Reporter's First Amendment claims against Gannett newspaper dismissed

Daily Record (Rochester, NY), Sep 9, 2004 by Helen Nguyen

Finding there was insufficient evidence to support a former Democrat & Chronicle (D&C) reporter's claim that her First Amendment rights were violated when the newspaper refused to continue running certain articles of hers involving the Monroe County District Attorney's office, the U.S. District Court for the Western District of New York granted summary judgment to the newspaper and dismissed the claims.

Specifically, Judge David G. Larimer in Michele Locastro Rivoli v. Gannett Co., Inc. concluded the reporter had no constitutional right under the First Amendment to have any of her articles published. The judge also found Rivoli failed to plead a state action under 42 USC Section 1983 since there was insufficient evidence that her editors and former District Attorney Howard Relin engaged in a conspiracy to violate her First Amendment rights.

Case Background

Prior to her resignation in September 2002, the plaintiff, Michele Locastro Rivoli, worked as a reporter for the D&C, which is owned by Gannett Co., Inc.

Beginning in February 2001, Rivoli wrote a number of articles concerning the Monroe County DA's office handling of certain felony cases. Editorials were also written that were critical of the DA's office with regard to this topic.

Relin, who was the district attorney at the time, denied the articles' allegations and subsequently met with Rivoli, as well as with her editors and the D&C's publisher.

Rivoli's last story on the topic was in April 2001. She was allegedly told by her editors that Relin was a good source for news stories and should be treated nicely and that some individuals they talked with questioned her objectivity. As a result, she was told the paper would not run any more stories about the pending unresolved felonies until after an investigation conducted by the state had been completed.

Rivoli accused the editors of having a deal with Relin. She also alleged D&C's executive editor threatened her with a slander lawsuit if she spoke publicly about the situation. Rivoli claimed she tape recorded this conversation, as well as other conversations that she had with her editors.

Subsequently, Rivoli was reassigned to the Our Towns section of the D&C. She claimed her editor told her she would never again write another front page story for the paper. On Sept. 4, 2002, Rivoli resigned.

Seeking compensatory and punitive damages, Rivoli filed a lawsuit against Gannett. Pursuant to Section 1983, Rivoli alleged that through her editors, Gannett entered into an agreement with Relin to deny her First Amendment rights to freedom of speech and freedom of the press. Rivoli also alleged her editors, acting in concert with Relin, punished her in retaliation for her exercising her First Amendment rights by reassigning her to the Our Towns section of the paper.

First Amendment Claims

In finding there was insufficient evidence to support Rivoli's claims, the court first noted that under the First Amendment, Gannett had the right to determine what to include, as well as what to exclude in its publications.

[J]ust as the First Amendment does not require a private publication to publish any submissions by an outsider, see Miami Herald Publishing Co. v. Tornillo, 418 US 241, 256-58 (1974) ... neither does it require a privately owned newspaper to publish any particular stories or articles written by its own reporters. See Collard v. Smith Newspapers, Inc., 915 FSupp 805, 813 (SDWVa 1996).

The court also found there was insufficient evidence to support Rivoli's claim that Gannett and Relin had a deal, in which Gannett acted in concert with Relin to violate her First Amendment rights.

It is true that, if a governmental body or official interferes with a newspaper's decisions about what to publish or not publish, that may violate the newspaper's First Amendment rights, see e.g., Miami Herald, 418 US 241 (coerced right of reply to newspapers editorials), explained Judge Larimer. But, there is no such claim here. All that plaintiff has alleged is that Relin and Gannett reached some type of 'deal' - in other words, an agreement - that Gannett would stop running stories about the alleged malfeasance in the DA's office over the handling of felony cases. There is no allegation that Relin misused his powers as district attorney to coerce Gannett into this agreement, however. See Vander Linden v. Wilbanks, 128 FSupp2d 900, 903 (DSC 2000).

In particular, the judge noted that Relin had a right under the First Amendment to be critical of Rivoli's articles and that there was nothing pernicious about a public official attempting to dissuade the media from criticizing him.

The court also determined there was no merit to Rivoli's retaliation claim, noting there was no evidence that Relin played a part in, or even knew of, the newspaper's decision to reassign Rivoli to the Our Towns section. Overall, the court found Rivoli failed to establish a close nexus between Relin and Gannett with respect to the actions taken against her.

Court's Ruling

In dismissing all of Rivoli's claims against Gannett, the court concluded, At bottom, plaintiff's position is tantamount to saying that once Relin expressed his displeasure at the stories about the DA's office, Gannett had to keep running the stories for as long as plaintiff wanted, or risk a lawsuit by her for violating her First Amendment rights ... Her position seems to be that if Relin's displeasure played any role in her editors' decision in this regard, then that is enough to satisfy the state action requirement. That would stretch the concept of state action far beyond reason or the governing case law in this area.