dissenting:
With all due respect to my learned colleagues, I feel compelled to cast my lot with District Judge Goettel. Netburn’s letter to the Director of the Chamber of Commerce is quoted in its entirety in the majority opinion. There can be no dispute as to its contents. Like Judge Goettel, I see nothing in the letter that can be construed as a threat of any kind. Judge Goettel described it as “an expression of [Net-burn’s] frustration and disapproval of the Chamber of Commerce’s involvement in the political arena.” 733 F.Supp. at 171. Judge Goettel continued, “the Netburn letter threatened no legal action or prosecuto-rial follow-up,” neither did it threaten a boycott of local businesses. Id.
Judge Goettel also stated: “The letter contained none of the indicia of a prosecu-torial instrument. Rather, the statements in the letter amounted to a plea to the Chamber of Commerce to rid itself of its political affiliations.” Id. at 170. Judge Goettel concluded: “In the absence of language intimating legal reprisal, the plaintiff’s claim of governmental coercion must fall.” Id. at 171.
The preliminary question whether the letter was sufficiently ambiguous that a jury might find an implied threat is not, itself, a question of fact; it is a question of law. See Tokio Marine & Fire Ins. Co. v. McDonnell Douglas Corp., 617 F.2d 936, 940 (2d Cir.1980); In re Hartford Textile Corp., 588 F.2d 872, 875 (2d Cir.1978), cert. denied, 444 U.S. 870, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979); Parish v. Howard, 459 F.2d 616, 618-20 (8th Cir.1972); Freeman v. Continental Gin Co., 381 F.2d 459, 465 (5th Cir.1967). The letter is before us. It is either ambiguous, or it is not. If, as I believe, it is not, there is no place for a discussion of alleged factual inferences favoring the plaintiff. See Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 745 n. 11, 103 S.Ct. 2161, 2171 n. 11, 76 L.Ed.2d 277 (1983). The issue is one of law, not of fact. Any other rule would seriously curtail the use of summary judgment in meritless cases involving written documents. See Universal Fiberglass Corp. v. United States, 400 F.2d 926, 929 (8th Cir.1968).
In my opinion, Rattner’s contention that his constitutional rights were violated by Netburn’s letter to the Chamber of Commerce trivializes the beneficent motivations for the enactment of 42 U.S.C. § 1983. His claimed damages are illusory at best. Unfortunately, however, should he be awarded as little as one dollar in damages, he could make a claim under 42 U.S.C. § 1988 for the legal fees of the high-priced Manhattan law firms that he saw fit to bring into this frivolous litigation. See DiFilippo v. Morizio, 759 F.2d 231, 234-35 (2d Cir.1985); Nephew v. City of Aurora, 830 F.2d 1547 (10th Cir.1987) (en banc), cert. denied, 485 U.S. 976, 108 S.Ct. 1269, 99 L.Ed.2d 481 (1988). These costs actually are what Rattner is seeking. I agree with Judge Goettel that it is time to bring this travesty of justice to a conclusion. I would affirm.