DECKER ADVERTISING INC., v. DELAWARE COUNTY, NEW YORK; and TINA MOLÉ; ARTHUR MERRILL; MARK TUTHILL; THOMAS AXTELL; JEFFREY TAGGART; WAYNE E. MARSHFIELD; JERRY VERNOLD; JAMES E. EISEL; GEORGE HAYNES, JR.; BETTY L. SCOTT; JAMES G. ELLIS; CARL PATRICK DAVIS; ALLEN R. HINKLEY; ERIC T. WILSON; JOHN S. KOSIER; WILLIAM LAYTON; JOSEPH CETTA; and AMY MERKLEN, in their individual and official capacities
Case 3:23-cv-01531-AMN-ML
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
02/24/25
Hon. Anne M. Nardacci, United States District Judge
APPEARANCES:
CORNELL LAW SCHOOL FIRST AMENDMENT CLINIC
Myron Taylor Hall
Ithaca, NY 14853
Attorneys for Plaintiff
GREENBERG TRAURIG, LLP
54 State Street, 6th Floor
Albany, NY 12207
Attorneys for Plaintiff
HANCOCK ESTABROOK, LLP
1800 AXA Tower I
100 Madison Street
Syracuse, NY 13202
Attorneys for Defendants
OF COUNSEL:
MARK H. JACKSON, ESQ.
FRANK W. MILLER, ESQ.
GIANCARLO FACCIPONTE, ESQ.
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On December 4, 2023, Plaintiff Decker Advertising Inc. (“Decker” or “Plaintiff“) commenced this action pursuant to
II. BACKGROUND
The following facts are drawn from the Complaint and the exhibits attached to the Complaint unless otherwise noted and are assumed to be true for purposes of ruling on the Motion. See Div. 1181 Amalg. Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep‘t of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam); see also L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (in reviewing defendant‘s “motion for judgment on the pleadings, [the court] draw[s] all facts—which [the court] assume[s] to be true . . . from the Complaint and the exhibits attached thereto[.]“).
A. The De-Designation
Plaintiff publishes The Reporter, a Catskills-based newspaper distributed in the County and online. Dkt. No. 1 at ¶ 10.
In February 2022, after The Reporter‘s designation under
On March 9, 2022, The Reporter published a news article titled Delhi Justice Removed From Criminal Cases, which reported that a local justice was removed from his criminal court duties after an attorney filed a complaint against him. Id. at ¶¶ 34-35. A few days later, on March 15, 2022, the County sent a letter to The Reporter in which the County claimed that the article misreported the governing body which had removed the justice from his criminal court duties, requested a correction of that mistake, and generally alleged that The Reporter‘s Editor “ha[d] a history of writing stories about Delaware County which are selectively researched, one-sided and ignore or minimize any facts incompatible with her intended narrative.” Id. at ¶¶ 35-36. The letter also stated that the Editor “often uses sensationalism and exaggeration to play on the emotions, prejudices, and fears of her readers, undermining their confidence in our County government by disparaging its actions and casting its leaders in a materially false light.” Id. On the same day it received the letter, The Reporter ran a correction of the article. Id. at ¶ 37.
A week later, on March 23, 2022, the County revoked The Reporter‘s designation as an official county newspaper for the publication of local laws and notices under
In The Reporter‘s place, the County designated The Hancock Herald under
B. The Letter
On March 8, 2023, the County sent another letter to the publishers of The Reporter demanding that the newspaper “make immediate changes” to its coverage of the County. Id. at ¶ 57; see also Dkt.
C. The New York Times Story and the Directive
Three months later, on June 18, 2023, The New York Times covered the County‘s de-designation of The Reporter. Id. at ¶ 74; see also Dkt. No. 1 (Exhibit O). The article included a quote from Mr. Wayne Marshfield, a signatory of the Letter, in which he asserted that he only signed the Letter “to support his colleagues[,]” and that the County “claim[ed] that The Reporter would publish biased articles.” Id. at ¶ 75.
