UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK MARK PAULINE, doing business as SURVIVAL RESEARCH LABORATORIES, Plaintiff, V, DAVID MIDLAND, Individually and as President and Executive Director of Natural Heritage Trust, and NATURAL HERITAGE TRUST, Defendants. DECISION AND ORDER 90-CV-899A INTRODUCTION Plaintiff, Mark Pauline, doing business as Survival Research Laboratories ("SRL"), brought this action against defendants alleging violation of the. First and Fourteenth Amendments and seeking injunctive relief under 42 U.S.C. ¤ 1983.1 The Court has jurisdiction under the Constitution and under 28 U.S.C. ¤ 1343 and 42 U.S.C. ¤ 1983:. 1 Plaintiff filed a motion for a preliminary injunction on September 19, 1990, which was withdrawn on October 18, 1991. Presently before the Court are the parties' cross motions for summary judgment, pursuant to Fed. R. Civ. P. 56. Plaintiff, in support of his motion, has submitted a memorandum of law, reply memorandum and affidavits of himself and his attorney. Defendants have submitted a memorandum of law and affidavits of David Midland, David Katzive, Joan McDonough and Ed Pers. After reviewing the submissions of the parties and hearing argument from counsel, the Court denies plaintiff's motion for summary judgment, grants defendants' motion for summary judgment and dismisses the complaint. BACKGROUND Mark Pauline is the creator and artistic director of SRL. SRL performances satirize America's socio-political system and the systems of other nations in which it has performed. It is committed to shocking and jarring its audience by confronting it with representations of deadly warfare technologies and consumer culture gone mad. SRL uses robotic creatures, controlled fires, controlled explosives and special effects to confront its audience. Plaintiff brought this action against David Midland, individually and as President of the Natural Heritage Trust ("NH'P'), and against NHT. He originally sought to enjoin defendants from cancelling SRL's performance at Earl W. 2 Brydges Artpark ("Artpark"),2 which was scheduled for September 1, 1990. Artpark is a two hundred acre New York State park, located in Lewiston, New York, which provides sculpture sites, crafts studios, shop facilities and performance areas for artists and performers. During the summer months, NHT contracts with a variety of artists to present traditional and nontraditional works of art in a variety of media. The artists are in residence at Artpark for specified periods of time so that they may not only exhibit their works in the customary manner, but may also meet and discuss their work with visitors to the park. In February 1990, Artpark approached plaintiff about the possibility of performing during the upcoming summer season. After a series of negotiations, SRL contracted NHT on May 18, 1990, to provide a single 45 to 60 minute mechanical performance in the upper parking lot of Artpark on September 1, 1990. The nature of that performance is the basis for the instant lawsui.t. As part of its scheduled performance, SRL planned to stage a bible burning that would symbolize liberation from religious restraints and protest censorship of artists by religious fundamentalists. SRI-planned to create a large mechanical Mother Earth figure and cover it with bibles. During the performance, this 2 Artpark is a program of the Natural Heritage Trust, which is a public benefit corporation created by the Legislature of the State of New York. See 1968 N.Y. Laws, Chapter 653, N.Y. Arts & Cult. Aff. Law ¤ 55 et seq. (McKinney 1984). 3 figure was to be freed from religious constraints by incinerating the bibles, thereby peeling them away from Mother Earth.3 In an effort to obtain a sufficient number of bibles, SRL produced a poster soliciting contributions of bibles to be used in the performance and directing individuals to send the bibles directly to Artpark. Central to the instant litigation is the following excerpt from the poster: SUGGESTIONS: Bibles can always be obtained for free from hotels, church organizations, libraries, the Gideon Society, thrift stores, and your parents[sic] house. Be advised that in certain instances theft is a moral obligation. Item No. 8, Exhibit 12. Upon receipt of a copy of the poster, NHT advised Mr. Pauline that it had concerns regarding the association of Artpark with encouraging theft of property and that it considered the failure of SRL to consult with NHT before distribution of the poster to be a material breach of the contract between NHT and SRL. NHT further advised SRL that nothing in the materials given .to Artpark by SRL or in the proposal sent to Artpark on August 6, 1990, indicated that a bible burning was to be included in SRL's planned performance. Defendants made a determination that SRL had materially breached the 3 The Court notes that this performance was to occur at a time when the National Endowment for the Arts was embroiled in controversy surrounding its funding policies. 