DISSENTING OPINION OF
LEVINSON, J.I dissent.
The tenant in this case asserts that the landlord wishes to evict him because of his tenant union associations and because he, along with other union members, attempted to communicate complaints about the apartment complex to the Lieutenant Governor’s Office and the State Office of Consumer Protection. Eviction for such a reason, argues the tenant, amounts to state action which abridges his rights of freedom of speech and assembly, and his right to petition the government for redress of grievances, all of which are protected by the First Amendment of the United States Constitution1 and article I, section 3 of the Constitution of the State of Hawaii.2
*426I think that the making of such complaints and the association of such tenants are examples of conduct which is afforded protection by the Constitutions of the United States and Hawaii, despite the fact that the shield of HRS § 666-43 (1972 Supp.), which prohibits retaliatory evictions, is not available to the tenant in this case because his complaints were not directed to the Department of Health as required by the statute. The unavailability of the statute, however, in no way affects the tenant’s ability to invoke any existing constitutional defenses to a retaliatory eviction. There is no doubt in my mind that viable constitutional defenses do exist.
The majority states that it believes the landlord’s ownership right of possession and the tenant’s “permissive” right of possession should be balanced. This is an inaccurate and misleading delineation of the issues. The process which this court undertakes actually requires balancing the property rights of the landlord against the freedom of expression rights of the tenant, and it involves constitutional considerations of a greater magnitude than the majority’s analysis indicates.
The majority characterizes the landlord’s use of the summary possession process for purposes of retaliatory eviction as an exercise of his rights of free speech and to petition the government for redress of grievances. In no case that I have been able to discover has a landlord ever argued that retaliatory eviction is constitutionally protected conduct and, needless to say, the majority opinion does not cite any. The most complimentary term which can be used to describe this particular piece of logic is that it is novel; it would be more accurate, however, to say that it reflects a complete failure to comprehend the meaning of the right to freedom of expression.
Finally, the majority suggests that acceptance of the tenant’s contentions would contravene article I, section *42710 of the United States Constitution which prohibits states from passing any law impairing the obligation of contracts. If the majority really believes this, it would have to hold in an appropriate case that HRS § 666-43 (a) (1972 Supp.) is unconstitutional. Such a holding would be contrary to East New York Savings Bank v. Hahn, 326 U.S. 230 (1945); Norman v. Baltimore & O. Ry., 294 U.S. 240 (1935); Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934); Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921).3 Moreover, such an analysis is patently superficial, in view of the fact that *428the U.S. Supreme Court has long held that article I, section 10 “protecting the obligation of contracts against state action is directed only against impairment by legislation and not judgments of courts.” Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451 (1924); accord, Barrows v. Jackson, 346 U.S. 249, 260 (1953). Moreover, the test of impairment is one of reasonableness; the strength of the public interest must be balanced against the reliance and reasonable expectations of those affected. Home Building and Loan Ass’n v. Blaisdell, supra, 290 U.S. 398 (1934). In these particular circumstances, not only are we dealing with a court decision concerned with constitutional principles rather than a legislative act, but the societal interest in prohibiting retaliatory evictions far outweighs any reliance or expectancy interest on the part of landlords.
The landlord cannot ordinarily be denied those rights which accrue as incidents of ownership, including a general right to summary possession. However, when the enforcement of those rights is accomplished by court action, such action may be state action and constitutional prohibitions would then be applicable. Since retaliatory evictions inhibit rights of tenants under the First Amendment of the U.S. Constitution and article I, section 3 of the Hawaii Constitution, judicial enforcement of such evictions constitutes state action, as explained later in this opinion, and should not be decreed.
The conflict between property and civil rights has arisen before the courts in prior cases. In Marsh v. Alabama, 326 U.S. 501 (1946), the question presented was whether a state can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of management. Justice Black, writing for the Court, made the following definitive statement at 509:
When we balance the Constitutional rights of owners of property against those of the people to *429enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position. As we have stated before, the right to exercise the liberties safeguarded by the First Amendment “lies at the foundation of free government by free men” and we must in all cases “weigh the circumstances and . . . appraise the . . . reasons ... in support of the regulation ... of the rights.” Schneider v. State, 308 U.S. 147, 161. In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute. (Footnotes omitted)
The Court concluded that the state’s preference of property rights, through its trespass statute, over First Amendment rights was unconstitutional.
In Edwards v. Habib, 397 F.2d 687 (D.C. Cir. 1968), cert. denied, 393 U.S. 1016 (1969), the tenant claimed eviction in retaliation for the reporting of conditions to the proper authorities, after which forty housing code violations were discovered and the landlord was ordered to repair. The court favorably considered the arguments that the private retaliatory action by the landlord became an impermissible governmental restriction of the tenant’s right to petition the government when it was enforced by the courts, or, even if not, that the tenant’s right to report violations of law is directly protected against private as well as governmental interference. With regard to this discussion the court stated at 695:
The question in the instant case would then be whether a court can consistently with the Constitution prefer the interests of an absentee landlord in *430evicting a tenant solely because she has reported violations o£ the housing code to those of a tenant in improving her housing by resort to her rights to petition the government and to report violations of laws designed for her protection. On this theory, if it would be unreasonable to prefer the landlord’s interest, it would also be unconstitutional. Mr. Justice Black, who is not prone to weigh interests where First Amendment rights are involved, seems to have taken just this approach in writing for the Court in Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), which, like the instant case, involved state-aided privately-initiated abridgement of First Amendment freedoms. (Footnotes omitted)
But, because the court was able to hold that the Congressional policy in enacting District of Columbia housing regulations for the protection of tenants would be contravened by retaliatory evictions, a decision based solely on constitutional grounds was avoided.
