Mountain Citizen staff wins right to publish as it fights contempt

From the Summer 2002 issue of The News Media & The Law, page 7.

By Christine Lagorio

When Mountain Citizen Editor Gary Ball looks out the window of his Appalachian mining-town newsroom in Inez, Ky., he sees an underdeveloped main street and the law offices of John R. Triplett.

Triplett, a Republican Party leader and former water board chairman for the town, became the Mountain Citizen’s chief nemesis, but not because the newspaper had been fervently crusading against his water policies.

It was because he took their name.

Triplett, infuriated by photographs the paper was running of dirty water streaming out of local taps and upset at accusations that his agency was at fault for the sometimes undrinkable water, thought he had found a way to stop the flow of what he called “rough-and-tumble” coverage.

Checking with the secretary of state’s office keyed Triplett into the fact that the newspaper had allowed its incorporation papers to lapse, and he promptly laid claim to the name. “Mountain Citizen Inc.,” and two other corporate titles formerly used by the paper’s parent company, New Wave Communications, now belong to Triplett.

“In my opinion, this was an attempt to silence the press, that’s it,” Ball said. “The public can see through this. We’ve had overwhelming support.”

The 6,000-circulation weekly newspaper was propelled into the national spotlight by the name tug-of-war and ensuing tales of mountain politics affecting First Amendment rights to publish. When the Mountain Citizen staff continued to publish, a judge issued contempt citations and fines.

Prior restraints of this variety are rare, and the media community is wary of the possible ramifications of the judge punishing journalists attempting to continue publishing a well-established newspaper, said David Thompson, executive director of the Kentucky Press Association.

“This case is truly bizarre,” Thompson said. “It started as strictly an issue of copyright, but seems to have pretty widespread implications, since the paper is being punished so harshly for an unconstitutional restraint.”

Martin County Judge Daniel Sparks became involved in the case two months ago after Triplett asked for help with his claim to the newspaper’s name. Sparks issued a restraining order against the newspaper’s three most prominent staff — Ball, publisher Roger Smith and Smith’s sister, owner Lisa Stayton.

Since then, the staff has published eight issues — six in defiance of Sparks’ ruling — and each of the managers has been fined $500 for defying the court order.

“This is just plain aggravating,” Smith said. “We have lost a lot of money because of this, and we didn’t do anything wrong.”

The paper hired trademark attorney David Fleenor of Lexington to help its case. Fleenor is filing a motion to overturn the contempt fine and looking to appeal if the judge denies a request to reconsider.

From the start of the legal battle almost two months ago, the paper has not yielded its right to publish under the name that has appeared on its front page every week for more than a decade.

When asked if he has any plans to cease printing while the name is in limbo, Ball said: “No way.”

“It’s on our window, and it’s our paper,” Smith agreed. “I’d like to see them try to take it off.”

Although Triplett himself would not comment on his court actions against the paper or his acquisition of the name, his daughter, Regena Triplett, said he acquired the name for reasons other than to stop the publication of critical stories.

“He may be deliberating over whether to get into the communications field, whether that may be a written form, or radio or cable TV, and it’s difficult to get into a market with more than one media using the same name,” said Regena Triplett, who serves as her father’s attorney.

In court, Stayton said the name the paper publishes under — “Mountain Citizen”– does not include an “Inc.,” which is part of the name Triplett acquired. She said the newspaper has been printing a small disclaimer on the second page explaining the paper’s disassociation with the incorporated name and Triplett and his water board in general.

On the front page, the paper continued publishing stories and photos about the paper’s own name dispute and photos of dirty water and Triplett, who has resigned from the water board.

Local Republicans and allies of the water board contend that the paper was being unfair to Triplett by repeatedly firing negative stories at him and at what The New York Times called “the reigning Republican county machine.” Although the water board classifies the tap water in Inez “safe to drink” on most days, it has frequently run rusty and boil advisories come every few weeks. School officials taped over drinking fountains in public schools and distributed bottled water for children to drink.

Fleenor said the judge had a poor basis, if any at all, for issuing the restraint against publishing, because it was clear Triplett’s only intention in obtaining the name was to harm the Mountain Citizen.

“I think the restraining order was plainly wrong and they were smart to dissolve it,” he said of the May 21 order. “It is clear that my clients had the First Amendment on their side when publishing under a name that had been well established.”

Sparks seemed to agree, dissolving the restraining order against the paper after Triplett withdrew his request for an order permanently barring the paper from using the name. But he said he felt compelled to fine the journalists for contempt of his prior ruling.

“To condone the actions of the defendants would be tantamount to promoting and fostering the disrespect and distrust of the judicial system,” Sparks said in his June 27 ruling.

Editors say they feel they have no choice but to fight the fine.

“If you set this kind of precedent, what’s going to happen next time?” Ball asked in an interview with the Associated Press.

In what Ball called “mountain politics,” Stayton’s house was vandalized and robbed while she and her family were vacationing in the midst of the court dispute. Two briefcases of the newspaper’s documents were stolen, but local police have made no arrests in the case.

Leading up to the dispute, Stayton inadvertently allowed the paper’s state incorporation papers to lapse, which she attributed to her busy schedule and being consumed with caring for a brother who recently died of cancer. The issues surfacing from the name-grab dispute have served to raise awareness to similar publications that strong business practices may be just as important as good journalism to a newspaper.

“I guess I hope our case can serve as an example to other papers like us,” Smith said. “In fact, we’ve gotten a lot of calls from other papers wondering if this same thing could happen to them.”

“This case has implications that are pretty widespread,” said Thompson of the state’s press association. “It has caught the eyes of small business owners and newspapers who are not caught up with their state paperwork.”

Thompson said one daily paper came to him for advice because it had not filed state incorporation papers since 1988.

“Now, it’s our job to watch out for the small guys,” he said, referring to the state’s handful of low-circulation weeklies that distribute across county lines, covering local news and often vigilantly reporting on corruption in their immediate communities.

Another business consideration invoked by the name dispute concerns U.S. postal regulations. Mass mailing permits are filed under particular corporate names, and the Mountain Citizen would have had to change its entire registration if Triplett had successfully maintained the restraint.

Fleenor and attorney Richard Stayton, also the owner’s husband, will ask the court to reconsider the fines at their next court appearance, which will determine if an appeal will be necessary. Fleenor is also still considering taking the case to a federal court on the grounds of the paper’s time-established trademark.

“It is clear the judge had gone well too far with this,” said Jon Fleischaker, media counsel for the Kentucky Press Association. “He is only considering copyright and state issues and ignoring the common law trademark or the federal issues.”

In the meantime, the Public Service Commission ordered a more detailed investigation into the water district’s internal operations and financial records. A public water hearing is scheduled for Sept. 13 to review the investigation’s results.

Staff morale at the newspaper is at an all-time high since the public and press are offering praise of both the paper’s aggressive reporting and sustained publication while facing an uncertain future, Ball said.

(New Wave Communications Inc. v. Stayton)