taken seriously” appear — as though this excuses going way beyond what the First Amendment intended to protect).
I’ve enclosed an edited copy of the crude “advertisement” for you to see— though I’ve blocked out the most offensive language because of my respect for you and your family. (Please destroy the enclosed copy of the “advertisement” immediately after reading it and make sure no one else sees this vulgar material).
... And starting right this minute, I intend to defend my dear mother’s memory, my wife and children, and my own reputation from further damaging and humiliating assaults from any “porno King” who attacks me.

Letter from Jerry Falwell to Moral Majority’s major donors (emphasis in original).

At the same time Falwell evidently seized upon the ad for use in a larger battle, his continuing campaign against assorted groups including publishers of pornography. In this sense Falwell’s use of the ad parody was only as a focal point for his well-known brand of moral and social commentary. For example, in the course of his December 4, 1983 sermon on the Old Time Gospel Hour, Falwell made the following remarks:

I’ll admit I got a little mad when I read that article, that ad. I’ll admit I almost lost my sanctification, but I believe God used it to stir me up — to say Jerry, don’t cut another station, don’t quit, don’t turn around____
... I just can’t allow pornographers and abortionists and secular humanists and atheists who crucify a frog on the cross to blaspheme Christ to silence me. I can’t allow people who come outside my buildings with red hammer and sickle flags to stop me from preaching what I’m preaching. Help me turn this mission around ...
... There’s something else in this magazine. I clipped these pages so you wouldn’t see any of the pornography and I’ll put my hand over the bottom of the page, but in the same Hustler magazine last month is the Pope of Rome, allegedly — it’s phony of course — but allegedly advertising Hustler Magazine and saying some things in the magazine that he likes. Wonder why they they’d attack the Pope? Why would they attack Jerry Falwell? Well, of course, you know why
Because we both take a stand against pornography, against abortion, against all the issues, the moral issues that are, I think, vital to our nation’s survival. And certainly, near and dear to the heart of God.

All of Falwell’s communications on the subject, however, also involved outright appeals for donations to the Moral Majority or Old Time Gospel Hour. Falwell sought contributions both for a lawsuit against Hustler and a so-called survival fund for his radio and television network. An example of how Falwell employed the parody as an integral part of a financial appeal can be found in the November 18, 1983, Old Time Gospel Hour letter:

I have just established the Old Time Gospel Hour SURVIVAL FUND.
Before Christmas Day, with God’s help, I need to raise enough Money to save our television and radio network.
Make no mistake about it, our situation is very serious. That is why I am calling this a SURVIVAL FUND ...
... I was ready to cut another 50-100 stations — when someone showed me a full-page liquor advertisement which appeared in the November issue of Hustler Magazine — a pornographic tabloid.
When I saw it — I decided that, in a society containing people like Larry Flynt, the Old Time Gospel Hour must remain on the air — on every station ...
... After reading that ad, I went to my study in the basement of my home and prayed about what I should do.
I have made up my mind. The Old Time Gospel Hour must not be silenced. I cannot cut more TV stations.
We must go into 1984, the Year of Destiny, with the entire Old Time Gospel Hour network intact — and call this nation baek to God. I cannot surrender to the pornographers.

Letter from Jerry Falwell to Old Time Gospel Hour contributors (emphasis in original).

Moreover, one of Falwell’s top executives conceded that the inclusion of a copy of the ad parody was part of a “marketing approach” to fund-raising, and the court can safely assume that this strategy involved encouraging the faithful to donate money.

As Hustler correctly points out, the Supreme Court has stated that unauthorized reproduction of a copyrighted work for a commercial or profit-making purpose would be presumptively unfair. Sony Corp., 104 S.Ct. at 792. But merely because Reverend Falwell’s use came in the course of an appeal for donations does not automatically render that use commercial or profit-making in nature. As noted above, Falwell obviously acted out of a variety of motivations. The intent to raise money was not his sole purpose in reproducing copies of the parody for his followers. Cf Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 508 F.Supp. 854, 861 (N.D.Ga.1981) (unfair use existed where defendants copied protected work for no purpose other than their own financial gain), rev’d on other grounds, 694 F.2d 674 (11th Cir.1983). The Moral Majority and the Old Time Gospel Hour were not selling copies of plaintiff’s copyrighted work to their hundreds of thousands of followers.

Even if Falwell’s use had been purely commercial, the court would con-elude that the presumption of unfairness had been rebutted in this case. Commercial motivation does not in and of itself preclude a finding of fair use. See MCA, Inc., 677 F.2d at 182; Triangle Publications, 626 F.2d at 1175 (5th Cir.1980); 3 M. Nimmer, supra, § 13.05(A), at 13-69. Rather the court must also consider whether “the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used.” Marcus, 695 F.2d at 1175; Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied 459 U.S. 879, 103 S.Ct. 175, 74 L.Ed.2d 143 (1982) (same); see Italian Book Corp. v. American Broadcasting Companies, 458 F.Supp. 65, 70 (S.D.N.Y.1978) (fair use generally sustained if defendant’s use not in competition with the copyrighted use). Under this principle, defendant’s use is more likely to be considered fair if it serves a different function than plaintiff's.

It hardly needs stating that Reverend Falwell did not employ the ad parody for the same, intrinsic purpose as plaintiff. Hustler’s use of the work was satirical. It was obviously written to entertain the magazine’s readers, who would not be easily shocked by the language it contained. For defendants the article served an entirely different function. The Old Time Gospel Hour and the Moral Majority do not compete in the marketplace of ideas with Hustler magazine. In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work. Avid members of the Moral Majority presumably would not rate the entertainment value of this article very highly.

The court discerns additional support for Falwell’s position in the legislative history to section 107. The House Report states: “When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and reproduce such parts of the work as are necessary to permit understandable comment on the statements made in the work.” House Report, supra, at 73, U.S.Code Cong. & Admin.News 1976, p. 5687. It would thus be consistent with congressional intent to find that Falwell was entitled to provide his followers with copies of the parody in order effectively to give his views of the derogatory statements it contained.

First amendment considerations also enter into the court’s assessment of the purpose and character of defendants’ use. Although the first amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use. See Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F.Supp. 957, 959-60 (D.N.H.1978) (political committee’s use of a portion of rival candidate’s musical composition amounted to fair use in light of public interest in full debate over election and absence of injury to plaintiff). Cf. Robert Stigwood Group Limited v. O’Reilly, 346 F.Supp. 376, 383-84 (D.Conn.1972), (priests’ unauthorized copying of rock opera, “Jesus Christ Superstar,” was not fair use where facts did not support defendants’ contention that their performance was counterattack to original’s “perverted” version of the Gospel), rev’d on other grounds, 530 F.2d 1096 (2d Cir.), cert. denied, 429 U.S. 848, 97 S.Ct. 135, 50 L.Ed.2d 121 (1976).

In this case both the copyrighted work and the alleged acts of infringement involved appeals to particular moral and social viewpoints. The parody and Falwell’s response were not an isolated exchange but part of a much broader, continuing debate over pornography and other social issues. Indeed, the “publisher’s statement” by Larry Flynt in the November, 1983 issue protested purported attempts by conservative groups, including the Moral Majority, to censor the magazine for its unorthodox political views. Flynt wrote in part: “The First Amendment and the Bill of Rights belong to me and the people who read HUSTLER as much as they belong to Reaganites and the Falwellians of the world and their Moral Majority.” The court believes that, in view of the context in which the parody appeared, the public interest in free expression would be served by facilitating an effective response by Falwell.

