LOMBARD et al. v. LOUISIANA.

No. 58.

Argued November 5-7, 1962.

Decided May 20, 1963.

John P. Nelson argued the cause for petitioners. With him on.the brief were Carl Rachlin, Judith P. Vladeck, .Robert F. Collins, Nils R. Douglas and Janet M. Riley.

Jack P. F. Gremillion, Attorney General of Louisiana, argued the cause for respondent. With him on the brief were Michael E. Culligan and William P. Schuler, Assistant Attorneys General.

Solicitor General Cox, by special leave of Court., argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Marshall, Ralph S'. Spritzer, Louis F. Claiborne, Harold H. Greene, Howard A. Glickstein and Richard K. Berg.

Mr. Chief Justice Warren

delivered the opinion of the Court.

This case presents for review trespass convictions result-, ing from an attempt by Negroes to be served in a privately owned restaurant customarily patronized only by whites. However, unlike a number of the cases this day decided, no state statute or city ordinance here forbids desegregation of the races in all restaurant facilities. Nevertheless, we conclude that this case is governed by the principles announced in Peterson v. City of Greenville, ante, p. 244, and that the convictions for this reason must be reversed.

Petitioners are three Negro and one white college students. On September 17, 1960, at about 10:30 in the morning they entered the McCrory Five and Ten Cent Store in New Orleans, Louisiana. They sat down at a refreshment counter at the back of the store and requested service, which was refused. Although no sign so indicated, the management operated the counter on a segregated basis, serving only white patrons. The counter was designed to accommodate 24 persons. Negroes were welcome to shop in other areas of the store. The restaurant manager, believing that the “unusual circumstance” of Negroes sitting at the counter created an “emergency,” asked petitioners to leave and, when they did not do so, ordered that the counter be closed. The restaurant manager then contacted the store manager and called the police.' He frankly testified that the petitioners did not cause any disturbance, that they were orderly, and that he asked them to leave because they were Negroes. Presumably he asked the white petitioner to leave because he was in the company of Negroes.

A number of police officers, including a captain and major of police, arrived at the store shortly after they were called. Three of the officers had a conference with the store manager. The store manager then went behind the counter, faced petitioners, and in a loud voice asked them to leave.’ He also testified that the petitioners were merely sitting quietly at the counter throughout these happenings. When petitioners remained seated, the police major spoke to petitioner Goldfinch, and asked him what they were doing there. Mr. Goldfinch .replied that petitioners “were going to sit there until they were going to be served.” When petitioners still declined to leave, they were arrested by the police, led out of the store, and taken away in a patrol wagon. They were later tried and convicted for violation of the Louisiana criminal mischief statute.1 This statute, in its application to’ this case, has all the elements of the usual trespass statute. Each petitioner was sentenced to serve 60 days in the Parish Prison and to pay a fine of $350. In default of payment of the fine, each was to serve 60 additional days in prison. On appeal to the Supreme Court of Louisiana the judgments of conviction were affirmed. 241 La. 958, 132 So. 2d 860. Because of the substantial federal questions presented, we granted certiorari. 370 U. S. 935.

Prior to this occurrence New Orleans city officials, characterizing conduct such as petitioners were arrested for as “sit-in demonstrations,” had determined that such attempts to secure desegregated service, though orderly and possibly inoffensive to local merchants, would not be permitted.

Exactly one week earlier, on September 10, 1960, a like occurrence had taken place in a Woolworth store in the same city. In immediate reaction thereto the Superintendent of Police issued a highly publicized statement which discussed the incident and stated that “We wish to urge the parents of both white and Negro students who participated in today’s sit-in demonstration to urge upon these young people that such actions are not in the community interest. . . . [W]e want everyone to fully understand that .the police department and its personnel is ready and able to enforce the laws of the city of New Orleans and the state of Louisiana.” 2 On September 13, four days before petitioners’ arrest, the Mayor of New Orleans issued an unequivocal statement condemning such conduct and demanding its cessation. This statement was also widely publicized; it read in part:

“I have today directed the superintendent of police that no additional sit-in demonstrations . . . will be permitted . . . regardless of the avowed purpose or intent of the participants ....

“It is my determination that the community interest, the public safety, and the economic welfare of this city require that such demonstrations cease and that henceforth they be prohibited by the police department.” 3

Botñ statements were publicized in the New Orleans Times-Picayune. The Mayor and the Superintendent of Police both testified that, to their knowledge, no eating establishment in New Orleans operated desegregated eating facilities.

Both the restaurant manager and the store manager asked the petitioners to leave. Petitioners were charged with failing to leave at the request of the store manager. There was evidence to indicate that the restaurant manager asked petitioners to leave in obedience to the directive of the city officials. He told them that “I am not allowed to serve you here. . . . We have to sell to you at the rear of the store where we have a colored counter.” (Emphasis supplied.) And he called the police “[a]s a matter;of routine procedure.” The petitioners testified that when they did not leave, the restaurant manager whistled and the employees removed the stools, turned off the lights, and put up a sign saying that the counter was closed. One petitioner stated that “it appeared to be a very efficient thing, everyone knew what to do.” The store manager conceded that his decision to operate a segregated facility “conform [ed] to state policy and practice” as well as local custom. When asked whether “in the last 30 days to 60 days [he had], entered into any conference with other department store managers here in New Orleans relative to sit-in problems,” the store manager stated: “[w]e have spoken of it.” The above evidence all tended to indicate that the store officials’ actions were coerced by the city. But the evidence of coercion was hot fully developed because the trial judge forbade petitioners to ask questions directed to that very issue.

But we need not pursue this inquiry further. A State; or a city, may act as authoritatively through its executive as through its legislative body. See Ex parte Virginia, 100 U. S. 339, 347. As we interpret the New Orleans city officials’ statements, they here determined that the city would not permit Negroes to seek desegregated service in restaurants. Consequently, the city must be treated exactly as if it had an ordinance prohibiting such conduct. We have just held in Peterson v. City of Greenville, ante, p. 244, that where an ordinance makes it unlawful for owners or managers of restaurants to seat whites and Negroes together, a conviction under the State’s criminal processes employed in a way which enforces the discrimination mandated by that ordinance cannot stand. Equally the State cannot achieve the same result by an official command which has at least as much coercive effect as an ordinance. The official command here was to direct continuance of segregated service in restaurants, and to prohibit any conduct directed toward its discontinuance; it was not restricted solely to preserve the public peace in .a nondiscriminatory fashion in a situation where violence was present or imminent by reason of public demonstrations. Therefore here, as in Peterson, these convictions, commanded as they were by the voice of the State directing segregated service at the restaurant, cannot stand. Turner v. City of Memphis, 369 U. S. 350.

Reversed.

[For opinion of Mr. Justice Harlan, see ante, p.-248.]

1

La. Rev. Stat., 1950 (Cum.'Supp. 1960), § 14:59 (6), provides in pertinent part:

“Criminal mischief is the intentional performance of any of the following acts:

“(6) Taking temporary possession of any part or parts of a place of business, or remaining in a place of business after the person in charge of such business or portion of such business has ordered such person to leave the premises and to desist from the temporary possession of any part or parts of such business.”

2

The full text of the statement reads:

“The regrettable sit-in activity today at the lunch counter of a Canal st. chain store by several young white and Negro persons causes me to issue .this statement to the citizens of New Orleans.

“We urge every adult and juvenile to read this statement carefully, completely and calmly.

“First, it is important that all citizens of our community understand that this sit-in demonstration was initiated by a very small group.

“We firmly believe that they do not reflect the sentiments of the great majority of responsible citizens, both white and Negro, who make up our population.

“We believe it is most important that the mature responsible citizens of both races in this city understand that and that they continue the exercise of sound, individual judgment, goodwill and a sense of personal and community responsibility.

“Members of both the white and Negro groups in New Orleans for the most part are aware of the individual’s obligation for good conduct — an obligation both to himself-and to his community. With the exercise of continued, responsible law-abiding conduct by all persons, we see no reason for any change whatever in the normal, good race-relations that have traditionally existed in New Orleans.

“At the same time we wish-to say-to every adult and juvenile in this city that the police department intends to maintain peace and order.

“No one should have any concern or question over either the intent or the ability of this department to keep and preserve peace and order.

“As part of its regular operating program, the New Orleans police department is prepared to take prompt and effective action against any person or group who disturbs the peace or creates disorder on public or private property.

“We wish to urge the parents of both white and Negro students who participated in today’s sit-in demonstration to urge upon these young people that such actions are not in the community interest.

“Finally, we want everyone to fully understand that the police department and its personnel is ready and able to enforce the laws of the city of New Orleans and the state of Louisiana.”

3

The full text of the Mayor’s statements reads:

“I have today directed the superintendent of police that no additional sit-in demonstrations or so-called peaceful picketing outside retail stores by sit-in demonstrators or their sympathizers will be permitted.

• “The police department, in my judgment, -has handled the initial sit-in demonstration Friday and the follow-up picketing-' activity Saturday in an efficient and creditable manner. This is in keeping with the oft-announced policy of the New Orleans city government that peace and order in our city will be preserved.

“I have carefully reviewed the reports of these two initial demonstrations by a small group of misguided white and Negro students, or former students. It is my considered opinion that regardless of the avowed purpose or intent of the participants, the effect of such demonstrations is not in the public interest of this community.

“Act 70 of the 1960 Legislative session redefines disturbing the peace to include ‘the commission of any act as would foreseeably disturb or alarm the public.’

“Act 70 also provides that persons who seek to prevent prospective customers from entering private premises to transact business shall be guilty of disorderly conduct and disturbing the peace.

“Act 80 — obstructing, public passages — provides that ‘no person shall wilfully obstruct the free, convenient, and normal use of any public sidewalk, street, highway, road, bridge, alley or other passage way or the entrance, corridor or passage of any public building, structure, water craft or ferry by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein.’

“It is my determination that the community interest, the public safety, and the economic welfare of this city require that such demonstrations cease and that henceforth they be prohibited by the police department.”

Mr. Justice Douglas,

concurring.

While I join the opinion of the Court, I have concluded it necessary to state with more particularity why Louisiana has become involved to a “significant extent” (Burton v. Wilmington Parking Authority, 365 U. S. 715, 722) in denying equal protection of the laws to petitioners.

I.

The court below based its affirmance of these convictions on the ground that the decision to segregate this restaurant was a private choice, uninfluenced by the officers of the State. State v. Goldfinch, 241 La. 958, 132 So. 2d 860. If this were an intrusion of a man’s home or yard or farm or garden, the property owner could seek and obtain the aid of the State against the intruder. ' For the Bill of Rights, as applied to the States through the Due Process Clause of the Fourteenth Amendment, casts its weight on the-side of the privacy of homes. The Third Amendment with its ban on the quartering of soldiers in private homes radiates that philosophy. The Fourth Amendment, while concerned with official invasions of privacy through searches and seizures, is eloquent testimony of the sanctity of private premises. For even when the police enter private precincts they must, with rare exceptions, come armed with a warrant issued by á magistrate. A private person has no standing to obtain even limited access. The principle that a man's home is his castle is basic to our system of jurisprudence.

But a restaurant, like the other departments of this retail store where Negroes- were served, though private property within the protection of the Fifth Amendment, has no aura of constitutionally protected privacy about it. Access by the public is the very reason for its existence.

“Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Marsh v. Alabama, 326 U. S. 501, 506.

The line between a private business and.a public one has been long and hotly contested. New State Ice Co. v. Liebmann, 285 U. S. 262, is one of the latest cases in a long chain: The Court, over the dissent of Mr. Justice Brandeis and Mr. Justice Stone, held unconstitutional an Oklahoma statute requiring those manufacturing ice for sale and distribution to obtain a license from the State. Mr. Justice Brandeis dissent was in the tradition of an ancient doctrine perhaps best illustrated1 by German Alliance Ins. Co. v. Kansas, 233 U. S. 389, which upheld a Kansas statute that regulated fire insurance rates. Mr. Justice McKenna, writing for the Court, said, “It is the business that is the fundamental thing; property is but its instrument, the means of rendering the service which has become of public interest.” Id., 408. Cf. Ferguson v. Skrupa, 372 U. S. 726.

Some of the cases reflect creative attempts by judges to make innkeepers, common carriers, and the like perform the public function of taking care of all travelers.2 Others involve the power of the legislature to impose various kinds of restraints or conditions on business. As a result of the conjunction of various forces, judicial and legislative, it came to pass that “A large province of industrial activity is under the joint sovereignty of the market and the state.” 3

The present case would be on all fours with the earlier ones holding that a business may be regulated when it renders a service which “has become of public interest” (German Alliance Ins. Co. v. Kansas, supra, 408) if Louisiana had declared, as do some States,4 that a business may not refuse service to a customer, on account of race and the. proprietor of the restaurant were charged with violating this statute. We should not await legislative action before declaring that state courts cannot enforce. this type of segregation. Common-law judges fashioned the rules governing innkeepers and carriers.5 As stated by Holt, C. J., in Lane v. Cotton, 12 Mod. 472, 484 (1701):

“Wherever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him .... If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the king’s subjects that will employ him in the way of his trade. If an innkeeper refuse to entertain a guest where his house is not full, an action will lie against him, and so against a carrier, if his horses be not loaded, and he refuse to take a packet proper to be sent by a carrier.” 6

Judges who fashioned those rules had no written constitution as a guide. There were, to be sure, criminal statutes that regulated the common callings.7 But the civil remedies were judge made. We live under a constitution that proclaims equal protection of the laws. That standard is our guide. See Griffin v. Illinois, 351 U. S. 12 ; Douglas v. California, 372 U. S. 353. And under that standard business serving the public cannot seek the aid of the state police or the state courts or the state legislatures to foist racial segregation in public places tinder its ownership and control. The constitutional protection extends only to “state” action, not to personal action. But we have “state” action here, wholly apart from the activity of the Mayor and police, for Louisiana has interceded with its judiciary to put criminal sanctions behind racial discrimination in public places. She may not do so consistently with the Equal Protection Clause of the Fourteenth Amendment.

