The opinion of the court was delivered by: Grady, District Judge.
This is an action for an injunction restraining defendants, the
Village of Barrington Hills and its officials, from maintaining
police surveillance of the plaintiff Horst Kraus and his home and
from enforcing the zoning regulations of Barrington Hills. Before
the court is defendants' motion to dismiss. We grant the motion
in part and deny it in part.
In November 1981, plaintiff conferred with the Commander of the
Cook County Vice Squad and informed him fully of the
organization's swinging activities. The Commander decided that
swinging was legal so long as it was consensual and private. On
November 26, 1981, the Barrington Courier published a lengthy
expose of The Happy Medium. Two reporters, posing as a potential
swinging couple, gained admission to the plaintiff's home during
an organizational meeting and published a detailed account of the
members' actions. Four days later the Barrington Hills Village
Trustees met to consider whether action should be taken against
The Happy Medium. A newspaper quoted Trustee Louis Klein as
saying, "Let's do everything to get rid of it." Similar comments
were made by other defendants.
The Police Chief of Barrington Hills and the County Vice Squad
Sargeant reported to the Board that they could do nothing about
plaintiff's activities in his home. Nevertheless, the Board at
the November 30, 1981, meeting voted to take whatever action was
necessary to stop the activities of The Happy Medium.
On December 1, 1981, Mary C. Marre, the Building/Enforcement
Officer of Barrington Hills, wrote to plaintiff informing him
that operation of a private club in his home was a violation of
§ 5-5-2(A) of Barrington Hills' zoning ordinance. Section
5-11-12(B) of the ordinance provides that each day a violation
continues is a separate offense. Section 1-4-1 provides for a
fine of $500.00 for each offense. Plaintiff's residence is zoned
R-1 Residential. Plaintiff contends that Barrington Hills allows
other persons owning property zoned R-1 Residential to engage in
commercial ventures, such as the practice of law, running a
printing shop, and breeding and trading horses.
Barrington Hills has also employed its police in an attempt to
end the activities at plaintiff's home. Police officers have been
instructed to stop and ticket for the most trivial of violations
all cars turning into plaintiff's property. Squad cars are
stationed near the entrance to plaintiff's property on Saturday
nights during meetings of The Happy Medium. Cars entering and
leaving the property are surveilled and their license plate
Plaintiff contends that Barrington Hills is applying its zoning
ordinances arbitrarily, capriciously and selectively against him
in order to end the activities of The Happy Medium. Barrington
Hills' actions have allegedly violated plaintiff's First, Fourth
and Fourteenth Amendment rights. Plaintiff asks that the court
enjoin Barrington Hills and its agents from continuing their
actions against plaintiff, his guests, and The Happy Medium.
Plaintiff also asks for $1 million in compensatory and punitive
To support a § 1983 claim, plaintiff must allege that a
constitutional right has been violated. Plaintiff claims the
activities on his premises are protected by the guarantees of
freedom of speech, assembly and association, and the right to
Defendants, in their brief, argue that the club is commercial
in nature and therefore has no fundamental constitutional privacy
or associational rights. They claim that the size of The Happy
Medium, its weekly meetings, and the fact that couples come from
at least three states rebuts any claim that a purely personal or
friendship relationship is involved. In support of their
contention, defendants cite Stratton v. Drumm, 445 F. Supp. 1305,
1978); Brown v. Haner, 410 F. Supp. 399, 401 (W.D.Va. 1976);
Cornelius v. Benevolent Protective Order of Elks, 382 F. Supp. 1182
(D.Conn. 1974); Paris Adult Theatre I v. Slaton,
413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). While these cases do
indicate that associational activities that are purely commercial
do not come within the core protection of the right to associate,
they do not support the proposition that a club which accepts a
small donation from its members is thereby transformed into a
commercial enterprise. Consequently, we reject this argument.
Next, defendants argue that even if The Happy Medium is a
noncommercial organization, its activities — consensual exchange
of sexual partners — are not protected by the Constitution.
The First Amendment contemplates freedom of speech, press,
assembly and petition. By implication, it also contemplates
freedom of association — a derivative of the specified freedoms.
NAACP v. Alabama, ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163,
2 L.Ed.2d 1488 (1958).*fn1 Plaintiff contends that his right to
association with others in the way he desires is at stake in this
case. In cases involving freedom of speech, the Supreme Court has
protected advocacy which was not "directed to inciting or
producing imminent lawless action" or "likely to incite or
produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89
S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). We believe this same
principle applies to the derivative freedom of association.
Absent associational activities which are illegal or would incite
illegal actions, the freedom of association is inviolate. Here,
the members of The Happy Medium participate in sexual activities
— including adultery — which many would consider immoral. The
Illinois statutes, however, only prohibit sexual activities that
are "open and notorious." Ill.Rev.Stats. ch. 38, §§ 11-7, 11-8.*fn2
One of the four basic premises underlying the Act was "protection
of the public from open and notorious conduct which disturbs the
peace, tends to promote breaches of the peace, or openly flouts
accepted standards of morality in the community." Ill.Rev.Stats.
ch. 38, § 11-1 et seq. (Smith-Hurd Committee Comments — 1961).
The Happy Medium conducts its meetings and activities entirely
within the residence of plaintiff. We do not believe that sexual
activities behind closed doors jeopardize the public peace; nor
does it appear at this stage of the proceeding that
the activity is "open" within the meaning of the criminal
The litmus test of constitutionality is not whether conduct is
distasteful. Advocating adultery has long been protected under
the First Amendment. Kingsley International Pictures Corp. v.
Regents of the University of the State of New York, 360 U.S. 684,
79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959). The Supreme Court in
Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84
L.Ed. 1213 (1940), in discussing the First Amendment freedom of
religious faith and political belief, stated: "The essential
characteristic of these liberties is that under their shield many
types of life, character, opinion and belief can develop
unmolested and unobstructed." We believe that freedom of
association offers a similar shield.
Having said all this, it does not avail the plaintiff Kraus
that the conduct of the members of The Happy Medium is protected
by freedom of association. Kraus has failed to allege sufficient
injury to support his claim that his own freedom of association
has been infringed. It is well established that:
The Article III judicial power exists only to redress
or otherwise to protect against injury to the
complaining party, even though the court's judgment
may benefit others collaterally. A federal court's
jurisdiction therefore can be invoked only when the
plaintiff himself has suffered "some threatened or
actual injury resulting from the putatively illegal
action. . . ." Linda R.S. v. Richard D.,
410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).
See Data Processing Service v. Camp, 397 U.S. 150,
151-54, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970).
Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45
L.Ed.2d 343 (1975). Plaintiff must allege a distinct and palpable
injury to himself.
Here, Kraus' alleged injury is that he is being prosecuted
discriminatorily for zoning ordinance violations, police cars are
stationed near the entrance to his property, his guests are
ticketed for trivial reasons, and his guests' cars are
surveilled. Of these alleged injuries, only the prosecution of
Kraus for zoning ordinance violations directly injures him.
Neither the stationing of the police cars on the public street
near the entrance to Kraus' property, nor the harassment or
surveillance of the cars entering or leaving the property, appear
to affect Kraus' associational rights in a direct way. That
police cars surveil the property apparently has not forced a
cessation of the meetings of The Happy Medium. Nor have members
been deterred from attending because police have stopped them for
minor violations. Plaintiff does not allege that his guests were
innocent of the violations for which they were stopped. ...