2. The nature of the copyrighted work.

The second factor to be weighed under section 107 is the nature of the copyrighted work. The inquiry here concerns whether plaintiff’s work is primarily creative as opposed to informational; the defense of fair use has been given a greater reach when the work copied is informational in nature. Marcus, 695 F.2d at 1176 (citing Universal City, 659 F.2d at 972); see Sony Corp., 104 S.Ct. at 795 n. 40 (“Copying a news broadcast may have a stronger claim to fair use than copying a motion picture.”) Beyond this the court should not look at the contents of the copyrighted work.

There is nothing in the Copyright Act to suggest that the courts are to pass upon the truth or falsity, the soundness or unsoundness, of the views embodied in a copyrighted work. The gravity and immensity of the problems, theological, philosophical, economic and scientific, that would confront a court if this view were adopted are staggering to contemplate.

Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir.1973).

Hustler argues that its ad parody is creative in nature and is, therefore, entitled to greater protection under the fair use analysis. New York Times Co. v. Roxbury Data Interface, Inc., 434 F.Supp. 217, 221 (D.N.J.1977). While the court does not dispute this characterization of Hustler’s work, it cannot accept plaintiff’s conclusion. Falwell did not borrow the parody for its creative worth. Defendants copied it in order to criticize its contents and protest its publication. Whatever value the article had for defendants was purely communicative and informational in character. For these reasons the inventive and creative nature of Hustler’s work is not very significant here.

3. The amount and substantiality of the portion used.

The third factor for the court’s consideration is the amount and substantiality of the portion used in relation to the copyrighted work as. a whole. The court must weigh the significance of the copying both in terms of the quantity and quality of the alleged infringement; it must consider how much of the copyrighted work was taken, and whether that portion was an essential element of the plaintiff’s work. See Marcus, 695 F.2d at 1176; 3 M. Nimmer, supra, § 13.05[A], at 13-75. Although reproduction of a copyrighted work in its entirety ordinarily militates against a finding of fair use, Sony Corp., 104 S.Ct. at 792-93, this fact alone is not dispositive. The court should evaluate an act of wholesale copying in light of the nature of the work and the potential for actual harm to plaintiff. Id.

At the outset it would not appear that defendants copied the entire “work,” as that term is used in section 107, by reproducing the ad parody. The article in question represented but one page from plaintiff’s magazine bearing a single copyright registration. Although each component of a composite work, such as a periodical, is capable of individual copyright protection and need not bear a separate copyright notice, 17 U.S.C. § 404, Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298, 301 (9th Cir.1965), this does not mean that every item in a magazine must be treated as an “entire work” whenever a court assesses the substantiality of copying under section 107(3). If this were the case, then regardless of how little defendant reproduced, he would usually have taken one hundred percent of plaintiff’s work.

In the case of a periodical the court should consider the amount of the copying in light of the extent of the overall criticism or review of the periodical and the relationship of the copied portion to the periodical as a whole. In Triangle Publications, plaintiff claimed copyright infringement based on defendant’s unauthorized reproduction of a cover of TV Guide in an advertisement for a competing publication. The court found fair use and its comments about the substantiality of the copying are instructive;

We find unpersuasive Triangle’s argument that the cover of TV Guide is separately copyrighted and that therefore Knight-Ridder has reproduced an entire copyrighted work. In our view, the cover of a magazine is entitled to copyright protection as part of the magazine, just as a paragraph in a book may be entitled to copyright protection as part of the book. Thus use of the cover of a copyrighted magazine is an infringement. However, it makes no sense to us to say that the use of a cover constitutes the use of “an entire copyrighted work.” As a matter of logic and common sense, Knight-Ridder’s conduct would have been far more serious had it reproduced entire articles from TV Guide or full pages of TV schedules.

