NEWS MEDIA UPDATE · SIXTH CIRCUIT · Newsgathering · July 5, 2006
Suit challenging mayor’s edict against reporters is moot
July 5, 2006 · A business newspaper’s lawsuit against a Youngstown, Ohio, mayor who ordered city officials not to speak with reporters is moot because the mayor is no longer in office and the current mayor appears unlikely to issue a similar edict, the U.S. Court of Appeals in Cincinnati (6th Cir.) ruled June 27.
The February 2005 edict from then-Mayor George McKelvey barred city workers from talking to reporters from The Business Journal, a twice-monthly newspaper. Mayor Jay Williams took office Jan. 1 and formally rescinded McKelvey’s edict, rendering the case moot, a three-judge panel of the appellate court ruled unanimously in an unpublished opinion that did not address constitutional free-speech issues argued by the newspaper.
“In this case, there is simply no indication that the new mayor of Youngstown, Mayor Williams, will return to the ‘old ways’ of Mayor McKelvey and issue a similar edict. . . . Had Mayor McKelvey — rather than Mayor Williams — revoked the edict during this litigation, then we would be more inclined to find that such an act was done to defeat judicial review,” Judge Cornelia G. Kennedy wrote for the court. “Yet we find the edict was revoked not to defeat litigation, but simply due to a change in circumstances.”
The three-judge panel vacated a May 2005 ruling from U.S. District Judge Peter Economus that McKelvey did not violate the First Amendment and that enforcing news media access to information not otherwise available to the general public would afford the media a special privilege.
That means that there is no precedent on the books in the Sixth Circuit — which covers Kentucky, Michigan, Ohio and Tennessee — for public officials to cite in issuing edicts similar to McKelvey’s, said Jill P. Meyer, an attorney for The Business Journal.
“At the very least, we’re back to where we were before the bad McKelvey decision,” she said.
In vacating the lower court ruling, Judges Kennedy, R. Guy Cole Jr. and David W. McKeague also noted that for a freeze-out to occur again, the paper would have to criticize Williams on its news pages and he would have to retaliate.
“There is no evidence that the Business Journal has even published an article criticizing Mayor Williams, let alone evidence that Mayor Williams is planning on re-issuing Mayor McKelvey’s edict in retaliation.”
Judge Cole, in a concurring opinion, noted that Williams completely distanced himself from the edict.
“Mayor Williams’ only relationship with the no-comment policy had been one of apparent opposition,” Judge Cole wrote. “Not only did he officially revoke the policy, he did so in writing, and even sent a copy to The Business Journal. One questions whether Mayor Williams voluntarily terminated the policy at all, or whether he merely indicated the obvious: that, with Mayor McKelvey out of office, the policy was defunct.”
The paper and several media groups, including The Reporters Committee for Freedom of the Press, who filed a friend-of-the-court brief in the case, argued that McKelvey’s edict violated constitutional free-speech protections.
The newspaper sued McKelvey in 2005 after he put in writing what he had said orally a few weeks before: that city employees could not communicate with Journal reporters about any city business except to comply with public records requests. The edict came after the Journal successfully sued the city when it failed to release public records about the planning and building of a convocation center.
(Youngstown Publishing Co. v. McKelvey; Media counsel: Jill P. Meyer, Maureen P. Haney, Cincinnati) — KM