Federal court allows Va. reporter’s retaliation claim to continue

Tuesday, January 8, 2008

A federal district court in Virginia has refused to toss a reporter’s lawsuit alleging that a county school board retaliated against him for writing articles critical of one of the board’s members.

Earl F. Cole, who reports for the Buchanan County newspaper The Voice in southwestern Virginia, sued in federal court after the Buchanan County School Board specified that he “shall not enter any school property during operational hours while school is in session and students are present, except upon express written invitation or to attend a public board meeting or to exercise his right to vote.”

The school board initially had passed a resolution that Cole would be prosecuted for trespass and that the board had the responsibility to protect students from “known criminals.” A board member knew that Cole had two old misdemeanor convictions. The board passed its first resolution three days after one of Cole’s articles criticized a school board member for sending his child to a school outside the district that the member represents.

The school board members filed a motion for summary judgment, contending that even if Cole could establish a constitutional violation, the officials were entitled to qualified immunity. The doctrine of qualified immunity allows government officials to escape liability for what are later deemed unconstitutional actions if it was not clear at the time that their acts violated any constitutional rights.

On Dec. 29, a federal district court in Cole v. Buchanan County School Board rejected the school board’s summary-judgment motion, finding that Cole “has sufficiently shown a constitutional violation” and that “a reasonable school board member … would have known that it was unlawful to bar a reporter from school grounds in retaliation for publishing critical articles.”

U.S. District Court Judge James P. Jones first addressed whether Cole had shown evidence of unlawful retaliation. He noted that a plaintiff alleging a First Amendment retaliation suit must show that: (1) he engaged in protected speech; (2) the defendants' retaliatory actions adversely affected the plaintiff’s constitutionally protected speech; and (3) a causal connection between the plaintiff’s speech and the defendant’s retaliatory actions.

Jones reasoned that Cole had done enough to send his case to a jury to determine whether the defendants were liable for unlawful retaliation. Both sides agreed that Cole’s investigative reports and critical editorials were protected speech. The judge also found that there was sufficient evidence to show that the defendants’ actions adversely affected Cole’s free speech.  Cole noted that the resolution severely limited his ability to cover sporting events and student exhibitions. Finally, the judge reasoned that the passage of only three days between a critical article and the school’s resolution raised an inference of retaliation.

Michael A. Bragg, Cole’s Abingdon, Va.-based attorney, said the case would go to trial on Jan. 14.

“We were very pleased with the judge’s ruling on the retaliation issue,” he said. “Now we have the opportunity to present the case to a jury and let them hear the evidence.”

Tags: , , ,