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Full Text of Business Journal's First Amendment Complaint
"IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF OHIOEASTERN DIVISION YOUNGSTOWN PUBLISHING COMPANYd/b/a THE BUSINESS JOURNAL25 E. Boardman St.P.O. Box 714 Youngstown, Ohio 44503 And ANDREA WOOD 25 E. Boardman St. P.O. BOX 714 Youngstown, Ohio 445 And W. DANIEL O'BRIEN 25 E. Boardman St. P.O. BOX 714 Youngstown, Ohio 44503 And GEORGE NELSON 25 E. Boardman St. P.O. Box 714 Youngstown, Ohio 44503 And DENNIS LA RUE 25 E. Boardman St. P.O. Box 714 Youngstown, OH 44503, Plaintiffs, vs. GEORGE M. MCKELVEY, in his Official Capacity as Mayor of the City of Youngstown 26 S Phelps St. Youngstown, OH 44503 And THE CITY OF YOUNGSTOWN 26 S. Phelps St. Youngstown, OH 44503, DefendantsCOMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEFFor their Complaint against Defendants George M. McKelvey, in his official capacity as Mayor of the City of Youngstown, and the City of Youngstown (hereinafter, "Defendants" or "Mayor"), Youngstown Publishing Company d/b/a The Business Journal, Andrea Wood, W. Daniel O'Brien, George Nelson and Dennis LaRue (hereinafter, "Plaintiffs" or "The Business Journal") state as follows:1. Plaintiffs seek injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 to halt the enforcement of an unconstitutional policy that prohibits all employees in Youngstown city government from speaking with or providing comments to The Business Journal, a twice-monthly newspaper published in Youngstown, Ohio. The Mayor imposed the policy to retaliate against The Business Journal for publishing articles which were critical of the actions of Mayor McKelvey and/or his administration.2. The policy chills the speech of any citizen who disagrees with the Mayor or his administration's actions, denies the public access to information to which it is entitled, and opens the door for any public official to punish or retaliate against any individual who says something the government does not like.JURISDICTION AND VENUE3. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1343(a)(3) providing for original jurisdiction in suits authorized by 42 U.S.C. § 1983. Furthermore, jurisdiction is available under 28 U.S.C. § 1331 because this action arises under the First and Fourteenth Amendments to the Constitution of the United States.4. Venue in this District is proper under 28 U.S.C. § 1391(b). The claims arose and the Defendants reside in this District.PARTIES5. Youngstown Publishing Company, an Ohio corporation with its principal place of business in the State of Ohio, publishes The Business Journal, a twice-monthly newspaper of general circulation in three Ohio counties as well as two counties in the neighboring Commonwealth of Pennsylvania. The Business Journal enjoys a readership of approximately 45,000 business owners, executives, professionals, and government and civic leaders in the five-county region, and is regarded as a valuable source for regional news. 6. Andrea Wood, a resident of Mahoning County, is the publisher of The Business Journal and as such Ms. Wood is involved in all aspects of The Business Journal's news coverage of City government.7. W. Daniel O'Brien, a resident of Youngstown, is a general news reporter for The Business Journal. Mr. O'Brien regularly writes news stories on issues involving City government.8. George Nelson, a resident of Trumbull County, is a general news reporter for The Business Journal who regularly reports on the actions of City government. 9. Dennis LaRue, a resident of Mahoning County, is a general news reporter for The Business Journal who also reports on the actions of City government. 10. George M. McKelvey is the Mayor of Youngstown and an individual residing in Youngstown. The Mayor is empowered to carry out the duties of his office and is obligated to respect the constitutional rights of the citizens of Youngstown, including The Business Journal and its individual reporters. The Mayor is sued in his official capacity. 11. Upon information and belief, the City of Youngstown is a municipal corporation in northeast Ohio. 12. At all times relevant to this Complaint, the acts and practices of the Mayor were performed in his position as officer and official of the City of Youngstown. Therefore, these acts and practices were performed under color of state law and constitute state action within the meaning of the Fourteenth Amendment.GENERAL ALLEGATION13. The Business Journal regularly publishes articles covering City government and the policies of and/or actions taken by Mayor McKelvey and his administration. 14. Since 1999, The Business Journal has published a number of articles relating to the City of Youngstown's intent to construct/construction of a public convocation center with a U.S. Department of Housing and Urban Development ("HUD") grant of approximately $26.8 million. Since the City received the HUD grant, there has been continuing debate about the City's actions in developing the project and the use of the federal funds involved. This issue is a matter of great public concern for the residents of Youngstown, and is a matter of general interest in the surrounding areas.15. In February of 2003, The Business Journal published the first in a series of articles questioning the City's purchase of a 26-acre parcel of land along the Mahoning River upon which it planned to construct the convocation center. In those articles, The Business Journal questioned the City's decision to pay $1.5 million for the land without any formal appraisal, and noted that the land in question was the same parcel that George M. Alexander, a friend of former U.S. Representative James Traficant and a disbarred attorney who is serving a federal prison term for racketeering, tried to