•The criminal penalty (60 days in jail and a $350 fine) was imposed on these petitioners by Louisiana’s judiciary. That action of the judiciary was state action. Such are the holdings in Shelley v. Kraemer, 334 U. S. 1, and Barrows v. Jackson, 346 U. S. 249.8 Those cases involved restrictive covenants. Shelley v. Kraemer was a civil suit to enjoin violation of a restrictive covenant by a Negro purchaser. Barrows v. Jackson was a suit to collect damages for violating a restrictive covenant by selling residential property to a Negro. Those cases, like the present one, were “property” cases. In those cases, as in the present one, the line, was drawn at dealing with Negroes. There, as here, no state legislature was involved, only the state judiciary. The Court, said in Shelley v. Kraemer:

“That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court.” 334 U. S., at 14.

The list of instances where action of the state judiciary is state action within the meaning of the Fourteenth Amendment is a long one. Many were noted in. Shelley v. Kraemer, 334 U. S., at 14-18. Most state convictions in violation of the First, Fourth, or Fifth Amendment, as incorporated in the Due Process Clause of the Fourteenth Amendment, have indeed implicated not the state legislature but the state judiciary, or the state judiciary and the state prosecutor and the state police. Shelley v. Kraemer — and later Barrows v. Jackson — held that the state judiciary, acting alone to enforce private discrimination against Negroes who desired to buy private property in residential areas, violated the Equal Protection Clause of the Fourteenth Amendment.

Places of public accommodation such as retail stores, restaurants, and the like render a “service which has become of public interest” (German Alliance Ins. Co. v. Kansas, supra, 408) in the manner of the innkeepers and common carriers of old. The substance of the old common-law rules has no direct bearing on the decision required in this case. Restaurateurs and owners of other places of amusement and resort have never been subjected to the same duties as innkeepers and common carriers.9 But, what is important is that this whole body of law was a response to the felt needs of the times that spawned it.10 In our time, the interdependence of people has greatly increased; the days of laissez faire have largely disappeared; men are more and more dependent on their neighbors for services as well as for housing and the other necessities of life. By enforcing this criminal mischief statute, invoked in the manner now before us, the Louisiana courts are denying some people access to the mainstream of our highly interdependent life solely because of their race. Yet, “If there is any one .purpose of the Fourteenth Amendment that is wholly outside the realm of doubt, it is that the Amendment was designed to bar States from denying to. some groups, on account of their race or color, any rights, privileges, and opportunities accorded to other groups.” Oyama v. California, 332 U. S. 633, 649 (concurring opinion).

An innkeeper or common carrier has always been allowed to' exclude drunks, criminals and' diseased persons, but only because the public’s interest in protecting his and his guests’ health and property outweighs its interest in providing accommodations for this small group of travelers.11 As a general rule, innkeepers and carriers cannot refuse their services on account of race; though the rule developed in this country that they can provide “separate but equal” facilities.12 And for a period of our history even,this Court upheld state laws giving sanction to such a rule. Compare Plessy v. Ferguson, 163 U. S. 537, with Gayle v. Browder, 352 U. S. 903, affirming, 142 F. Supp. 707. But surely Shelley v. Kraemer, supra, and Barrows v. Jackson, supra, show that the day has passed when an innkeeper, carrier, housing developer, or retailer can draw a• racial' line, refuse service to some on account of color, and obtain the aid of a State in enforcing his personal bias by sending outlawed customers to prison or exacting fines from them.

Business, such as this restaurant, is still private property. ' Yet there is hardly any private enterprise that does not feel the pinch of some public regulation — from price control, to health and fire inspection, to zoning, to safety measures, to minimum wages and working conditions, to unemployment insurance. When the doors of a business are open to the public, they must be open to all regardless of race if apartheid is not to become engrained in our public places. It cannot by reason of the Equal Protection Clause become so engrained with the aid of state courts, state legislatures, or state police.13

II.

There is even greater reason to bar a State through its judiciary from throwing its weight on the side of racial discrimination in the present case, because we deal here with a place of public accommodation under license from, the State. This is the idea I expressed in Garner v. Louisiana, 368 U. S. 157, where another owner of a restaurant refused service to a customer because he was a Negro. That view is not novel; it.stems from the dissent of the first Mr. Justice Harlan in the Civil Rights Cases, 109 U. S. 3, 58-59:

“In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of the State, because they are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial, by these instrumentalities of the State, to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the State, within the meaning of the Fourteenth Amendment. If it be not, then that race is left, in respect of the civil rights in question, practically at the mercy of corporations and individuals wielding power under the States.”

