Civil rights suit not justified by temporary denial of records

From the Summer 2000 issue of The News Media & The Law, page 28.

The refusal of town officials to provide a free-lance journalist with records because they did not like being bothered by him did not violate the journalist’s civil rights, a three-judge panel of the U.S. Court of Appeals in Cincinnati (6th Cir.) ruled in April.

The journalist, who eventually got the records and was not actually coerced into silence, had not suffered the kind of intimidation that would support his claim that in retaliation for what he had published, the town had interfered with his ability to report the news.

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Free-lance journalist Geoffrey Davidian went to Cookeville, Tenn., in February 1995 to investigate an alleged arson murder of a schoolteacher at the request of the victim’s mother.

While he was in Cookeville, Davidian received a speeding ticket that he litigated with some fervor.

He also began working on other stories, including a report about drug money scandals at a Texas hospital, the most recent employer of the current head of Cookeville’s general hospital. Davidian discussed selling that story to the Putnam Morning Light with its editors, but that newspaper has since gone out of business.

In connection with his several projects, Davidian filed several open records requests with the city. City manager Jim Shipley asked city attorney T. Michael O’Mara to determine if there were a way, under the open records law in Tennessee, to avoid filling Davidian’s requests.

In May 1996, Davidian put out the first issue of The Putnam Pit, which included a story about the hospital administrator and a story about the speeding ticket and the resulting $8,700 litigation costs O’Mara claimed from the city.

In June 1996, O’Mara wrote Davidian that the city would no longer honor his records requests because he was not a citizen of the state. He told Davidian that the city’s efforts to cooperate had been “fruitless” as he had grown “more demanding and belligerent” in his requests. Davidian’s son, Eli, who is a citizen of Tennessee, then requested the records but was also denied them. Throughout the summer, O’Mara continued to refuse to give out further records responsive to the Davidians’ requests. According to court records, Davidian pointed out to the city manager that the city’s charter provided for disclosure of records to the press, but the city manager responded that the city policy would not apply to The Putnam Pit because it was not a newspaper of general circulation.

Davidian also worked out an agreement with The Putnam Star to allow him to represent that newspaper in his requests in exchange for providing it access to the records and distribution of his newspaper. However, that newspaper cancelled the agreement after Shipley had his assistant contact the newspaper, according to arguments in court briefs filed by Davidian.

The Davidians sued for the records in Putnam County Chancery Court. In October 1996, that court ruled that the City of Cookeville had wrongly denied Eli Davidian records he was entitled to see as a Tennessee citizen. However, the court refused to recognize the newspaper as a legal entity in Tennessee entitled to see the records and also did not grant Geoffrey Davidian the records.

In September 1997, Davidian sued Shipley, O’Mara and the City of Cookeville in federal District Court in Nashville for violating his civil rights under the First Amendment by denying him, as a member of the press, access to public records. He said that the newspaper’s criticism of the officials caused them to deny him public records, even though the newspaper accounts had been accurate.

Town officials had used the full weight of their bureaucratic machinery to stonewall him and prevent his effort to report the news, Davidian told the court.

In a deposition, O’Mara told Davidian’s attorney that city officials were not being arbitrary about public records, they just didn’t like Davidian.

The town also said that its denial of records was not based on the content of Davidian’s reporting but upon his “bothersome” approach to town employees and the amount of time they were having to devote to Davidian’s requests. The refusal to give out records was “content-neutral,” they said. O’Mara had been instructed to study Tennessee law to avoid Davidian’s requests, not because of what he requested, but because state employees did not have the time to work with requests that the law does not require them to fulfill, he said.

In December 1998, Judge Thomas Higgins, adopting a magistrate’s recommendations, ruled that the town had not violated Davidian’s rights. Town officials had reasonably perceived that Davidian had interfered with the town’s work, the judge said, and had relied upon content- neutral Tennessee statutes to insulate city employees from Davidian.

Davidian does not have an unrestricted right to gather information and the restrictions here were reasonable and not discriminatory toward the newspaper, the judge said.

Davidian appealed to the U.S. Court of Appeals in Cincinnati (6th Cir.). The lower court had accepted the statements of town officials as to whether Davidian’s behavior had interfered with town work. Davidian argued that it had not. His requests had averaged one a month only, he said, pointing to Shipley’s own logs of Davidian’s requests.

The City of Cookeville, through counsel, attempted to show that Davidian was a trouble-maker, he said, “a one man, Rambo journalist creating so much havoc against the defenseless municipal government.” In fact, the town created its own work-interference problems, he said, “trying to devise superficially clever, yet transparent means” of obstructing critical publication.

The city responded that Davidian had been a “unique drain” on city resources and a “uniquely overbearing nuisance” to city personnel. It reiterated its chronology of facts showing that the process to stop responding to requests had begun before, not after, publication of the first edition of The Putnam Pit.

In April, Judge Karen Nelson Moore wrote for a three-judge panel that although temporary denial of records might affect publication and might thwart a desire to show that officials had engaged in unethical and illegal behavior, the city’s decision had not actually chilled Davidian’s speech.

City officials might 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.

Although some city officials may have made it more difficult for Davidian to obtain the information as quickly as he wanted it, this is not the type of conduct that rises to the level of a First Amendment retaliation claim, she wrote.