626 F.2d at 1177 n. 15 (emphasis in original).

Under these standards Falwell’s alleged acts of infringement become insubstantial. A fair reading of the evidence shows that Falwell was criticizing a good deal more than just the ad parody when he sent out copies of it to his followers. He was attacking Hustler magazine and similar publications in general. For instance, the Moral Majority major-donor letter read in part:

In this same issue of Hustler, Flynt crudely demeaned Pope John Paul II and the dear people of Japan. The month before, he shamefully insulted President Reagan and myself in an unspeakably vulgar manner — by using a cartoon and pseudo-names while portraying us visiting a house of prostitution doing unbelievably immoral things.
Sane and moral Americans all across our nation are outraged by how much these pornographers are getting away with these days. And pornography is no longer a thing restricted to back-alley bookshops and sordid movie houses.
No, pornography has thrust its ugly head into our everyday lives and is multiplying like a filthy plague. Flynt’s magazine, for example, advertises pornographic telephone services where, for a fee, men or women will engage in an “obscene phone call” with you!
... Cable pornography with its “X” rated and triple “X” rated films can bleed over into a regular cable system right into your own living room.
... Entire organizations have sprung up whose sole purpose is to promote deviant sexual practices. The motto of the National Association for Man-Boy Love is “Sex before eight or else it’s too late”!
And there, in my opinion, is clear proof that the billion dollar sex industry, of which Larry Flynt is a self-declared leader, is preying on innocent, impressionable children to feed the lusts of depraved adults.
For those porno peddlers, it appears that lust and greed have replaced decency and morality.
And now Larry Flynt has been bold enough to print shocking and disgusting statements and pictures against my mother and me —as well as against President and Mrs. Reagan, Pope John Paul II, and the Chief Justice of the United States.

Letter from Jerry Falwell to Moral Majority’s major donors (emphasis in original). Thus, even assuming that the ad parody could be viewed qualitatively as an important part of the magazine’s overall contents, the very broad scope of Falwell’s criticism requires the court to conclude that he did not copy a substantial part of plaintiff’s work by reproducing this one page. In short, Falwell’s copying of the parody in its entirety does not preclude a finding of fair use.

4. The economic effect of the use.

The fourth factor specified in section 107 is the effect of the use upon the market for or value of the copyrighted work. The Supreme Court’s discussion of the fair use doctrine in Sony Corp. makes it plain that this factor is frequently the decisive one in light of the design of the copyright laws:

The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit.

104 S.Ct. at 793 (emphasis supplied). The court went on to note:

In certain situations, the copyright owner suffers no substantial harm from the use of the work ____ Here again, is the partial marriage between the doctrine of fair use and the legal maxim de minimis non curat lex.

Id., n. 34 (quoting Latman, Fair Use of Copyrighted Works (1958), reprinted as Study No. 14 in Senate Judiciary Committee, Copyright Law Revision, Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights, 86th Cong., 2d Sess. 30 (I960)). Even before Sony Corp., lower courts agreed that the effect on the value of the copyrighted work normally stands out as the most important criterion. See, - e.g., Marcus, 695 F.2d at 1177; Triangle Publications, 626 F.2d at 1177; Italian Book Corp., 458 F.Supp. at 69.

The potential for harm to a copyrighted work arises if the defendant’s use would tend to diminish the sales of the plaintiff’s work, interfere with its marketability or fulfill the demand for the original. See Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156, 1169 (W.D.N.Y.1982). In this case it is readily apparent that the impact of defendant’s use on the plaintiff’s work (be it the ad parody itself or the entire magazine) is nil. To begin with, the November, 1983, issue of Hustler, first published September 27, was long off the newsstands by the time the first set of Moral Majority mailings went out. Therefore, Falwell’s reproduction could not have interfered at all with the initial sales of this issue. Further, any effect it might have on the marketability of back issues would be de minimis in that this was only one page of a publication which the court believes would be purchased, if at all, for its other attractions. Cf. Sony Corp., 104 S.Ct. at 795 n. • 40 (“Some copyrights govern material with broad potential secondary markets. Such material may well have a broader claim to protection because of the greater potential for commercial harm.”)