4 contract between NHT and SRL, and by letter dated August 1 O, 1990, cancelled the contract. On September 6, 1990, plaintiff served defendants with a complaint seeking a permanent injunction enjoining the cancellation of the performance and compelling NHT to present the performance in accordance with the terms of the contract. On November 19, 1990, plaintiff filed a motion for summary judgment on the ground that defendants, acting under color of state law, imposed a prior restraint on SRL's performance without securing timely judicial review, and that defendants censored plaintiff's planned performance without any compelling state reason. Plaintiff is asking the Court to find, as a matter of law, that he had fully disclosed to defendants the nature of the performance which was contracted for and that defendants had adequate notice of the type of performance plaintiff intended. Plaintiff seeks injunctive relief to compel NHT to schedule the original performance contracted for and such other relief as the Court deems just and proper, including costs and attorney fees. Plaintiff is not seeking damages under ¤ 1983. On February 1, 1991, defendants cross-moved for summary judgment claiming that no factual issue exists as to whether plaintiff has a First Amendment right to perform at Artpark. Defendants argue that plaintiff's right 5 to stage a single performance at Artpark, for a substantial fee and with extensive technical and material assistance and equipment supplied by Artpark's staff, was created solely by the contract between the parties and that no independent First Amendment right of SRL exists such that NHT is required to allow SRL to perform at Artpark. Defendants assert that plaintiff unilaterally breached the contract by failing to fully disclose the nature of his performance as required, and by distributing a poster encouraging individuals to steal bibles and to send them to Artpark for use in SRL's performance. Defendants also claim that plaintiff's actions put NHT at risk of criminal liability for solicitation and/or receipt of stolen goods. Defendants contend that NHT cancelled the contract because of plaintiff's material breach and not because of the proposed content of the performance or the actual content of the poster distributed by plaintiff. Defendants ask that the Court find, as a matter of law, that plaintiff has no First Amendment right to perform at Artpark and that, therefore, defendants~ action cancelling plaintiff's planned performance at Artpark did not constitute a violation of plaintiff's First Amendment rights. As an alternate ground for summary judgment, defendants assert that plaintiff's claim is an action for specific performance of the contract, and that this Court lacks subject matter jurisdiction over such an action pursuant to the 6 Eleventh Amendment which bars suit in federal court against a state for breach of contract. DISCUSSION Standard for Summary Judgment The Second Circuit, in United States v. Certain Funds on Deposit, 998 F.2d 129 (2d Cir. 1993), articulated the standard for summary judgment under Fed. R. Civ. P. 56: Summary judgment is improper unless there is "no genuine issue as to any material fact." Fed. R. Civ. P. 56(c). On a motion for summary judgment, the district court cannot try issues of fact but must determine only whether there are issues of fact to be tried. The burden is on the party moving for summary judgment to demonstrate the absence of any genuine issue of material fact. See Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir. 1984). In determining whether the moving party has satisfied this burden, the court must resolve all ambiguities in favor of the non-moving party. See Liscio v. Warren, 901 F.2d 274, 276 (2d Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). In other words, the court must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences that may reasonably be drawn. Moreover, Id. at 131. It]his admonition [to view the evidence in the light most favorable to the opponent] should especially be kept in mind when the inferences which the partjes seek to have drawn deal with questions of motive, intent, and subjective feelings and reactions. Empire Elect. Co. v. United States, 311 F.2d 175, 180 (1962). 7 Especially relevant in this case, where defendants claim that plaintiff failed to establish a First Amendment right upon which to base his constitutional claim, is the Supreme Court's interpretation of Rule 56 in Celotex Corp. v. Catrett, 477 U.S. 317 (1986): In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be '"no genuine issue as to any material fact,'" since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of laW" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Id. at 322-23. After applying these standards to the instant case, the Court finds that plaintiff has failed to produce sufficient evidence to establish the existence of a First Amendment right upon which his claim for injunctive relief is based. Plaintiff's First Amendment Claim ,. A. Cancellation of the Contract Plaintiff claims that defendants' cancellation of his contract to perform at Artpark in retaliation for his plan to include a bible burning as part of the 8 performance violated his First Amendment right of free speech. To properly plead such a claim, plaintiff must establish that his conduct was protected by the First Amendment and that such conduct prompted defendants' retaliatory action. Mount Healthy City School Dist. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The Court finds that plaintiff has failed to establish the first prong of the Mt. Healthy test--that his right to perform at Artpark was protected by the First Amendment. The First Amendment guarantee of freedom of speech does not mean that either the federal government or the states must provide funds for or sponsor all speech equally. In Advocates for the Arts v. Thomson, 532 F.2d 792 (1 st Cir.), cert. denied, 492 U.S. 894 (1976), the court held that a state can make a discretionary decision whether or not to fund a particular work of art based on the content of the proposed material. There, the Governor Of New Hampshire vetoed the recommendation of the Arts Council and cancelled a grant-in-aid to a literary magazine based on the content of a poem published in the magazine approximately two years prior. The court determined that, ""in the absence of any right to public support of private expression, it seems unlikely that [the literary magazine] has a sufficient "'liberty"' or "property" interest in a favorable decision to be able to claim a right to procedural regularity under the fourteenth amendment." Id. at 797. 9 Plaintiff has a First Amendment right to determine the subject matter of his performances. This First Amendment right does not, however, confer upon plaintiff the contractual right to perform at Artpark, or a constitutional right to obtain an injunction from this Court requiring NHT to uphold the contract upon which plaintiff's right to perform is based, merely because Artpark is a state facility. While plaintiff may dispute NHT's right to terminate the contract for the reasons alleged, this does not convert an ordinary claim for breach of contract into a claim arising under the First Amendment. Feldman v. Bahn, 1993 WL 537795, at '3 (7th Cir. Dec. 29, 1993). In the absence of a protected First Amendment right, defendants' action does not rise to the kind of violation that requires judicial intervention under the Constitution. Advocates for the Arts, 532 F.2d at 798. The Supreme Court has held that a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny. See Buckley v. Valeo, 424 U.S. 1 (1976) (upholding statute providing federal funds only for those candidates for public office who enter primary campaigns); Harris v. McRae, 448 U.S. 297, 31 6 (1980) (the Court upheld the constitutionality of the Hyde Amendment which prohibits the use of federal medicaid funds to perform abortions, stating that, "it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full 10 range of protected choices."); see also Maher v. Roe, 432 U.S. 464 (1977); Regan v. Taxation with Representation of Washington, 461 U.S. 540, 550 (1983) ("Where governmental provision of subsidies is not 'aimed at the suppression of dangerous ideas,' its 'power to encourage actions deemed to be in the public interest is necessarily far broader."') (citations omitted). Similarly, plaintiff's right to freedom of expression under the First Amendment does not provide him with a constitutional entitlement to perform at Artpark, notwithstanding the fact that Artpark is operated by the State of New York. B. Prior Restraint Plaintiff argues that defendants imposed a prior restraint on SRL's performance, under color of state law, by cancelling the contract without securing timely judicial review and that defendants censored SRL's performance without any compelling state reason. Plaintiff's reliance on the prior restraint doctrine is misplaced. The premise of the prior restraint doctrine is that, where the speech to be restricted is protected "speech"..within the First Amendment, a government official cannot subject such speech to the prior restraint of a license or permit unless there are procedural safeguards in place that limit the government's discretion in 11 granting such licenses or permits. Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 (1969); Police Dep't of Chicaqo v. Mosley, 408 U.S.92, 95 (1972). In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), upon which plaintiff relies, the Supreme Court recognized the right of access to a municipal theater based on public forum analysis. The Supreme Court enjoined a municipal theater from preventing a performance by a touring company of the musical "Hair." The Supreme Court held that the municipal theater's rejection of the touring company's application and refusal to issue a permit allowing the use of the forum accomplished a prior restraint upon the touring company under a system lacking in minimal procedural safeguards. Southeastern Promotions, 420 U.S. at 552. The municipal theater's purpose is to provide a community center for local civic, educational, religious, patriotic and charitable organizations and associations. Id. at 551 n.4. None of the elements of prior restraint identified in Southeastern Productions are present here. Plaintiff did not make