Press & Journal lawyer's letter to council: ‘We implore you to correct the unconstitutional action’
September 18, 2018
The Honorable James H. Curry, III, Mayor
The Honorable Damon Suglia, Member of Borough Council
The Honorable Dawn Knull, Member of Borough Council
The Honorable Jenny Miller, Member of Borough Council
The Honorable Angela Lloyd, Member of Borough Council
The Honorable Ian Reddinger, Member of Borough Council
The Honorable Mike Woodworth, Member of Borough Council
The Honorable Robert Reid, Member of Borough Council
Re: Termination of the Borough of Middletown’s Commercial Relationship with the Middletown Press & Journal
Dear Mayor Curry and Members of Borough Council:
This firm serves as counsel to Press and Journal, Inc., parent company of the Middletown Press & Journal (“Press & Journal”). This letter is addressed to you as the final policy-making officials of the Borough of Middletown (“Borough”).
Each of you, with the exception of Councilor Reid, has signed a letter dated July 17, 2018 (“Policy Letter”), in which you announced the Borough’s settled decision to terminate its commercial relationship with the Press & Journal for the advertising of Borough legal notices and other publication services.
This relationship between the Borough and the Press & Journal has existed longer than the memory of any person now living, and likely has endured for more than a century. A review of the Borough’s advertising history with the Press & Journal over the past 10 years reveals that the Borough has placed, on average, one to two legal notices for publication with the Press & Journal per month over the past one hundred and twenty months. This is a pre-existing commercial relationship of extraordinary length and frequency by any measure.
Your Policy Letter states that the Borough’s decision to terminate its placement of public legal notices for publication with the Press & Journal was motivated by, inter alia, the Press & Journal’s reporting and/or editorializing upon the following issues of public concern:
• The Elks Theater
• National Night Out
• Police Discipline
• Borough Ordinances Affecting Student Housing
• Litigation Against Suez and McNees, Wallace & Nurick
The Policy Letter also takes exception to the paper’s “local campaign coverage” and suggests that the Press & Journal itself has “help[ed] finance select campaigns[.]”
Your adoption of the Policy Letter is contrary to the American political tradition of a free and independent press, free speech, free petitioning of government and free political association. Americans have never countenanced government manipulation of the private press, and your stated motivation for terminating the Borough’s multi-decade commercial relationship with the Press & Journal is not just bad policy but an unconstitutional attempt to manipulate the free press.
The United States Supreme Court in the case of Board of County Commissioners of Wabaunsee County v. Umbehr, 518 U.S. 668 (1996), held that independent contractors with pre-existing commercial relationships with government entities cannot be denied contractual opportunity based upon the contractors’ exercise of protected First Amendment rights.
As noted, the Policy Letter which you signed implicates no fewer than four rights protected under the First Amendment — speech, press, petition and association — and you have used our client’s exercise of those rights to justify retaliatory denial of any further commercial relationship with the Press & Journal.
By way of example, you state that the Press & Journal’s reporting has been “detrimental to the efforts and initiatives of the Borough” and that such writing has contained “disheartening and demoralizing instances of distasteful sensationalism, misrepresentation of information and statements, unfounded speculation, questionable sourcing and observable bias.”
The Policy Letter even extends the Borough’s objections from “articles” to “editorials[.]” Such scope is particularly extraordinary in that it attests to your disagreement with opinions expressed by the Press & Journal as a motivating factor in termination of the commercial relationship with our client.
The Policy Letter in the final paragraph dangles the prospect that the Borough would resume its commercial relationship with our client if the Press & Journal would “responsibly and professionally report” on matters of Borough governance. This attempted punishment of a member of the free press—requiring a kind of probationary penitence prior to restoration—is a naked attempt to coerce favorable press coverage.
We implore you to correct the unconstitutional action you have undertaken and enter into earnest discussions with our client to restore a level playing field on which the Press & Journal can fairly compete for advertising opportunity free from discriminatory prejudice by the Borough.
Your collective recantation of the Policy Letter will serve both as renunciation of political retaliation generally and demonstrate support for a free press and its prerogatives guaranteed by the First Amendment. This will additionally show the Borough’s willingness to subject the affairs of Middletown’s government to public scrutiny—something which is always in the public interest, an interest which you have sworn to advance.
We request that you contact the undersigned no later than Tuesday, September 25, 2018, to advise whether you are willing to enter into talks to remediate the wrongdoing the Policy Letter has wrought.
We are hopeful you will do so. In the absence of the Borough’s revocation of the Policy Letter and legally-enforceable guarantee of a fair opportunity for our client to be considered for future publication orders from the Borough, our client will pursue its legal rights and take action as may be in the public’s best interest to ensure continuance of a free and un-coerced press in Middletown to the benefit of all its residents.
Aaron D. Martin