Hustler points to the republication of the parody in its March, 1984, issue as evidence that the item had some lasting value which may have been reduced by FalwelPs copying. This argument is disingenuous at best. For one thing the membership of the Moral Majority would probably not be counted among the regular readers of Hustler. But even those who are would not logically have been deterred from buying the March, 1984, issue because of Falwell’s actions. The ad parody was not sold separately from the magazine, and the court doubts that a free copy of this one page would have satisfied demand for the entire issue. If anything, the mailing would have piqued interest in issues of Hustler containing the parody. See Geis Associates, 293 F.Supp. at 146. Hustler has simply failed to offer a logical explanation of the connection between Falwell’s use of the ad parody and any concrete injury to plaintiff’s copyrighted work. See Triangle Publications, 626 F.2d at 1177.

In considering plaintiff’s plea of injury the court also is suspicious of Hustler’s motives in republishing the parody when it did. By that time Falwell had filed his tort action in Virginia and Campari’s advertising agency had written a strong letter of protest to plaintiff about the unauthorized use of the Campari trademark. Under these circumstances Hustler’s republication could easily be taken as malicious. It could also be construed as an attempt to create a facade of damages for the very purpose of this litigation.

Finally, Hustler points to language in Sony Corp. to the effect that likelihood of future harm to the value of a copyrighted work may be presumed where the defendant’s use is for commercial gain. 104 S.Ct. at 793. This presumption is of little avail to plaintiff in the context of this case. The Supreme Court explicitly based its discussion of commercial uses on the premise that they are to be frowned upon because they result in an “unfair exploitation of the monopoly privilege that belongs to the owner of the copyright” and reduce the incentive to create. Id. The unique facts of this case make it plain that Falwell’s reproduction of the ad parody should not be placed in this category of commercial use. Falwell’s use did not cause Hustler any competitive injury. He was not selling copies of the ad parody to his followers or, in any commercial sense, competing with Hustler. Nor did Falwell’s use decrease the value of the parody to Hustler or take away its incentive to publish such works. In fact Hustler republished the same parody in its March, 1984 issue, indicating that if anything plaintiff thought the market for the parody had increased. Even if Falwell’s actions were commercially motivated, for the reasons above the court cannot see that Hustler suffered any injury.

The court has carefully considered all the evidence placed before it in light of the factors set out in section 107. It concludes that the “ ‘equitable rule of reason’ balance,” Sony Cory., 104 S.Ct. at 795, tilts sharply in favor of a finding of fair use. Any other result would mean applying the copyright laws in an inflexible manner and ignoring fundamental considerations of fairness. The ad parody was a satire about Falwell. He was entitled to use it as he did.

Accordingly, IT IS HEREBY ORDERED that summary judgment be entered for defendants and that all requests for sanctions be denied.

      . An additional factor supporting defendants' position that their use was not commercial in nature is that defendants were not engaged in profit-making activities. Falwell did not solicit funds for his personal advantage. Rather, the donations went to the Moral Majority and the Old Time Gospel Hour, each of which is a non-stock, nonprofit corporation.
      Neither the legislative history of the Act nor the Supreme Court's opinion in Sony Corp. expressly defines "commercial" as that term is employed in section 107. They do, however, contrast commercial uses on the one hand with non-profit uses on the other, see House Report, supra, at 66, Sony Corp., 104 S.Ct. at 792, suggesting that the latter can more easily be categorized as “fair.” Although the drafters of the Act eliminated any blanket exemption from the copyright laws for nonprofit corporations, see 17 U.S.C. §§ 106, 110, House Report, supra, at 62-3, and 2 Nimmer, § 8.15[A] at 8-144.1-8-144.2, the court believes that for the purposes of Section 107(1) the fund-raising efforts of religious, charitable, or political entities not organized for profit should be treated more liberally than the business activities of profit-making corporations.
      Of course this is not to say that all such uses are fair under section 107. The court suggests only that unauthorized copying in the context of fund-raising efforts by non-profit organizations should not be treated as presumptively unfair. Rather, it should be regarded in the same light as “non-commercial uses,” requiring plaintiff to show by a “preponderance of the evidence ... some meaningful likelihood of future harm” or present harm to the value of the copyrighted work. See Sony Corp., 104 S.Ct. at 793. Thus the inquiry in these cases should focus on the fourth factor in the section 107 analysis — the effect on the value of the copyrighted work.

