Newspaper prepares for courtroom confrontation with Colorado town

Wednesday, October 7, 1998

A long-standing feud between city officials in Frisco, Colo., and the publishers of a local weekly newspaper will finally be played out in federal court this December.

At issue is a First Amendment suit filed by publishers Miles F. Porter IV and Mary Staby against town officials in 1993. The two took action after city officials, displeased with what they called biased, inaccurate and unfair criticisms in the Ten Mile Times, pulled all city advertising except legal notices.

Citing several columns and editorials critical of a number of policy decisions town officials made, former Town Manager Elizabeth Black decided to institute the ban in 1991.

The newspaper quoted Black in an article that same year as saying: “I'm fed up with the way [Porter's] column has treated the town. I told Miles that I can't control his pen but I can control (advertising) dollars.”

The newspaper's attorney Robert A. Van Kirk told said: “We've got a very good case. Town officials were upfront about their reason for canceling the ads through the comments they made at the time. This was in direct retaliation for the newspaper exercising its First Amendment rights.”

Said Van Kirk: “It poses a real threat for other media representatives when [town officials] use economic leverage or regulatory leverage to punish critics.”

According to Van Kirk, there is no dispute about the fact that town officials imposed a ban. The dispute, he said, centers around the reasons for that decision.

“If they did terminate the advertising in response to the paper's protected speech then that would be a First Amendment violation,” said Van Kirk, a Washington, D.C.-based First Amendment attorney. “If instead [a jury] finds this was done for neutral reasons, then the town's obligation is to show that they did not rely on the criticisms” as rationale for pulling the ads. “It's that simple right now, it's a matter of what story the jury believes.”

“Now [city officials] contend a couple of things,” Van Kirk said. “They say it's not the content of the articles but the quality of them. They contend it was not published in a manner that was consistent with journalism standards and ethics. They've turned into media critics.”

Steven J. Dawes, an attorney representing the town of Frisco, told said that he does not discuss matters of litigation with the media because the rules of professional conduct for lawyers do not permit him.

Oral arguments in Porter-Staby v. Frisco are scheduled to be heard on Dec. 7.

“This is a small town and a small newspaper, but this case has ramifications that are quite large,” Van Kirk said.