sell the City six different times in 1997 for $1 million. Further, because the land selected by the City had formerly been the site of several steel mills, the articles noted the significant environmental concerns (including knowledge that an 84" sewer pipe bisected the property) that existed in regard to the purchase of the land.16. In the wake of The Business Journal's publication of several articles critical of the City of Youngstown's actions vis-à-vis the convocation center project, in mid-February 2003 Mayor McKelvey issued an oral directive to various City officials instructing them not to speak with reporters from The Business Journal. Employees of The Business Journal became aware of this directive in March or April of 2003 after repeatedly being denied information from City officials about the convocation center project.17. As a result of the Mayor's directive forbidding city employees from communicating with employees of The Business Journal, the newspaper issued a series of public records requests to obtain information on the convocation center project. After the City failed to produce all relevant public records, The Business Journal was ultimately forced to initiate mandamus proceedings to compel the City to release the public records then at issue. 18. The mandamus proceedings initiated by the newspaper resulted in a an order from Magistrate Fehr of the Mahoning County Court of Common Pleas on December 22, 2004 ordering the City of Youngstown to pay the newspaper's attorney's fees. On February 11, 2005, the City filed objections to the order requiring payment of The Business Journal's attorney's fees.19. Shortly after the Court of Common Pleas issued its order requiring the City to pay The Business Journal's attorney's fees, newspaper employees, including reporters W. Daniel O'Brien, George Nelson, Andrea Wood and Dennis LaRue, began once again to experience refusals on the part of City officials to provide any information to The Business Journal. On or about February 3, 2005, The Business Journal was formally notified by Mayor McKelvey of a new City policy directly forbidding City employees from communicating with Business Journal reporters or representatives about any City business -- not just information related to the convocation center project. 20. The policy was articulated by Mayor McKelvey in a February 4, 2005 written letter to Andrea Wood, the publisher of The Business Journal. That letter explained, in pertinent part:As Mayor of Youngstown, I do not dispute that I have instructed members of my administration not to make statements to The Business Journal . . . . *** Furthermore, as a high-level executive with a broad range of discretionary authority I have made the determination that City administrators and employees may not comment to The Business Journal on behalf of the City. *** [Government officials] cannot be forced to speak with members of the media they believe are untrustworthy. *** [G]overnment officials do have a First Amendment right not to speak with members of the media they deem particularly untrustworthy or irresponsible. A true and accurate copy of the letter to Andrea Wood from Mayor McKelvey is attached hereto as Exhibit A (emphasis in original). 21. The policy as articulated and applied prohibits any individuals employed by City government who are willing to speak to employees of The Business Journal -- on any topic related to City business -- from exercising their right to do so. The Mayor defended his decision to impose the ban on all City employees by saying that he was, "merely exercising my right not to answer questions or meet with members of the media." See Exhibit A.22. Since the written directive was issued, City employees who previously spoke to Mr. O'Brien, Mr. Nelson, Mr. LaRue and other Business Journal employees have refused to speak to them, return their phone calls, or hold meetings with them. Some have specifically cited the directive from Mayor McKelvey as the basis for this decision. As a result, The Business Journal has been denied information relating to any and all City business, and members of the public are in turn being denied information which is uniquely in the public interest and which they are entitled to know.COUNT I: FIRST AMENDMENT VIOLATION23. This is an action pursuant to 42 U.S.C. § 1983. 24. Plaintiffs reallege and incorporate by reference the preceding paragraphs.25. Defendants, acting under the color of state law, have violated Plaintiffs' First Amendment rights.26. Defendants have deprived Plaintiffs of access to information which they previously had, and which the general public has a right to know.27. The policy was implemented for the express purpose of punishing and retaliating against Plaintiffs for the exercise of their First Amendment rights.28. The policy was intended to have and has had an impermissible chilling effect on Plaintiffs' right to free expression.29. The policy does not further any compelling interest of the government. The policy is not narrowly tailored to achieve any significant or compelling governmental interest.30. As a result of Defendants' implementation of the policy, Plaintiffs have been chilled in the exercise of their fundamental rights under the First Amendment. Plaintiffs therefore have suffered and will continue to suffer irreparable harm for which there is no adequate remedy at law.WHEREFORE, Plaintiffs respectfully request that this Court enter a permanent injunction enjoining the Mayor from violating the Plaintiffs' First Amendment rights and specifically enjoining enforcement of the policy; award attorney's fees and costs against the Mayor and the City of Youngstown pursuant to 42 U.S.C. § 1988; and grant such other and further relief that the Court deems necessary and appropriate. "