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New York police chief’s prior restraint claim partially dismissed

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  1. Prior Restraint

    NMU         SECOND CIRCUIT         Prior Restraints         Oct 29, 1999    

New York police chief’s prior restraint claim partially dismissed

  • Town policy requiring notice to board, but not advance approval, before police can contact the press does not violate First Amendment, but threats of punishment if policy were violated could amount to an illegal prior restraint.

A three-judge panel of the U.S. Court of Appeals in New York City (2d Cir.) held in late October that a court had correctly dismissed before trial the majority of the First Amendment allegations made by the Cortlandt, N.Y., police chief who claimed that the town’s elected officials had impermissibly placed a prior restraint on his speech.

The free speech claims center around a town policy stating that the police chief must provide notice to the town board before telling the press about the subjects of any press conferences that he wishes to call, other than for press conferences held to discuss an arrest or accident, according to the opinion.

The appellate court ruled that the trial court had multiple reasons to dismiss the claim that the policy as written violated the First Amendment, including that the policy survived constitutional scrutiny because it requires only advance notification of the subject matter of the police chief’s speech and not advance approval over the speech itself.

The court went on to rule, however, that Police Chief Robert Pavone could pursue his claims based on the implementation of the policy, which Pavone alleges was an elected official’s public threat to discipline him if he talked to the media without the town board’s permission.

It noted that the trial court’s dismissal of this First Amendment claim before trial was incorrect because questions of fact existed about whether the threat constituted a prior restraint on Pavone’s speech and whether the people and entities that Pavone sued could defend themselves under doctrines established to immunize public entities and officials.

The court also affirmed the dismissal before trial of the free speech claims of Animal Control and Parking Officer Charles Morris, who had alleged that he had been fired in part for speaking out in favor of Pavone and against the town supervisor. The court found that although Morris’s speech concerned matters of public concern and was therefore protected, he had failed to show that his termination two years after his public statements in support of Pavone was caused by his protected speech.

Pavone was appointed Cortlandt’s first police chief in 1982, according to the court. After a dispute about the police department’s management, Pavone sued the town board in federal court in 1994 for allegedly punishing him in response to his public statements. That suit was settled in 1994, but Pavone, his son and another public official filed three additional federal court lawsuits in 1996 and 1997.

(Morris v. Lindau)

© 1999 The Reporters Committee for Freedom of the Press

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