Five days after The New York Times published the story, Plaintiff alleges that the County Attorney‘s Office issued a directive to County employees requiring that all requests for comment from The Reporter be referred to the County Attorney‘s Office. Id. at ¶ 76 (the “directive“). Soon after the story was published, on June 22, 2023, The Reporter‘s Editor contacted County Public Defender Joseph Ermeti in relation to a separate story to confirm “who authorizes, creates and does the posting on the Delaware County Public Defender Facebook account[.]” Id. at ¶ 77. In line with the alleged directive, Mr. Ermeti responded to The Reporter‘s inquiry regarding the Facebook page by asserting that he had “been directed to refer all inquiries in this matter and any other matter that pertains to the Public Defender‘s office to the County Attorney‘s office.” Id. at ¶ 78. After The Reporter‘s Editor followed up with the County Attorney Defendant Amy Merklen, Ms. Merklen clarified that, “[s]ince the Reporter is represented by counsel and is contemplating litigation against the County, any and all communication should go through your attorney.” Id. at ¶ 79. Despite lacking direct allegations as to The Reporter‘s role in the publishing of The New York Times story, reading the allegations in the light most favorable to Plaintiff, and considering the contents of the attached story, the Court construes the Complaint to allege that the directive was imposed in retaliation for The Reporter‘s apparent cooperation with The New York Times and the resulting coverage. See Dkt. No. 56 at 18 (“The Complaint demonstrates that The Reporter‘s
The Reporter followed up with Ms. Merklen on June 28, 2023 and July 5, 2023 and asked that the alleged “overbroad directive” be rescinded. Id. at ¶¶ 80, 81. Plaintiff asserts that “[i]t remains unclear how many employees were directed not to speak to The Reporter‘s journalists and whether this directive continues to be enforced.” Plaintiff also claims that the County has not responded to its most recent demand to rescind the directive. Id. at ¶ 83. However, Plaintiff acknowledges that Mr. Ermeti did respond to a later request for comment on a separate issue, though only after he ran the request by Ms. Molé. Id. at ¶ 82.
D. Later Events
After the de-designation of The Reporter and the alleged directive, the Delaware County Democratic Committee proposed a resolution to re-designate The Reporter as an official County paper for the purpose of publishing local laws and notices. Dkt. No. 1 (Exhibit Q); see also Dkt. No. 1 at ¶ 84.2 In response, Ms. Merklen told the Democratic Committee chair that the proposed resolution did not comply with § 214 because the party could not designate more than one newspaper in a calendar year. Id. at ¶ 87. Plaintiff and the County Democratic Committee disagree with the notion that § 214 limited their ability to designate more than one newspaper in 2023, and on October 11, 2023, the Democratic Committee again recommended that The Reporter be designated as the party‘s newspaper of record for the following year, 2024. See Dkt. No. 1 (Exhibit S). At the time the Complaint was filed, the Board had not responded to the recommendation. Id. at ¶ 96.
Separately, on August 22, 2023, The Reporter sent a demand letter to the County requesting immediate reinstatement and compensation for the lost revenue resulting from its allegedly unlawful de-designation. Id. at ¶ 97. Two months later, counsel for the County sent a letter rejecting those demands. Id. at ¶ 98.
This lawsuit followed. In it, Plaintiff claims that the County, Ms. Molé, Ms. Merklen, and the Board Members violated Plaintiff‘s First and Fourteenth Amendment rights. See id. The Complaint includes two counts: the first explicitly references retaliation and focuses on the de-designation, and the second focuses on the alleged directive. Id. at 20-21. On May 2,
III. STANDARD OF REVIEW
“The standard for granting a
To survive a motion to dismiss, a party need only plead “a short and plain statement of the claim,”
IV. DISCUSSION
A. First Amendment Retaliation Claims
Plaintiff seemingly asserts claims of First Amendment retaliation based on 1) the de-designation of The Reporter, and 2) the alleged directive to run The Reporter‘s requests for comment by certain County officials. “First Amendment retaliation claims typically arise in three distinct contexts: prisoners, public employees, and criticism of public officials by private citizens.” Doe v. City of New York, 18-cv-670 (ARR) (JO), 2018 WL 3824133, at *11 (E.D.N.Y. Aug. 9, 2018). The Second Circuit has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context.” Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008). Here, when the County de-designated The Reporter, the parties agree that
1. De-Designation
First, Plaintiff asserts that the County de-designated The Reporter in March 2022 in retaliation for The Reporter‘s unfavorable coverage.3 To assert a claim of First Amendment retaliation in the public employment or contractor context, Plaintiff must allege the following: “(1) he engaged in speech or activity that was protected by the First Amendment; (2) he suffered an adverse employment action; and (3) a causal connection existed between the adverse action and the protected activity.” Specht v. City of New York, 15 F.4th 594, 600 (2d Cir. 2021); see also Brooke v. County of Rockland, 21-598-cv, 2022 WL 6585350, at *2 (2d Cir. Oct. 11, 2022) (asserting that the same standard applies to independent companies which contract with the government). The Court finds that the Complaint properly alleges a retaliation claim based on the de-designation.
