actions by defendants were and continue to be motivated by the race and religion of the X–Men's officers and employees. By terminating the X–Men's contract the defendants' actions have in essence “black balled” plaintiff X–Men and Richards from participating in contracts which receives [sic ] government subsidies on the basis of their race and religion.
do not give rise to an inference that the Private Defendants were motivated by racial animus either to terminate X–Men's month-to-month contract or in failing to award them the new contract after competitive bidding. No allegations are made that evidence a pattern of discriminatory conduct by the Private Defendants and no statements reflecting an intent to discriminate are attributed to Jereski or Silberman. Carefully read, the complaint actually rebuts the suggestion that the Private Defendants possessed discriminatory intent.
The right of association encompasses the right to associate for the purpose of engaging in those activities protected by the First Amendment, including the exercise of religion. Roberts v. United States Jaycees, 468 U.S. 609, 617–18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). In this regard, the complaint alleges that Polonetsky and King conspired to bring about termination of the contract based on X–Men's affiliation, which is religious in nature, with the Nation of Islam and Farrakhan. Compl. ¶ 45. It further states that Polonetsky circulated false *64 statements connecting X–Men to Farrakhan and the Nation of Islam in furtherance of his unlawful purpose, and that he and King acted to exclude X–Men from the competitive bidding process. These acts allegedly exerted pressure on the Private Defendants and led to termination of the contract and thus are sufficient to raise an inference that X–Men were retaliated against based on their association with the Nation of Islam and Farrakhan.
Polonetsky and King have moved to dismiss the complaint for failure to state a claim and it appears that little discovery has taken place in this case. Their assertion of the qualified immunity defense is therefore premature. The better time for determining the issue is on a motion for summary judgment.... Accordingly, their motion to dismiss on this ground should be denied.
It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate “errands” performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called “news letters” to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections.
[I]t may be doubted that any of the great liberties insured by the First A [mendment] can be given higher place than the others. All have preferred position in our basic scheme. Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 [ (1939) ]; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 [ (1940) ]. All are interwoven there together. Differences there are, in them and in the modes appropriate for their exercise. But they have unity in the charter's prime place because they have unity in their human sources and functionings. Heart and mind are not identical. Intuitive faith and reasoned judgment are not the same. Spirit is not always thought. But in the everyday business of living, secular or otherwise, these variant aspects of personality find inseparable expression in a thousand ways. They cannot be altogether parted in law more than in life.
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