application to NHT seeking a license to use its facilities to stage a performance. Therefore, no application was denied by government officials exercising broad discretion to grant or deny application requests based on the content of the proposed performance. Id. at 554 (quoting Cantwell v. Connecticut, 310 U.S. 296, 305 (1940)). Here, plaintiff was contacted by defendants about the possibility of performing at Artpark during the 1990 summer season. A period of 12 negotiations ensued which culminated in a contract between plaintiff and NHT whereby plaintiff was to be compensated for the performance and Artpark was to provide substantial technical assistance and support to enable plaintiff to stage the performance. Plaintiff does not argue that he has an absolute right of access to Artpark. Rather, plaintiff claims that defendants' action cancelling the contract constituted a prior restraint and that this Court should enter an injunction ordering NHT to uphold the contract upon which his right to perform is based. While it is clear a dispute exists as to the terms and conditions of the contract and defendants' right to cancel, there is no dispute between the parties that plaintiff's right to appear at Artpark arose solely as a result of the contract. Where, as here, plaintiff has failed to establish that his right to perform at Artpark was protected by the First Amendment, the fact that defendants' action prevented plaintiff's performance does not, without more, establish that defendants' action imposed a prior restraint on plaintiff's First Amendment right to free expression. The government may not deny a benefit to a person because he or she exercises a constitutional right. Perry v. Sindermann, 408 U.S. 593, 597 (1972). Here, plaintiff has failed to establish that he has a protected "property" or "liberty' interest in performing at Artpark or a First Amendment right to perform at Artpark. Advocates for the Arts, 532 F.2d at 797. Thus, plaintiff has 13 not met his burden of making a sufficient showing on an essential element of his case to withstand a motion for summary judgment. Celotex Corp., ;477 U.S. at 322-23. II. Plaintiff's ¤ 1983 Claim Plaintiff also asserts a claim under 42 U.S.C. ¤ 1983, that his First Amendment rights were violated under color of state law. To establish a 1983 claim, plaintiff must establish that defendants deprived him of a right secured by the Constitution or the laws of the United States, and, that such deprivation was permitted by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). The only right secured by the Constitution or laws of the United States cited by plaintiff is his First Amendment right to free speech. However, this Court previously found that plaintiff failed to establish that his right to perform at Artpark was protected by the First Amendment. Accordingly, summary judgment must be granted as to plaintiff's 1983 claim. In his ¤ 1983 claim, plaintiff did not assert a violation of any other constitutional or civil right. He does not contend that others were preferentially treated or that any procedures were discriminatorily applied. However, even if plaintiff had a property or liberty interest under the Constitution and defendant 1zl- acting under color of state law deprived him of it, plaintiff's claim would still fail because there has been no claim of denial of due process. Thus, the Court finds that plaintiff cannot, as a matter of law, establish a ¤ 1983 claim premised upon deprivation of his First or Fourteenth Amendment rights. Therefore, the Court grants defendants' motion for summary judgement as to this claim. III. Contract Dispute Having disposed of plaintiff's First Amendment claim, and plaintiff having raised no allegation of due process violations, all that remains is a contract dispute. Where, as here, plaintiff has no First Amendment right or due process violation claim, a federal cause of action is not created where the real basis for suit is breach of contract. Not every controversy involving an alleged breach of contract by a government official or agency states a claim under the Constitution or laws of the United States. Hays v. Port of Seattle, 251 U.S. 233, 237-38 (1920). Under New York Law, a party suing New York State for breach of contract must bring suit in the Court of Claims. (Ct. CI. Act ¤ 9(2) (McKinney 15 1989)). To the extent that the parties have raised claims for breach of contract, the proper forum for the resolution of those claims is state court4. CONCLUSION For the reasons set forth above, the Court denies plaintiff's motion for summary judgment on his First and Fourteenth Amendment claim and on his claim seeking injunctive relief under 42 U.S.C. ¤ 1983, grants defendants' motion for summary judgment and dismisses the complaint. The Clerk of the Court is directed to enter judgment for defendants. IT IS SO ORDERED. UNITED STATES DISTRICT COURT Dated: February,2;L, 1994 4 Because this Court makes no determination as to the contract claims, it does not addrcss the Eleventh Amendment immunity defenses raised by defendants. 16

Other references:
SRL and Art Censorship