‘Watchdog’ newspaper publisher says he’ll take case to Supreme Court

Friday, May 26, 2000

Geoffrey Davidian, publisher of a self-described “watchdog” newspaper who claimed he was retaliated against for criticizing Cookeville, Tenn., officials, says he will appeal the adverse judgment in his First Amendment lawsuit to the U.S. Supreme Court.

Davidian, who publishes The Putnam Pit, contends that Cookeville city officials have refused him access to public records because he has charged some government officials with unethical behavior.

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 Pit.

Geoffrey Davidian eventually sued in state court over denial of access to public records. The court ruled that city officials were not required to turn over the records to Davidian because he was not a state citizen. (He currently resides in Wisconsin.) However, the court also ruled that city officials were required to turn over the records to Davidian’s son, who is 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 district court granted summary judgment to city officials. On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals unanimously agreed in Davidian v. O’Mara 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 retaliation.

“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.

Davidian filed a motion for the three-judge panel to reconsider its earlier decision. The court denied that motion on May 9. Davidian now says that he is “going to try to take this to the U.S. Supreme Court.”

John Allen, Davidian’s attorney on appeal, said, “There were a lot of instances where the city did seek to chill his incentive to publish his paper. The ‘person of ordinary firmness’ standard may be a correct statement of the law, but is wrong to apply that standard to Mr. Davidian, who is a person of extreme resolve.”

Davidian vows to press forward.

“You must have a lot of money and guts to exercise your First Amendment rights,” he said. “According to the 6th Circuit, because I continued to publish, I was not chilled. But the court ignored the fact that the government stopped me from distributing my paper. It should not be hard for a person to be critical of a corrupt government.

“I am not going to back down,” he said. “I have a responsibility to my fellow citizens.”

Davidian also has another case currently before the 6th Circuit. The Putnam Pit, Inc. v. City of Cookeville seeks access to “cookie” files in city employees’ computers. (A cookie is a small file that a Web site deposits on a user’s hard drive, often with a unique number that identifies the user’s computer. The next time someone using that computer goes back to the site, the site will recognize that computer.)