Shushed N.Y. council critic can pursue speech claim

Thursday, July 26, 2012

A man removed from a Niagara Falls, N.Y., City Council meeting for criticizing the council chairman can continue with his free-speech lawsuit, a federal judge has ruled.

The decision gives credence to the argument that government officials cannot remove people from a public meeting simply because during the public-comment section, the person engages in speech critical of council members.

Niagara Falls has a resolution that allows people to speak “on any topic of public concern for a time not to exceed five (5) minutes.”

Matteo Anello spoke during the public comments at a council meeting in October 2007. He titled his speech “Guineas and Grease Balls” with the subtitle, “Where There is Smoke There is Fire.” He calmly said that several people had told him that Council Chairman Robert Anderson treated Italians poorly. For example, he said:

“Three times in the past few weeks, different people recounted incidents to me during which Council Chairman Robert Anderson displayed, if these incidents are true, his ignorance in how he, as a councilman or as a person regards Italians. If true, and I believe they are, these occurrences in which he aimed his ignorance toward Italians are shameful.”

Anderson ordered Anello to quit speaking and then ordered a police officer to remove him from the premises. The officer handcuffed Anello and later charged him with disorderly conduct and resisting arrest. The charges were later dropped.

“The sole reason they stopped him was because of the content,” said Jeanne Vinal, Anello’s Lockport-based attorney. “He was stating that the chair had been heard to make anti-Italian slurs.”

Anello filed a federal lawsuit against Anderson, the police officers and the city, alleging that they had violated his First Amendment free-speech rights. The defendants contended that Anello acted disruptively, justifying his removal.

However, U.S. District Judge William M. Skretny thought otherwise in his July 11 opinion in Anello v. City of Niagara Falls. The judge noted that the video of the meeting shows that Anello was not disruptive. “Indeed, a review of the video reveals that there can be no question that he spoke calmly, even cordially, in presenting his views.”

The defendants also argued that Anello’s free-speech claim should fail because he used offensive language, including “Guineas and grease balls.” Judge Skretny said the language could be deemed offensive, but said that Anello’s use of the terms must be analyzed in context. “His remarks were prompted in the first place by his own aversion to the City council chairman’s alleged use of these derogatory words,” the judge said.

Skretny noted that under city rules, Anello was allowed to speak during the public-comment section “on any topic concerning the general welfare of the city.” The character of the council chairman fit within this broad category of speech, the judge reasoned.

Vinal told the First Amendment Center: “We asking for a trial date and are considering a motion for summary judgment on the First Amendment issue.”

Daniel P. Oliverio, the attorney representing the city in this litigation, said that no appeal could take place at this point in the litigation.

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