i. Protected Speech
First, Plaintiff must allege that the de-designation occurred in response to protected speech. See Specht, 15 F.4th at 600. “The speech of a public employee is protected by the First Amendment when the employee speaks as a citizen4 on a
The Court has no difficulty in determining that The Reporter‘s article covering the removal of a judge from his criminal court duties—the article which allegedly, in part, prompted the initial de-designation—involves a matter of public concern and constitutes protected speech. See Specht, 15 F.4th at 601 (“possible governmental misconduct is a legitimate and an important topic of public concern“); see also Reuland v. Hynes, 460 F.3d 409, 418 (2d Cir. 2006) (“[c]ertainly crime is a matter of political, social, or other concern to the community“). Defendants make two arguments attempting to avoid this conclusion, both of which are unavailing.
First, Defendants contend that the article‘s inclusion of an error, which The Reporter later corrected, rids it of First Amendment protections. Dkt. No. 42-2 at 15 (citing Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 301 (1971)). The Court disagrees. In New York Times v. Sullivan, the Supreme Court “refused to recognize an exception for any test of truth” because “erroneous statement is inevitable in free debate[,]” which “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive[.]‘” 376 U.S. 254, 271-72 (1964) (internal citations omitted). More recently, the Supreme Court explicitly rejected the notion that “false statements, as a general rule, are beyond constitutional protection.” U.S. v. Alvarez, 567 U.S. 709, 718 (2012). Indeed, “the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment.” Id. at 719. Moreover, Defendants misconstrue their proffered case, Ocala Star-Banner Co. v. Damron, which in fact reversed a prior judgment on the basis that the judgment assumed a published falsehood was afforded no First Amendment protection without regard to principles established in Sullivan. Ocala Star-Banner Co., 401 U.S. at 300. Defendants’ sole cited language from Ocala Star-Banner Co. is dicta from the non-binding concurrence of Justice White, which itself recognized that publishers who
Second, Defendants argue that the de-designation is a personal business concern and not a matter of public concern. Dkt. No. 42 at 15. But Defendants confuse the issues. It is true that speech motivated by private business concerns and relating to non-public matters is not protected speech for purposes of a public employee or contractor‘s First Amendment retaliation claim. See Lewis v. Cowen, 165 F.3d 154, 163–64 (2d Cir. 1999) (“speech on a purely private matter, such as an employee‘s dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern.“). However, whether the Government‘s alleged act of retaliation itself strikes at the personal business concerns of Plaintiff has nothing to do with whether Plaintiff‘s speech which prompted the retaliation is protected. What matters is not whether the de-designation was motivated by, or implicated, personal business concerns, but whether The Reporter‘s preceding coverage addressed public concerns. Burkybile v. Bd. of Educ. of Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306, 313 (2d Cir. 2005) (“Public accusations of improper governmental actions are clearly matters of public concern, regardless of whether the accuser is motivated by personal reasons.“). As discussed above, because the coverage related to government misconduct, it did. See Specht, 15 F.4th at 601.
ii. Adverse Action
Next, Plaintiff must allege that the de-designation constitutes an adverse action. Instead of addressing the nature of the deprivation and whether it is sufficiently detrimental to constitute an adverse action, the parties discuss whether the County was entitled to de-designate The Reporter under the provisions of § 214. The Court will address those issues in its discussion of whether retaliation was a substantial or motivating factor for the de-designation,
The Court easily finds that the de-designation of The Reporter constitutes an adverse action capable of sustaining a claim for retaliation in the public employment context. “[W]hether an undesirable employment action qualifies as being ‘adverse’ is a heavily fact-specific, contextual determination.” Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 226 (2d Cir. 2006). “[R]etaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action” in the context of a First Amendment retaliation claim. Id. at 225. “Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.” Id. (quoting Morris v. Landau, 196 F.3d 102, 110 (2d Cir. 1999), abrogated on other grounds by Lore v. City of Syracuse, 670 F.3d 127, 163 (2d Cir. 2012)). However, “a combination of seemingly minor incidents” also qualifies. Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002).
