Appeal Filed in Newspaper/School Lawsuit

BY DANIEL GILBERT
BRISTOL HERALD COURIER
An attorney representing the Buchanan County, Va., School District in a lawsuit brought by the publisher of a weekly paper, filed a brief on Monday in the U.S. Court of Appeals for the Fourth Circuit, seeking to overturn a district court’s ruling.

The brief argues that the school officials did not violate the First Amendment rights of Earl Cole, publisher of The Voice, by banning him from school grounds, and that even if they did, their actions were reasonable and should be immune to legal recourse.

The brief follows the decision in January by a federal district court judge to deny a motion for judgment in favor of the school district.

Cole had come onto the grounds of an elementary school in October 2006 to report a story about a school board member who sent his child to a different district. The school’s principal informed Cole he had to report to the main office of a school for permission to be on the grounds. Three days after Cole published a story critical of the board member, the board passed a resolution barring him from the premises.

The board later amended the resolution to allow him limited access to schools – to vote, and to attend public board meetings. Cole filed a lawsuit against the school district and board members in January 2007.

Jim Guynn, the attorney representing the school district and board members, objects to the legal standards the district court used in assessing whether the school officials acted in retaliation and abridged Cole’s rights.

Citing a case involving the Baltimore Sun and the governor of Maryland, Guynn argues that Cole’s rights were not violated “because a reporter of ordinary firmness would not be chilled by the defendants’ actions.”

Even if Cole’s First Amendment rights were violated, Guynn reasoned, the defendants should be protected by the doctrine of qualified immunity “because a reasonable official under the circumstances would not know ... whether or not their actions would violate” the standard set forth by case law.

In the Baltimore Sun case, the governor issued a directive to staff not to talk to a reporter and a columnist who had written critically of him. An appellate court ruled the action was retaliation, but did not “create a chilling effect” greater than journalists ordinarily face in the course of a reporting story.

But James P. Jones, the federal district judge presiding over the case, opined that a chilling effect is not the same for a major metropolitan daily as it is for The Voice, a 7,000 circulation weekly.

Jones concluded that the smaller newspaper in a rural setting “is more likely to be adversely affected by retaliatory conduct” than a reporter for a larger, urban paper. The judge further found that the Buchanan County school officials banning Cole from school property was more severe than the governor’s directive to his staff in the Baltimore Sun case.

In his brief, Guynn notes that other reporters who work for Cole could cover stories that involved the public schools, and questioned the basis for determining whether an action is retaliatory and gauging its severity.

“Objectively, there is no way to determine if a governor’s order that employees in his office not speak to particular reporters is more or less sever than restricting Cole from public school grounds during the school day,” Guynn wrote.

Cole, he maintains, cannot show that he was barred from school premises exclusively based on retaliation for his critical articles. Ruling that Cole’s criticism was a motivating factor in retaliation would set two disturbing precedents, he argued: establishing criticism as a legal foundation for alleging retaliation, and giving weight to circumstantial evidence based on “temporal proximity” between the criticism and government action.

Guynn argues that the Baltimore Sun case is the most analogous to Cole’s lawsuit, but Michael Bragg, Cole’s attorney, pointed out that The Voice is not on the same playing field as a larger metropolitan paper.

“They just don’t have the same level of power to be able to deal with the county officials,” Bragg said in a Tuesday phone interview. Buchanan County school officials, he argued, went further than the governor of Maryland by infringing on what Cole could report.

“When you go beyond saying ‘don’t talk to the press’ to ‘don’t let the press have access to what the public generally would,’ then that becomes a chilling effect,” Bragg said.

Even though Cole employs other reporters, the resolution limited his ability to report by “cutting him off from primary sourcing,” Bragg said.

The attorney must file an opposing brief by Aug. 11.

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