The nexus between the State and the private enterprise may be control, as in the case of a state agency. Pennsylvania v. Board of Trusts, 353 U. S. 230. Or the nexus may be one of numerous other devices. “State support of segregated schools through any arrangement, management, funds, or property cannot be squared” with the Equal Protection Clause. Cooper v. Aaron, 358 U. S. 1, 19. Cf. Hampton v. Jacksonville, 304 F. 2d 320. A state-assisted enterprise serving the public does not escape its constitutional duty to serve all customers irrespective of race, even though its actual operation is in the hands of a lessee. Burton v. Wilmington Parking Authority, 365 U. S. 715. Cf. Boynton v. Virginia, 364 U. S. 454. State licensing and surveillance.of a business serving the public also brings its service into the public domain. This restaurant needs a permit from Louisiana to operate;14 and during the existence of the license the State has broad powers of visitation and control.15 This restaurant is thus an instrumentality of the State since the State charges it with duties to the public and supervises its performance. The State's interest in and activity with regard to its restaurants extends far beyond any mere income-producing licensing requirement.

There is no constitutional way, as I see it, in which a State can license and supervise a business serving the public and endow it with the authority to manage that business on the basis of apartheid, which is foreign to our Constitution.

1

See Hamilton, Affectation with Public Interest, 39 Yale L. J. 1089,-1098-1099.

2

See Jeremy, The Law of Carriers, Inn-Keepers, etc. (1815), 4-5, 144 — 147; Tidswell, The Innkeeper’s Legal Guide (1864), c. 1; Schouler, Law of Bailments (2d ed. 1887), §.§274-329, 330-341; Beale, The Law of Innkeepers and Hotels (1906), passim; 1 Wyman, Public Service Corporations (1911), §§1-5; Burdick, The Origin of the Peculiar Duties of Public Service Companies, 11 Col. L. Rev. 514, 616; Arterburn, The Origin and First Test of Public Callings, 75 U. of Pa. L. Rev. 411'.

3

Hamilton, supra, note 1, p. 1110..

4

See, e. g., McKinney’s Cons. N. Y. Laws, Vol. 8, Art, 4; id., Vol. 18, Art. 15; N. J. Stat. Ann., Tit. 10; id., Tit. 18, c. 25; Cal. Civ. Code § 51. Cf. Cal. Health and Safety Code, §§35700. (1962 Supp.) et seq.; Burks v. Poppy Constr. Co., 57 Cal. 2d 463, 370 P. 2d 313; Martin v. New York, 22 Misc. 2d 389, 201 N. Y. S. 2d 111. See generally, Greenberg, Race Relations and American Law, 101-114 (1959) ; 7 St. Louis U. L. J. 88 (1962).

5

See Schouler, op. cit., supra, note 2, §§ 274, 335; Wyman, op. cit., supra, note 2, § 1; Arterburn, supra, note 2.

6

See also White’s Case (1558), 2 Dyer 158.b.; Warbrooke v. Griffin (1609), 2 Brownl. 254; Bennett v. Mellor (1793), 5 Term Rep. 273; Thompson v. Lacy (1820), 3 B. & Aid. 283.

For criminal prosecutions, see, e. g., Rex v. Ivens (1835), 7 Car. & P. *213; Regina v. Sprague (1899), 63 J. P. 233.

For a collection of the English cases, see 21 Halsbury’s Laws of England (3d ed. 1957) 441 et seq.; 10 Mews’ Dig. Eng. Cas. L. to ' 1924, pp. 1463 et seq.

7

Arterburn, supra, note 2.

8

See also Abstract Investment Co. v. Hutchinson, 204 Cal. App. 2d 242, 251, 22 Cal. Rptr. 309, 317; 10 U. C. L. A. L. Rev. 401.

9

See Marrone v. Washington Jockey Club, 227 U. S. 633; Madden v. Queens County Jockey Club, 296 N. Y. 249, 72 N. E. 2d 697; Alpaugh v. Wolverton, 184 Va. 941, 36 S. E. 2d 906; Nance v. Mayflower Tavern, 106 Utah 517, 150 P. 2d 773.

10

Wyman, op. cit., supra, note 2, §§ 1, 2-16, 330; Schouler, op. cit., supra, note 2, §§274, 335; Beale, op. cit., supra, note 2, c. I; Arterburn, supra, note 2, 420-426.

11

Wyman, op. cit., supra, note 2, c. 18; Schouler, op. cit., supra, note 2, §§ 320, 322.

12

Compare, e. g., Constantine v. Imperial Hotels, [1944] 1 K. B. 693; Wyman, op. cit., supra, note 2, §§361, 565, 566, with State v. Steele, 106 N. C. 766, 782, 11 S. E. 478, 484.

13

See generally, Pollitt, Dime Store Demonstrations: Events and Legal Problems of First Sixty Days, 1960 Duke L. J. 316, 350-365; Henkin, Shelley v. Kraemer: Notes for a Revised Opinion, 110 U. of Efc. L. Rev. 473.

