Publisher appeals dismissal of retaliation suit to Supreme Court

Thursday, August 10, 2000

The publisher of a self-described “watchdog” newspaper, whose First
Amendment retaliation lawsuit against Cookeville, Tenn., officials was
dismissed, has made good on his promise to appeal to the U.S. Supreme Court.

Geoffrey Davidian, who publishesThe
Putnam Pit
, contends that Cookeville city officials have refused
him access to public records because he has charged some government officials
with unethical behavior in his paper first published in May 1996.

The Supreme Court “should clarify an important principle of First
Amendment jurisprudence that public officials can abuse an individual’s freedom
of press rights through retaliation even though the individual continues to
publish,” Davidian wrote in his petition to the court.

Because Davidian was not a Tennessee resident, city officials denied
him access in 1996 to public records in accordance with their interpretation of
the Tennessee Open Records Act. Davidian responded by having his son Elijah, a
Tennessee resident, request the records. His son was denied access, Davidian
said, because he was associated with The Putnam

Geoffrey Davidian eventually sued in state court over denial of access
to public records. Davidian eventually dropped his state court suit after city
officials relented and agreed to turn over the records to Davidian’s son, a
Tennessee resident.

The father then sued in federal court, contending that the delay in
receiving access to the public records was a violation of his civil rights.

A federal magistrate recommended that the case be dismissed in
December 1998. A federal district court judge dismissed the case in February
1999. On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals
unanimously affirmed the lower court in Davidian v.
on April 7.

“In the present case, Davidian has easily shown that he was engaged in
constitutionally protected political speech when he published The Putnam Pit
— a newspaper that contained articles that were critical of several local
public officials,” the appeals panel wrote.

“Furthermore, there is sufficient evidence … to show that the
decision to deny access was motivated at least in part by the statements that
Davidian made in his newspaper,” the panel wrote.

However, the appeals court panel ruled that “the adverse conduct (by
city officials) in this case is not severe enough to chill a person of ordinary
firmness from continuing to publish unfavorable articles about city officials.”

The court compared Davidian’s claim to the retaliation case of
McBride v. Village of Michiana. In
McBride, the 6th Circuit ruled that
a reporter who was harassed on the street, verbally harassed at town meetings
and threatened for her criticism of city officials stated a valid claim of

“Indeed, Davidian has provided no evidence that city officials engaged
in the type of harassing and physically threatening behavior that went on in
McBride,” the panel wrote.

“City officials may have tried to limit Davidian’s sources, but they
did not engage in the type of threatening or intimidating behavior that is
specifically designed to chill a person of ordinary firmness from continuing to
exercise First Amendment rights,” the panel concluded.

However, Davidian says that Cookeville officials engaged in an
“overall pattern of retaliation.”

“The press needs to operate without fear of confronting bureaucratic
gamemanship to regulate what is reported about government,” he wrote. “The
Defendants carried out a campaign of retaliation against Geoffrey Davidian
because he criticized the political officials of the City of Cookeville. The
Defendants intended to discourage, delay, deny, and at the very least frustrate
Davidian until he ceased or altered his publications.”

Davidian said in an interview that he is asking the high court “to
articulate a clear rule to guide judges in deciding when a person can bring a
civil rights claim against public officials who retaliate against them because
of what they say or write.”

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