Here, The Reporter was effectively discharged from its role as an official County newspaper. Courts generally treat the termination of a contractor‘s agreement with the Government as sufficient to constitute an adverse employment action. See Umbehr, 518 U.S. at 685 (establishing that the “termination of [a contractor‘s] contract” would be a sufficient basis to assert a First Amendment retaliation claim); Golodner, 770 F.3d at 207 (noting that the government may not “terminate their relationships with independent contractors because of the contractors’ speech.“). That the allegations here concern a de-designation pursuant to § 214 rather than a strict termination of a contract does not change the result. Whether through de-designation or termination, Plaintiff alleges that the County effectively ended its official relationship with The Reporter. It is plausible that the threat of de-designation would likely deter other newspapers in a similar position from publishing similar coverage. Zelnik, 464 F.3d at 225; see also Davis v. Good, 320 F.3d 346, 354 (2d Cir. 2006) (finding, at the motion to dismiss stage, that plaintiff “should have the opportunity to develop facts that would demonstrate that [the actions] would deter a [similarly situated individual]“) (internal quotation marks omitted). Therefore, the Court finds that the Complaint sufficiently alleges that the de-designation is an adverse employment action.
iii. Causal Connection
Finally, Plaintiff must allege a causal connection between the decision to de-designate The Reporter and its protected reporting. Defendants first contend that there is no such connection because the de-designation of The Reporter resulted from its ineligibility under § 214. Dkt. No. 42-2 at 20-21. In short, Defendants argue that under § 214, a newspaper designated to publish local laws and notices may be deemed ineligible for designation as a matter of law if it “fails to support the nominees or office holders” of one of two major political parties in the County. Id. Here, Defendants argue that because The Reporter “reported misinformation,” and because the County “took issue with” its Editor‘s reporting about County officials, the County was entitled to de-designate it as the official newspaper. Id. Second, Defendants contend that there is insufficient temporal proximity between the protected speech and the adverse action to establish causation. Id. at 24. Finally, Defendants assert a Mount Healthy defense and point to costs and changes in the way the County was required to post notices with
“The causal connection must be sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action, that is to say, the adverse employment action would not have been taken absent the employee‘s protected speech.” Stajic v. City of New York, 214 F. Supp. 3d 230, 235 (S.D.N.Y. 2016) (quoting Morris, 196 F.3d at 110). “Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.” Mandell v. County of Suffolk, 316 F.3d 368, 383 (2d Cir. 2003). In cases relying on the circumstantial evidence of temporal proximity, the Second Circuit has “not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action.” Anderson v. State of New York, Office of Court Admin., 614 F. Supp. 2d 404, 430 n.219 (S.D.N.Y. 2009). Direct evidence of retaliatory animus may take the form of “conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged retaliatory attitude.” Stajic, 214 F. Supp. 3d at 235 (quotation marks and citation omitted).
First, the Court finds Defendants’ argument that the de-designation was motivated by The Reporter‘s ineligibility under § 214, and not retaliation, to be unpersuasive. Again, Defendants argue that § 214 mandated The Reporter‘s de-designation because the newspaper published unfavorable stories and “misinformation” about County officials. Dkt. 42-2 at 21. Defendants contend that such coverage violated the law‘s requirement that the official newspaper for publishing local laws and notices “support the nominees or office holders of th[e] party” in power. Id. at 20. However, Defendants’ interpretation of the eligibility requirements under § 214 is simply inaccurate in relation to the contemporary version of § 214. As discussed above, under
Second, Defendants’ argument regarding temporal proximity both ignores the specific factual allegations directly suggesting retaliatory motive, which are supported by the Letter and the County‘s other communications with The Reporter and its owners attached to the Complaint, and misapplies the temporal proximity doctrine. Temporal proximity is not required because the Complaint adequately alleges direct evidence of a retaliatory motive. Defendants admit in writing that “the manner in which [The Reporter] . . . reports county business was one of the reasons the Board of Supervisors opted to change the official county paper to the Hancock Herald in 2022.” Dkt. No. 1-7. Moreover, just a day after the de-designation, the chair of the Board explicitly stated that The Reporter‘s Editor was a reason for the de-designation. Dkt. No. 1-5. Therefore, Plaintiff does not rely on allegations of circumstantial facts alone; the County‘s own statements, at the very least, “may be viewed as directly reflecting the alleged retaliatory attitude.” Stajic, 214 F. Supp. 3d at 235 (quotation marks and citation omitted). Even if Plaintiff did rely on temporal proximity alone, the proximity of the alleged protected speech—the March 2022 article regarding the removal of a judge—and the de-designation within the same month in fact supports a finding of causation at this stage. See Nagle v. Marron, 663 F.3d 100, 111 (2d Cir. 2011) (“six weeks fits comfortably within any line [the Second Circuit] might draw.“). Confusingly, rather than focus on the proximity between the alleged protected speech and the adverse action, Defendants instead focus on the length of time between the de-designation and the March 2023 Letter in which the County admits that The Reporter‘s coverage contributed to its de-designation. Dkt. No. 42-2 at 24. What matters for the use of temporal proximity to establish causation is the length of time between the protected speech and the alleged adverse action. See, e.g., Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (“A plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action[.]“). Here, the only reasonable reading of the Complaint establishes that the alleged adverse action is the de-designation, not the March 2023 Letter explaining the de-designation. The year-long period between the March 2022 de-designation and the March 2023 Letter, if relevant at all, merely relates to the weight afforded to the Letter‘s evidentiary value, not whether the Complaint sufficiently alleges causation.