The defense of retaliatory eviction does not appear to be very radical when considered in light of the range of limitations which the law places on property rights. As one commentator points out:
Even though perpetual tenancies would not result, it is plain that prohibiting retaliatory eviction limits the landlord’s freedom to deal with his property as he chooses. The same may be said of zoning regulations, building codes, health and safety laws, the sixty day wait to evict a tenant who is not in default, and many other rules. Completely unfettered property has probably always been a myth. So long as the invasion of the landlord’s property rights is moderate, only carried to the extent reasonably necessary to give effect to the competing legitimate interests of tenants, there should be no doubt of its constitutionality. In this respect, a judge-made prohibition *431against retaliatory eviction is no more an invasion of the landlord’s interests than is a statute. [McElhaney, Retaliatory Evictions: Landlords, Tenants and Law Reform, 29 Maryland L. Rev. 195, 221 (1969).]
Once the viability of defenses under the First Amendment of the U.S. Constitution and under article I, section 3 of the Hawaii Constitution are established, the chief problem- that the tenant must overcome is the requirement that the government be shown responsible in some relevant sense for the inhibition of his rights.4 This requirement is popularly known as “state action.”
The Supreme Court has long held that state court judgments, even in private lawsuits, can constitute the requisite state action. In the leading case of Shelley v. Kraemer, 334 U.S. 1 (1948), judicial enforcement of a private property agreement containing a racially restrictive covenant was found to be state action in violation of the Equal Protection Clause of the Fourteenth Amendment despite the fact that no statute was involved. Likewise in Barrows v. Jackson, 346 U.S. 249 (1953), where no statute was involved, the Court held that a state could not entertain a damage suit for violation of a racially restrictive covenant on the same rationale.
Other cases have dealt with infringement by state judicial processes of First Amendment rights. For purposes of the facts before us in this case, the most relevant decision is New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the Supreme Court held that a newspaper’s First Amendment rights were abridged by a state court’s award of a libel judgment against it. Although the suit was a private one, the Court found that the action *432of an Alabama court in finding the Times liable in damages for libeling a public figure was state action within the meaning of the Fourteenth Amendment:
Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. See, e.g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised . . . .” [376 U.S. at 265.]
Applying the holding of New York Times to the facts in the present case, there can be no doubt that the state’s role in permitting the use of its summary possession process by landlords as a retaliatory tool for the inhibition of tenant reporting and organizing is unconstitutional state action.
I would reverse.
The First Amendment o£ the U.S. Constitution states in pertinent part as follows:
Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Article I, section 3 of the Hawaii Constitution states in pertinent part as follows:
*426No law shall be enacted . . . abridging the freedom of speech ... or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
Many changes in the law by means of legislative enactment which affect pre-existing contractual obligations have been held by the Supreme Court not violative of the constitutional prohibition against the impairment of the obligations of contract. The cases so holding have arisen in the areas of rent control, mortgages, and ‘‘gold clause” provisions. With respect to this first group, an important case was Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921), in which a landlord sought to oust a holdover tenant and the tenant relied as a defense upon a state statute providing for the suspension of summary possession proceedings under emergency circumstances. The Court held that the landlord was not deprived of his rights under the contract clause, and Justice Holmes, writing for the Court, said at 198:
In the present case more emphasis is laid upon the impairment of the obligation of the contract of the lessees to surrender possession and of the new lease which was to have gone into effect upon October 1, last year. But contracts are made subject to this exercise of the power of the State when otherwise justified, as we have held this to be.
Laws affecting pre-existing contracts have likewise been found constitutional in Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), wherein the appellant contested the validity of a Minnesota mortgage moratorium law providing for the postponement of foreclosure sales and the extension of redemption periods in time of emergency, claiming it to be repugnant to the contract clause. In sustaining the statute’s constitutionality, Chief Justice Hughes, writing for the Supreme Court, stated that the clause “is not an absolute one and is not to be read with literal exactness like a mathematical formula.” 290 U.S. at 428. Accord, East New York Savings Bank v. Hahn, 326 U.S. 230 (1945), where, in following Home Building & Loan Ass’n v. Blaisdell, supra, Justice Frankfurter described the governing constitutional principle as follows: “[Wjhen a widely diffused public interest has become enmeshed in a network of multitudinous private arrangements, the authority of the State ‘to safeguard the vital interests of its people,’ 290 U.S. at 434, is not to be gainsaid by abstracting one such arrangement from its public context and treating it as though it were an isolated private contract constitutionally immune from impairment.” 326 U.S. at 232. Finally, Norman v. Baltimore & O. Ry., 294 U.S. 240 (1935), one of the gold clause cases, involved bonds providing for payment in gold coin of the United States of or equal to the standard of weight and fineness existing on the date of issue. The Court held that the gold clauses were incompatible with the public interest and could not be enforced.
The rights asserted by the tenant are included among the group of First Amendment rights made applicable to the states by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.
The same rights protected by article I, section 3 of the Hawaii Constitution are similarly made applicable to state action by article I, section 4, which reads in pertinent part:
No person shall be deprived of life, liberty or property without due process of law ....