      . Hustler argues on several grounds that this section of the legislative history cannot be relied on by defendants, but the court is unpersuaded by these arguments.
      Plaintiff contends that the House Report cannot be regarded as definitive authority on a fair use question inasmuch as fair use is a creature of common law and the report explicitly states that, "Section 107 is intended to restate the present doctrine of fair use, not to change, narrow or enlarge it in any way.” Id. at 66, U.S. Code Cong. & Admin.News 1976, p. 5680. Since defendants have not cited any judicial precedent precisely on point, plaintiff says, this bit of legislative history cannot offer them any solace. This argument, however, ignores the flexible character of the doctrine of fair use. As the committee report elsewhere acknowledges, “since the doctrine is an equitable rule of reason ... each case raising the question must be decided on its own facts." Id. at 65, U.S.Code Cong. & Admin.News 1976, p. 5679. Thus the absence of precedent would not bar the court from deciding that a particular use was fair so long as the general factors set forth in the statute had been applied faithfully. Moreover, the court believes that the passage in question is consistent with fair use case law and, without overstating the importance of that passage to this decision, would not lightly disregard an expression of congressional intent.
      Hustler next maintains that this section is of no help to defendants since the ad parody did not contain any "information about” Falwell. Plaintiff bases this assertion on the jury’s special verdict in the Virginia action to the effect that the satire could not reasonably be understood as describing actual facts about Falwell. In the court’s view plaintiff takes an overly literalistic approach to this passage. It defies common sense to say that a parody entitled, "Jerry Falwell talks about his first time,” is not about Falwell because it was intended solely as a joke. The piece satirized Falwell’s personal mores and political sincerity and contained an abundance of statements about him that were derogatory, to say the least.

        Plaintiff also argues that Falwell reproduced a greater portion of the work than was necessary to make understandable comment on it. In support of this argument plaintiff notes that the larger mailing to the rank-and-file of the Moral Majority did not actually include a copy of the parody; Falwell just described it. While plaintiffs point is well taken, the court does not believe that the other mailings exceeded the bounds of reasonableness. Much like the other contents of Hustler the ad parody must be seen to be appreciated. Falwell was entitled to reproduce it in its entirety to make his case that his "enemies” had gone too far.
      Finally, plaintiff contends that even if Falwell himself had a right to copy the parody, the other defendants — the Moral Majority and the Old Time Gospel Hour — did not since the article did not even mention them. The court cannot accept plaintiffs rather narrow view of the facts. In the public eye the Reverend Falwell is linked inextricably with the two corporate defendants. He is their founder and president. Moreover, their involvement here was only as a medium for Falwell’s communications with his constituents and a recipient of the donations he generated.

      . Hustler argues that reproduction of an entire work, which it asserts occurred here, can never be fair use and relies on Ninth Circuit authorities to that effect. E.g., Marcus, 695 F.2d at 1176 ("wholesale copying of copyrighted material precludes application of the fair use doctrine”); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 756 (9th Cir.1978), cert. denied sub nom. O'Neill v. Walt Disney Productions, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979) (“copying that is virtually complete or almost verbatim" could not qualify for fair use defense). In light of the Supreme Court’s decision in Sony Corp., however, which found fair use despite wholesale reproduction of a copyrighted work, the Ninth Circuit’s position on this issue is clearly no longer controlling. See Sony Corp., 104 S.Ct. at 792-3.

      . Even if the ad parody could be seen as an “entire work” by itself, the court’s ultimate conclusion would be unchanged. The only original element of the parody, the text, consists of approximately 300 words. In the case of such a short work the court believes that the substantiality of the copying should not be given great weight in determining fair use.