14

Under the provisions of Article 7.02 of the Sanitary Code, promulgated by the State Board of Health pursuant to La. Rev. Stat. §40:11, no person shall operate a public eating place of any kind in the State of Louisiana unless he has been issued a permit to operate by the local health officer; and permits shall be issued only to persons ..whose establishments comply with the requirements of the Sanitary Code.-

15

Under La. Rev. Stat., Title 40, §§ 11, 12, 15, 16, 52, and 69, state and local health officials closely police the provisions of the Sanitary Code. They may “enter, examine, and inspect all grounds, structures, public buildings, .and public places in execution of a warrant issued in accordance with the constitution. and laws of Louisiana,” and “arrest ... all persons violating an)' rule or regulation of the board or any article or provision of the sanitary code . . . .” Penalties are provided for code-violations. See also New Orleans City Code, 1956, §§ 29-55, 56, and 58; Home Rule Charter of the City of New Orleans, § 4r-1202 (2).

Kristopher OKWEDY, Keyword Ministries, Inc., Plaintiffs— Appellants, v. Guy V. MOLINARI, individually and in his official capacity as President of the Borough of Staten Island, New York, PNE Media, John Doe Nos. 1-5, Jane Doe Nos. 1-5, Defendants—Appellees.

Docket No. 01-7941.

United States Court of Appeals, Second Circuit.

Argued: April 24, 2002.

Decided: June 24, 2003.

Michael J. DePrimo (Brian Fahling and Stephen M. Crampton, on the brief) AFA Center for Law & Policy, Tupelo, Miss., for Appellants.

Kathleen Alberton, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, Larry A. Sonnenshein, and Dana Biber-man, of counsel, on the brief), City of New York, New York, N.Y., for Appellee Guy Molinari.

Donald Rosenthal, Rosenthal Judell & Uchima, New York, N.Y., for Appellee PNE Media.

Before: F.I. PARKER, STRAUB, and SOTOMAYOR,. Circuit Judges.

PER CURIAM.

Plaintiffs-appellants, Kristopher Okwedy and Keyword Ministries, Inc., appeal from a judgment entered July 23, 2001 in the United States District Court for the Eastern District of New York (Nina Gershon, Judge), dismissing their complaint against defendants-appellees, Guy V. Molinari, the Borough President of Staten Island, and PNE Media, LLC (“PNE”), a company that produces and displays billboards. The complaint alleges that plaintiffs contracted with PNE to post billboards that quoted four different translations of Leviticus 18:22 denouncing homosexuality as an abomination, loathsome, detestable, and an enormous sin. The billboards were located in or near Staten Island neighborhoods containing a significant number of gay and lesbian residents. Following several days of public controversy, Molinari faxed a letter to PNE regarding the billboards, and before the day was out PNE removed plaintiffs’ signs from the billboards. The complaint includes claims under 42 U.S.C. §§ 1983, 1985(3) and 1986 based on defendants’ alleged violation of plaintiffs’ rights under the Free Speech, Establishment and Free Exercise Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and various state common law and statutory claims. The district court dismissed all of plaintiffs’ federal claims for failure to state a claim, and declined to exercise supplemental jurisdiction over plaintiffs’ state-law claims.

On appeal, plaintiffs raise a number of challenges to the district court’s dismissal of their claims, all but one of which we consider in a summary order issued separately from this opinion, and filed today. We write here only to make clear that a public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiffs First Amendment rights even if the public-official defendant lacks direct regulatory or decisionmaking authority over the plaintiff or a third party that facilitates the plaintiffs speech.

I. BACKGROUND

Plaintiffs allege the following facts in their Complaint. Plaintiff Kristopher Ok-wedy is an ordained minister and the pastor of Keyword Ministries, a Christian church dedicated to promoting traditional biblical values. Compl. ¶ 11. He believes, and his religion teaches, that homosexuality is a sin. He further believes that he owes a duty to God both to expose the sin of homosexuality and to proclaim “the good news that homosexuals can be delivered from their sin through the power of Jesus Christ.” Id. ¶ 10.

On February 2, 2000, plaintiffs entered into a contract with defendant PNE that called for PNE to design and produce a billboard sign for plaintiffs, and to display it for one month starting on or about March 1, 2000. On February 11, 2000, Okwedy received a copy of PNE’s artwork for the sign, which he approved with some minor changes on February 14, 2000. On February 22, 2000, plaintiffs and PNE entered into a second contract, calling for PNE to display an additional copy of plaintiffs’ sign on another Staten Island billboard under the same terms as set forth in the first contract.

PNE posted plaintiffs’ signs on March 3, 2000. The signs read:

Word on the Street

4 WAYS TO SAY LEVITICUS 18:22

THOU SHALL NOT LIE WITH MANKIND AS WITH WOMANKIND: IT IS ABOMINATION (KING JAMES)

YOU SHALL NOT LIE WITH A MALE AS WITH FEMALE: THAT WILL BE LOATHSOME (JAMES MOFFAT)

DO NOT LIE WITH A MAN AS WITH A WOMAN: IT IS DETESTABLE (BERKLEY VERSION)

HOMOSEXUALITY IS ABSOLUTELY FORBIDDEN FOR IT IS AN ENORMOUS SIN (LIVING BIBLE)

I AM YOUR CREATOR

J.A. at 29.