Third, as to Defendants’ Mount Healthy defense, it is simply too soon for this Court to determine whether The Reporter faced de-designation regardless of its coverage of the County due to rising costs and changes in the method of posting notices. See Mount Healthy, 429 U.S. 274. “A Mount Healthy defense—that a defendant would have taken the same adverse action in the absence of the protected speech—is highly fact-intensive.” Severin v. New York City Dep‘t Educ., 1:19-cv-00775-MKV-RWL, 2021 WL 1226995, at *8 (S.D.N.Y. Mar. 31, 2021) (citing Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir. 1984) and Sheppard v. Beerman, 18 F.3d 147, 151 (2d Cir. 1994)). As such, courts in this Circuit have found that dismissal of a First Amendment retaliation claim based on a Mount Healthy defense is generally not appropriate at the pleading stage. Id.
(listing cases). In fact, Defendants cite no cases dismissing claims (or granting a motion for judgment on the pleadings based on the same standard) due to a Mount Healthy defense. Regardless, even at the summary judgment stage, that Defendants can point to other reasons for the de-designation decision does not automatically shield them from liability. “[A] plaintiff can prove First Amendment retaliation even if the measures taken by the state were otherwise justified.” Beechwood Restorative Care Center v. Leeds, 436 F.3d 147, 152 (2d Cir. 2006) (listing cases). Plaintiff “need only establish that the protected activity was a substantial or motivating factor for the adverse employment action[,]” not that it was the only factor. Dillon v. Suffolk Cnty. Dep‘t of Health Servs., 917 F. Supp. 2d 196, 215 (E.D.N.Y. 2013).
Therefore, the Court will not grant judgment on the pleadings based on Defendants’ arguments with respect to causal connection and the Mount Healthy defense.
2. Directive on Communications
Beyond the de-designation, the Complaint may also be read to assert a First Amendment retaliation claim based on the County‘s implementation of a “gag directive” against The Reporter.7 Again, after the de-designation and at the time of the alleged directive, The Reporter was no longer an independent contractor because it no longer published the County‘s notices. Instead, to allege
a First Amendment retaliation claim as a private actor criticizing a public official‘s conduct, Plaintiff must assert “(1) [it] has a right protected by the
i. Protected Speech
First, the Court must assess whether the speech which allegedly led to the County‘s directive was protected speech. Drawing all reasonable inferences from the Complaint, the County imposed the alleged “gag directive” as retaliation for The Reporter‘s co-owners speaking to The New York Times about the de-designation. Dkt. No. 1 at ¶¶ 74-76.8 Thus, the Court must determine whether The Reporter and Plaintiff‘s speech about the de-designation was protected under the First Amendment.
Despite the newspaper‘s clear private interest in reinstating the County designation, the Court finds that the matter is an issue of public concern worthy of First Amendment protection. “[S]peech on matters of public concern is at the heart of First Amendment protection[,]” regardless of whether that protection is applied to a public employee or private citizen. Rupp v. Buffalo, 91 F.4th 623, 635 (2d Cir. 2024) (internal quotation marks omitted) (alteration in original). However, “private citizens enjoy a more absolute freedom of speech than that of public employees[.]” Doe v. City of New York, 18-cv-670 (ARR) (JO), 2020 WL 108265, at *12 (E.D.N.Y. Jan. 9, 2020). Thus, that The Reporter was no longer a public contractor for the purpose of publishing notices at the time of the alleged directive weighs in favor of First Amendment protection. Moreover, the nature of the disputed designation necessarily involves the public‘s access to information, a public concern of the highest order. See, e.g., Patrick v. Apple, 9:20-CV-0047 (LEK/DJS), 2020 WL 4816015, at *7 (N.D.N.Y. Aug. 19, 2020) (finding that the public has an important interest in “access to information about official misconduct“). Finally, the communications with the New York Times are not the expression of mere dissatisfaction with a soured relationship with the County, but instead, were clearly designed to bring awareness to alleged government misconduct. See Burkybile, 411 F.3d at 313 (“[p]ublic accusations of improper governmental actions are clearly matters of public concern, regardless of whether the accuser is motivated by personal reasons.“); see also See McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 346 (1995) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.“). Therefore, the Court finds that the Complaint plausibly alleges that The Reporter was engaged in protected speech in relation to The New York Times story which allegedly prompted the “gag directive.”
ii. Improper Motivation
Next, Plaintiff must allege that the County implemented the alleged directive
Defendants contend that the directive was implemented to protect against litigation risk, not in retaliation for the national coverage of the de-designation. Dkt. No. 42-2 at 19. Indeed, “if taken for both proper and improper reasons, [Defendants’ conduct] may be upheld if the [conduct] would have been taken based on the proper reasons alone.” Graham v. Henderson, 89 F.3d 75, 79 (2d. Cir 1996) (citing Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir. 1984)). However, based on the Complaint and its supporting documents, the Court is unable to determine whether and to what extent litigation risk existed both prior to and after the publication of the New York Times story. At this preliminary stage and reading the allegations in the light most favorable to Plaintiff, the Court is satisfied that the Complaint plausibly alleges improper motive for the directive.
iii. Harm and Chilling Effect
Finally, Plaintiff must allege “some injury” relating to the directive. Dorsett, 732 F.3d at 160. The Second Circuit has noted that, in claims alleging retaliation by a private citizen, “[it] ha[s] sometimes given the impression that silencing of the plaintiff‘s speech is the only injury sufficient to give a First Amendment plaintiff standing.” Id. “Chilled speech is not the sine qua non of a First Amendment claim. A plaintiff has standing if he can show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm.” Id. (emphasis omitted) (citing cases). Thus, in relation to the County‘s directive, Plaintiff need not show that its speech was chilled, only that the directive constituted a sufficient harm.9
The Court finds that Plaintiff has plausibly alleged a concrete harm resulting from the County‘s directive. Defendants correctly point out that there are no allegations that the County‘s directive permanently barred the Reporter‘s communications with County employees, only that County employees were required to run
B. Prior Restraint Claim
Aside from alleging retaliation, Plaintiff also challenges the constitutional viability of the County‘s directive as a prior restraint on County employees which limited The Reporter‘s right to receive information. “It is well established that ‘[i]ndividuals do not relinquish their First Amendment rights by accepting employment with the government.‘” Latino Officers Ass‘n., New York, Inc., v. City of New York, 196 F.3d 458, 462-63 (2d Cir. 1999) (quoting Harman v. City of New York, 140 F.3d 111, 117 (2d Cir. 1998)). However, given the government‘s particular interest in regulating the speech of its employees, the government “may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.” See United States v. National Treasury Employees Union, 513 U.S. 454, 465 (1995) (”NTEU“). Despite the government‘s relatively greater latitude in restricting the speech of its employees, the government is subject to a higher standard in justifying its restrictions where the restriction is a prior restraint. See NTEU, 513 U.S. at 459.
A prior restraint is an action “forbidding certain communications when issued in advance of the time that such communications are to occur.” Perry v. McDonald, 280 F.3d 159, 171 (2d Cir. 2001) (citation omitted). Where prior restraints are imposed on the speech of public employees, “[t]he government has a
Though in most cases, challenges to prior restraints are brought by the public employees whose speech is directly restrained, “potential receivers of otherwise restrained speech” have standing to challenge restraints on speech so long as there are “willing speakers.” See Application of Dow Jones & Co., Inc., 842 F.2d 603, 607-08 (2d Cir. 1988); see also Pen American Center, Inc. v. Trump, 448 F. Supp. 3d 309, 323 (S.D.N.Y. 2020) (“An organization‘s right to receive information is impaired when it is unable to hear from a speaker who is willing to speak, but who has been obstructed by government action.“). Plaintiff must plead the existence of a willing speaker; the Court may not “infer the existence of a willing speaker from the mere existence of the communications protocol[.]” Price v. Saugerties Central Sch. Dist., 305 Fed. Appx. 715, 716 (2d Cir. 2009). Such recipient claims are “entirely derivative” of the rights of the public employee subject to the challenged regulation. Spargo v. N.Y State Comm‘n on Judicial Conduct, 351 F.3d 65, 83-84 (2d Cir. 2003). The Court finds that the Complaint plausibly alleges that the directive constitutes an impermissible and unconstitutional prior restraint on the speech of the County‘s employees and that Plaintiff has standing to sue over that restraint based on its right to receive information.
