The opinion of the court was delivered by: BECKER
This is a civil rights action which requires us to define the character of the "classes" against which a 42 U.S.C. § 1985(3) conspiracy may properly be directed. The plaintiffs allege that their apartment lease was not renewed by defendant, the operator of a large private apartment complex, in order "to stifle and discourage (husband) plaintiff's exercise of his freedom of speech and association" as an active member of a tenants association at the apartment complex. The 12(b)(6) motion before us presents the question whether a 1985(3) conspiracy may be directed against the members of a private tenants association in light of the "class-based animus" requirement set forth in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). Concluding that such members do not constitute a proper Griffin "class," we dismiss the complaint.
It is, of course, a common place that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. . . . Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the constitution itself.
Hudgens v. N. L. R. B., 424 U.S. 507, 513, 96 S. Ct. 1029, 1033, 47 L. Ed. 2d 196 (1976). Since plaintiffs have made no allegations of state or federal action, the first ten paragraphs of the amended complaint must be dismissed for failure to state a claim upon which relief can be granted.
More troublesome is the 1985(3) claim.
The amended complaint alleges that defendant and its agents conspired with the Meadowbrook Valley Partnership, the owner of the development, and its agents, to deprive plaintiffs of their First and Fourteenth Amendment rights to speech and association, and that they acted, in furtherance of the conspiracy, by failing to renew plaintiffs' lease. It further alleges that the conspiracy was in retaliation for the plaintiffs' participation in the tenants association. Defendant has moved to dismiss the § 1985(3) claim on three grounds. First, defendant contends that the complaint contains insufficient allegations of a conspiracy in that the alleged co-conspirators are mere agents (or alter egos) of the defendant and that one cannot conspire with oneself. Second, defendant contends that the complaint does not allege a sufficient class-based animus to meet the requirements of § 1985(3). Third, defendant asserts that § 1985(3) can only protect the right of free speech from governmental interference, federal or state, and that there is simply no cognizable right under § 1985(3) to be protected from wholly private infringement of the exercise of the rights of speech or association.
A. Elements of the § 1985(3) Cause of Action
Paragraphs 11-19 of the amended complaint invoke 42 U.S.C. § 1985(3). The elements of this cause of action were enumerated in Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971):
(1) the defendants must conspire
(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal ...