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Business Journal Sues Youngstown Mayor For Violating Its First Amendment Rights
"YOUNGSTOWN, Ohio, Feb. 24 -- The Business Journal today filed suit in U.S. District Court for the Northern District of Ohio, asserting the newspaper's First Amendment rights are being violated by Mayor George M. McKelvey and the city of Youngstown. The lawsuit challenges the constitutionality of the mayor's ban on city employees talking to The Business Journal about any city business. It seeks a preliminary injunction to prohibit McKelvey from enforcing the policy until the court decides the merits of the case."The mayor's conduct is a flagrant violation of the First Amendment rights of The Business Journal and our reporters and amounts to nothing more than an attempt to silence the newspaper and deny the public information to which it is otherwise entitled," said Andrea Wood, publisher of the newspaper.In a letter dated Feb. 3, McKelvey notified Wood that he has forbidden all city employees to speak with Business Journal reporters about any city business. This policy, states the newspaper's lawsuit, is based on nothing more than the mayor's own personal animus toward The Business Journal because of articles critical of the city regarding the expenditure of federal funds earmarked for the convocation center. The mayor's Feb. 3 letter followed closely on the heels of an order from the magistrate of the Mahoning County Court of Common Pleas requiring the city to pay attorney's fees incurred by The Business Journal in its lawsuit over the city's failure to release public records related to the purchase of land where the convocation center is under construction.The First Amendment claim filed today is based on a Section1983 of the civil rights statute enacted in 1871 that prohibits governmental entities from depriving citizens of their constitutional rights. The lawsuit was filed by attorneys Jill Meyer Vollman, Maureen P. Haney and Richard M. Goehler of the Cincinnati law firm of Frost Brown Todd LLC in association with attorney Richard P. McLaughlin of Youngstown, who successfully prosecuted The Business Journal's public records lawsuit against the city.As set forth in the pleadings, the U.S. Supreme Court has made clear that discrimination against speech -- particularly when that discrimination is based on the viewpoint expressed in the speech -- is patently unconstitutional, said Attorney Vollman. "A governmental official may not, based on well-established case law, retaliate against speech that he or she does not approve of or agree with by denying a benefit to the individual speaker," Vollman continued. "A bounty of case law makes clear that governmental action that might otherwise be permissible in another context is considered unconstitutional if the motive, as here, was to silence a citizen or punish him or her for his speech."The issues at stake in The Business Journal lawsuit are of crucial importance not just to members of the media, but to the public at large, emphasized Attorney Haney. "The recent trend we're seeing among government officials -- at even the highest levels -- to gag entire administrations and punish particular media entities for exercising their First Amendment rights is unfortunate and alarming," Haney said. "Without judicial intervention, I fear we're heading toward a period in history where government control or de facto licensing of the media is the norm. That is why this case is so vitally important."Actions such as McKelvey's have the direct effect of cutting off the source of information for the public, particularly where, as here, other news organizations in the community are not covering the actions of municipal government to the same extent, Haney explained. "Moreover, while Mayor McKelvey has retaliated against the media for its exercise of First Amendment rights, there is at present nothing stopping the mayor from retaliating against a private individual for expressing points of view that he finds objectionable," she said. "In a society that places a high premium on open debate and the free expression of ideas -- even those that are critical of government -- such retaliation should be viewed as alarming and repugnant to the constitution. "In recent months, challenges to governmental conduct that seeks to deny members of the press access to public information have been raised in at least two federal cases, with unfavorable results for the plaintiffs. In both of those cases, however -- one involving the Baltimore Sun newspaper, the other involving Cleveland television station WOIO/WUAB -- the judges hearing these cases determined there was no evidence of harm to the news organization as a result of the public official's gag order. In its pleadings, The Business Journal has alleged it suffers actual and irreparable harm as a result of McKelvey's directive. Further, the evidence in The Business Journal case establishes that McKelvey's directive was motivated by nothing more than his unhappiness with the views expressed by the newspaper -- retaliatory conduct clearly prohibited by case law. Moreover, The Business Journal is not seeking special access to the mayor or city employees. Instead, the newspaper seeks the same access that the mayor makes available to any private citizen or member of the press. "We have a case here where one media entity has been frozen out," attorney Haney said. "What about the case where all government employees are prohibited from speaking to any media? The same rationale guides a public official's decision in either case, and if the courts are saying it's OK to cut off access to one media entity, they surely must mean it's OK to cut off access to all media. So despite the First Amendment and the principles of open government and public accountability that are at the heart of our system of government, we now have a situation where public officials can arbitrarily elect not to provide information to the citizenry, the very people who voted them into office."Attorneys Haney, Vollman and Goehler specialize in communications law. Their firm, Frost Brown Todd, has been involved in a number of high-profile media cases in which they defended members of the media against defamation actions and invasion of privacy claims, and they have litigated several public records disputes. They currently represent CNN and a consortium of media companies in their lawsuit against Ohio Secretary of State Kenneth Blackwell for attempting to block exit polling within 100 feet of polling places. Attorney McLaughlin specializes in business law. He has represented the Youngstown Publishing Co., which does business as The Business Journal, for 18 years. The Business Journal began publication in August 1984. It is published twice monthly and reaches a readership of 45,000 business owners, managers and professionals in a five-county region: Mahoning, Trumbull and Columbiana counties in Ohio; and Mercer and Lawrence counties in Pennsylvania."