A federal judge has ruled that a jury must decide whether Delaware County officials retaliated against a local newspaper for its critical coverage, sending the Cornell Law School First Amendment Clinic’s case on behalf of The Reporter to trial and leaving punitive damages on the table. In her July 21 ruling, Hon. Anne M. Nardacci said the factual record precludes summary judgment.
Heather Murray, associate director of Cornell Law School’s First Amendment Clinic and managing attorney of the Local Journalism Project, said, “We are pleased with the decision and look forward to bringing this case to trial to defend the right of The Reporter—and every news outlet—to report critically on government officials. Importantly, the court also found that The Reporter is eligible to recover punitive damages in the event a jury determines that the evidence presented of county officials’ retaliation violated the First Amendment.”
The Cornell Law School First Amendment Clinic filed suit in December 2023 with co-counsel Michael J. Grygiel of Foley Hoag LLP in the U.S. District Court for the Northern District of New York on behalf of Decker Advertising Inc., publisher of The Reporter, against Delaware County, members of its Board of Supervisors, and County Attorney Amy Merklen. The suit alleges that County officials violated The Reporter’s First Amendment rights when the Board revoked the newspaper’s designation as an official county paper in retaliation for its coverage of county government, stripping the paper of critical advertising revenue from government-funded legal notices.
Under New York County Law section 214, counties designate “official” newspapers to publish legal notices. A 1973 amendment to the statute ensures that politically independent newspapers like The Reporter are eligible for designation. Until its de-designation in March 2022, The Reporter had published the County’s public notices virtually since its founding in 1881.
A year after the de-designation, County officials sent an unprecedented letter to the publisher of The Reporter, signed by 39 County officials, demanding that the publisher “make immediate changes” to its coverage of the County.
The Complaint also alleges that The Reporter’s constitutional rights were violated when the County Attorney issued a “gag directive” prohibiting county employees from freely communicating with the newspaper’s staff.
session privilege shielded testimony about the Board’s de-designation deliberations.
The Reporter is seeking, among other things, a permanent injunction reinstating it as an official county newspaper through the calendar year following the court’s order, requiring the Board to award future designations based solely on articulable, content-neutral criteria, and ordering Defendants to immediately rescind the directive that prohibited County employees from speaking to The Reporter’s staff.
In addition to Murray, Clinic Director Mark Jackson, and Grygiel, Kelly L. McNamee and Christina N. Hernsdorf at Foley Hoag LLP and Cynthia E. Neidl at Greenberg Traurig LLP worked on the summary judgment briefing. Starting in 2023, several generations of Clinic students and summer fellows have worked on the case.
For further background and coverage of the case, see:
Free Speech Test Case Over Newspaper Retaliation Heads Toward Trial Law.com
Catskills newspaper’s case claiming retaliation from county government headed to trial – Times Union