Plaintiffs alleged, upon information and belief, that their signs were placed “in or near neighborhoods containing a significant number of persons who either engaged in or approved of homosexual conduct,” Compl. ¶ 18, and that “the content of the signs stirred public opposition among the homosexual community, its supporters, and borough politicians.” Id. 1119.

On March 8, 2000, defendant Guy Moli-nari faxed a letter to PNE under letterhead reading “City of New York[,] President of the Borough of Staten Island.” Id. ¶ 21; J.A. at 31. Molinari’s letter stated:

For the last two days we have attempted to contact your office, without success ....

I write regarding the recent appearance on two of your Staten Island billboards of four translations of Leviticus 18:22. As you are probably aware this particular biblical verse is commonly invoked as a biblical prohibition against homosexuality.

The sponsor for the billboard message is nowhere apparent on the billboard, so I am writing to you with the hope that I can establish a dialogue with both yourself and the sponsor as quickly as possible.

Both you and the sponsor of this message should be aware that many members of the Staten Island community, myself included, find this message unnecessarily confrontational and offensive. As Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.

P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them. I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force ... to discuss further the issues I have raised in this letter.

J.A. at 31.

Later in the day on March 8, PNE issued a statement to the media, a copy of which was faxed to attorney Master at the Borough President’s office, announcing that plaintiffs’ signs had been taken down. The press release declared that PNE had removed the “controversial copy posted on two billboards on Staten Island for failure to comply with PNE guidelines.” Id. at 33. According to the press release, PNE had “ascertained that the copy was inadvertently posted without compliance with [PNE’s] standard requirement that all advertising disclose the identity of the advertiser.” Id. The release added that “[t]he message posted by Pastor Okwedy on these two Staten Island boards does not represent the views of PNE Media, LLC. While PNE respects its advertisers’ free speech rights, PNE itself does not discriminate based on sexual orientation.” Id.

Plaintiffs’ attorney faxed a letter to PNE on March 21, 2000, notifying PNE that it was in breach of contract and demanding that PNE cure the breach by re-posting plaintiffs’ signs on the same billboards for a period of thirty days. PNE responded by sending plaintiffs a check in the amount of $2,515.68, the contract amount pre-paid by plaintiffs.

Okwedy and Keyword Ministries sued PNE, Molinari, and a number of John and Jane Does under 42 U.S.C. § 1983 for violation of the Establishment, Free Speech, and Free Exercise Clauses of the First Amendment and for violation of the Equal Protection Clause of the Fourteenth Amendment; under 42 U.S.C. § 1985(3) for conspiracy to interfere with constitutional rights; and under 42 U.S.C. § 1986 for failing to prevent interference with constitutional rights. Plaintiffs alleged supplemental state-law claims for, among other things, discrimination, breach of contract and tortious interference with contract. They sought actual and punitive damages, declaratory and injunctive relief, and reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988.

On defendants’ motion, the district court dismissed the complaint for failure to state a claim upon which relief may be granted. Okwedy v. Molinari, 150 F.Supp.2d 508 (E.D.N.Y.2001).

II. DISCUSSION

Plaintiffs’ Free Speech Clause claim turns on the question of whether Molinari’s letter to PNE was an unconstitutional “implied threat[ ] to employ coercive state power to stifle protected speech,” or a constitutionally-protected expression by Molinari of his own personal opinion. See Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir.1983). As we noted in Hammerhead, “oral or written statements made by public officials” could give rise to a valid First Amendment claim “[w]here comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.” Id.; see also X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 69-72 (2d Cir.1999) (applying Hammerhead); Ratt-ner v. Netburn, 930 F.2d 204, 209-10 (2d Cir.1991) (same).

The district court held that Molinari’s letter was constitutionally-protected speech because the “letter ... was not reasonably susceptible to a threatening interpretation, and [Molinari] did not have regulatory authority over PNE’s business.” Okwedy v. Molinari, 150 F.Supp.2d at 515. In reaching this conclusion, the district court relied heavily on the latter of these two considerations — the fact that Molinari did not have direct regulatory or decisionmaking authority over PNE. See, e.g., id. at 518 (“Molinari did not have decisionmaking authority over billboards ... [and prior Second Circuit caselaw] emphasized the importance of this fact in finding that the First Amendment rights of the plaintiffs in those cases had not been violated.”); id. at 517-18 (“If, as [Hammerhead and X-Men ] held, public officials who did not have decisionmaking authority in a matter had a right to persuade others not to deal with certain individuals or to participate in disseminating their message ... [defendants in the present case] cannot be found to have acted unconstitutionally [just] because their efforts to persuade [PNE] were successful.”).