First, the Court notes that the directive is undoubtedly a prior restraint which restricts speech before it occurs. See Harman, 140 F.3d at 115 (finding a policy which “forbid[s] employees from speaking with the media regarding any policies or activities of the agency without first obtaining permission from the agency‘s media relations department” to be a prior restraint).10 Thus, to properly assert a
At this stage, Plaintiff‘s allegations are sufficient to establish the existence of a willing speaker. The Complaint details The Reporter‘s communications with Mr. Ermeti, public defender
for the County, in relation to a story about the County‘s Public Defender Facebook page and alleges that Mr. Ermeti, at first, refused to respond to The Reporter without referring the communication to the County Attorney‘s Office. Dkt. No. 1 at ¶ 77. Defendants argue these allegations are insufficient because the directive Mr. Ermeti was following was put in place to protect the County from litigation, not to restrict information. Dkt. No. 42-2 at 27. But the purpose of the directive is relevant to whether the directive survives scrutiny under NTEU, not the existence of a willing speaker. Defendants also point out that Mr. Ermeti did eventually respond to a separate inquiry. Id. at 28. But a closer look at the allegations in the Complaint reveals that he did so only after obtaining approval from other County officials, providing further support for the notion that he was a willing speaker restrained by the existence of the gag directive, a prior restraint. Dkt. No. 1 at ¶¶ 82-83.11
Finally, Defendants argue that Mr. Ermeti‘s requested speech was relevant to his job duties, and therefore, he was not speaking as a citizen for First Amendment purposes. See Dkt. No. 42-2 at 19 (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). Because Plaintiff‘s standing is derived from the existence Mr. Ermeti‘s First Amendment rights, such a finding would undermine their claim. But it is unclear whether the speech at issue—Mr. Ermeti‘s response to The Reporter‘s inquiry—was “made pursuant to his duties[.]” Garcetti, 547 U.S. at 421. In contrast to the employee in Garcetti, it is unclear whether Mr. Ermeti‘s speech is related to his “daily professional activities” or “work product[.]“. Id. at 42. Defendants assert that because the speech at issue implicated “aspects of [his] job duties,” and Mr. Ermeti‘s “knowledge of who administers a Facebook page for the County,” the speech is not protected. Dkt. No. 42-2 at 19. However, that the speech touched upon issues that are related to his work does not demand dismissal. See Schoolcraft v. City of New York, 10 Civ. No. 6005(RWS), 2012 WL 2161596, at *5 (S.D.N.Y. June 14, 2022) (“The fact that a plaintiff‘s speech is related to his or her job does not automatically result in a loss of First Amendment protection.“). In fact, several issues weigh in favor of assuming First Amendment protection, at least at this stage. First, that Mr. Ermeti spoke on information which was not generally available to the public supports a finding of First Amendment protection. See Griffin v. City of New York, 880 F. Supp. 2d 384, 400 (E.D.N.Y. 2012) (finding public employee‘s speech was made as a private citizen). “Were [public employees] not able to speak on
Moreover, the Court finds that the alleged restrictions on the flow of information from the County were impermissible under the balancing test established by NTEU. Defendants argue that even if there are willing speakers, the County‘s alleged restriction on communications with The Reporter was justified due to the risk of litigation. Dkt. No. 42-2 at 29. But pursuant to NTEU, the government carries a “high burden” and must demonstrate “that the interests of both potential audiences and a vast group of present and future employees . . . are outweighed by that expression‘s necessary impact on the actual operation of the Government.” NTEU, 513 U.S. at 468 (1995). Therefore, this Court must balance the County‘s interest in avoiding litigation risk with the interests of the public and the County employees.