Although the existence of regulatory or other direct decisionmaking authority is certainly relevant to the question of whether a government official’s comments were unconstitutionally threatening or coercive, a defendant without such direct regulatory or decisionmaking authority can also exert an impermissible type or degree of pressure. In Hammerhead, we spoke of threats of “some form of punishment or adverse regulatory action.” Hammerhead, 707 F.2d at 39 (emphasis added). Applying this principle, in Rattner we reversed the district court’s grant of summary judgment for defendants (members of the local village council) because we concluded that “the record, taken in the light most favorable to [the plaintiff], reveals statements by [the defendant] that a reasonable factfinder could ... interpret as intimating that some form of punishment or adverse regulatory action would follow if the Gazette [, the village chamber of commerce’s newspaper,] continued to air [plaintiffs] views.” Rattner, 930 F.2d at 209 (internal punctuation omitted). We described the offending conduct of defendants as “threatening [the chamber of commerce and its member businesses] with boycott or discriminatory enforcement of Village regulations if they permitted the publication of additional statements by [the plaintiff].” Id. at 210. In other words, we considered not only the threatened use of official power by defendants (ie., discriminatory enforcement of regulations) but also the threatened use of other coercive means (i.e., a boycott led by the members of the village council) in our analysis of the question of whether defendants’ conduct constituted an unconstitutional threat.

Similarly, in X-Men, although we noted that defendants were “not decisionmakers but merely advocates,” that fact did not end our analysis. X-Men, 196 F.3d at 70. Before rejecting plaintiffs’ argument that the defendant government officials (a former member of the New York State Assembly and a member of the United States House of Representatives) had impermissi-bly interfered with plaintiffs’. First Amendment rights, we also noted that:

While the complaint alleges that the [defendant-] legislators exerted ‘pressure’ on the decisionmakers, there is no allegation that such ‘pressure’ took the form of anything other than speech. Though they are alleged to have communicated with State and federal regulators, a Congressional committee, and the pub-lie, the [defendant-] legislators are not alleged to have threatened the decision-makers in any way or to have engaged in coercive or intimidating conduct.

Id. at 71.

Thus, the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiffs message, is not necessarily dispositive in a case such as this. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiffs First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

In the present case, a jury could find that Molinari’s letter contained an implicit threat of retaliation if PNE failed to accede to Molinari’s requests. In his letter, Molinari invoked his official authority as “Borough President of Staten Island” and pointed out that he was aware that “P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them.” He then “call[ed] on” PNE to contact Daniel L. Master, whom he identified as his “legal counsel and Chair of my Anti-Bias Task Force.” Based on this letter, PNE could reasonably have believed that Molinari intended to use his official power to retaliate against it if it did not respond positively to his entreaties. Even though Molinari lacked direct regulatory control over billboards, PNE could reasonably have feared that Molinari would use whatever authority he does have, as Borough President, to interfere with the “substantial economic benefits” PNE derived from its billboards in Staten Island. Thus, to the extent that the district court concluded that plaintiffs had failed to state a claim because Molinari lacked direct regulatory or decisionmaking authority over PNE’s billboard operations on Staten Island, that conclusion was erroneous.

We recognize that the district court did not rely solely on the fact that Molinari lacked direct regulatory authority over PNE. The court also based its decision on its determinations that “Molinari’s letter is not reasonably susceptible to interpretation as threatening economic harm,” and that because “[t]he letter called for a dialogue” it is not the type of inquiry “that could reasonably be viewed as designed to intimidate.” See Okwedy v. Molinari, 150 F.Supp.2d at 518. However, the district court erred by reaching these conclusions about the intent and effect of the letter. Because the district court was considering a motion to dismiss, it should have viewed the language of Molinari’s letter in the light most favorable to plaintiffs. See, e.g., Rattner, 930 F.2d at 210 (holding that “[t]he district court’s ruling that the language of the [defendant’s] letter, either standing alone or in all the circumstances, is not a veiled threat of boycott or reprisal does not view that language in the light most favorable to [the plaintiff] as the nonmoving party”).

For all of these reasons, we find that the district court erred by dismissing plaintiffs’ Free Speech Clause claim for failure to state a claim. Drawing all reasonable inferences from plaintiffs’ factual allegations in their favor, we conclude that Moli-nari’s letter could be found to contain an implicit threat of retaliation if PNE failed to accede to Molinari’s requests. Therefore, we vacate the portion of the district court’s judgment that dismissed plaintiffs’ Free Speech Clause claim.

III. CONCLUSION

For the foregoing reasons the part of the district court’s judgment that dismissed plaintiffs’ Free Speech Clause claim is VaCated and Remanded to the district court for further proceedings consistent with this opinion. The remaining claims on appeal are dealt with in a Summary Order filed separately. The parties shall bear their own costs.