The Court acknowledges, in light of the present case, that the risk of litigation against the County is a “real, not merely conjectural” harm. NTEU, 513 U.S. at 475. However, the County has failed to show that the alleged directive was designed to address the asserted harm in a “direct and material way.” Id. The alleged directive is overbroad and reaches all communications with The Reporter, not just communications pertaining to the de-designation, the subject of potential litigation. On the other side of the NTEU balancing test, County employees’ ability to speak with The Reporter as part of the newspaper‘s newsgathering undoubtedly implicates public concerns. See Piscottano v. Murphy, 511 F.3d 247, 270 (2d Cir. 2007) (“public concern is something that is a subject of legitimate news interest[.]“). Indeed, as alleged, the directive “imposes a significant burden on the public‘s right to read and hear what the employees would otherwise have written and said.” NTEU, 513 U.S. at 470. The Supreme Court has noted that “[g]overnment employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions.” Waters v. Churchill, 511 U.S. 661, 674 (1994).
Therefore, it is clear that the “potential audience[]” for the restrained speech, the public, has a significant interest in the County employee‘s ability to speak to The Reporter regarding the County‘s governance. Moreover,
C. Equal Protection Claim
Finally, the Court dismisses Plaintiff‘s Equal Protection claim. “Courts in the Second Circuit have dismissed equal-protection claims that merely restate First Amendment retaliation claims.” Best Payphones, Inc. v. Dobrin, 410 F. Supp. 3d 457, 484 (E.D.N.Y. 2019) (listing cases); see also Salvana v. New York State Dep‘t of Corrections and Comm. Supervision, 621 F. Supp. 3d 287, 313 (N.D.N.Y. 2022). Here, Plaintiff argues that Defendants’ alleged directive barring its employees from directly speaking to The Reporter, but permitting its employees to speak to other
members of the media, violates their right to equal protection. Dkt. No. 1 at 21. Plaintiff attempts to distinguish its equal protection claim from its retaliation claim by emphasizing that the equal protection claim “is not based just on the fact of the gag order itself, but also on the presumption that other newspapers in the area were free to communicate with County officials in their newsgathering endeavors.” Dkt. No. 56 at 32. But “[a]n equal protection claim merely restates a First Amendment retaliation claim when the only basis for alleged differential treatment is the same protected First Amendment activity on which the retaliation claim rests.” Loc. 3599, NYC Dep‘t of Env‘t Prot. Tech. Pro. Emps. v. City of New York, No. 23-CV-1035, 2024 WL 966077, at *12 (S.D.N.Y. Mar. 6, 2024). Here, the basis for the alleged differential treatment and the protected activity relevant to the retaliation claim is identical: Plaintiff‘s reporting and participation in The New York Times coverage surrounding the County‘s de-designation of The Reporter. Indeed, Plaintiff‘s retaliation and equal protection claims based on the directive are asserted together in Count Two. Dkt. No. 1 at 21. Therefore, the Court finds that the equal protection claim is duplicative and must be dismissed.
D. Legislative Immunity
Defendants attempt to avoid liability for the Board Members, except Chair Molé, by invoking legislative immunity, but the Court finds that immunity does not apply to the vote to de-designate The Reporter. While “[t]he act of voting is quintessentially legislative . . . . hiring or firing a particular employee does not have
Here, the de-designation of The Reporter was not the kind of “discretionary, policymaking decision implicating the budgetary priorities of the city” which could qualify for immunity. Id. (citation omitted). Instead,
E. Article 78
Defendants also attempt to evade liability for the de-designation decision by invoking the
availability of state remedies through
F. Official Capacity Claims
Finally, the Court finds that the official capacity claims against the individual Defendants are mere duplications of the claims against the County itself and must therefore be dismissed. Plaintiff asserts claims against the individual Defendants both in their individual and official capacities. See Dkt. No. 1 at 1. However, Plaintiff also asserts the same claims against the County itself. Id. at 20-21. “Courts within the Second Circuit regularly dismiss with prejudice official-capacity claims against a public official when the claims are duplicative of the claims against the governmental entity for which the official works.” Sonnick v. Budlong, 5:20-CV-410 (TJM/ML), 2020 WL 4345004, at *2 (N.D.N.Y. July 29, 2020) (listing cases). Plaintiff does not address this argument in its response. See generally Dkt. No. 56. As such, the official capacity claims are dismissed.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendants’ motion for a judgment on the pleadings, Dkt. No. 42, is DENIED in part and GRANTED in part; and the Court further
ORDERS that Plaintiff‘s Equal Protection claim is DISMISSED; and the Court further
ORDERS that Plaintiffs official capacity claims are DISMISSED; and the Court further
ORDERS that the motion for judgment on the pleadings is DENIED in relation to all other claims; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 24, 2025
Albany, New York
Anne M. Nardacci
Anne M. Nardacci
U.S. District Judge