New Mayor’s Rescission of Retaliatory Gag Order Moots Journalists’ Challenge
 
August 8, 2006
 
Roxan Kerr - Washington

The U.S. Court of Appeals for the Sixth Circuit has held that a newspaper’s appeal from a lower court’s decision – upholding a former mayor’s citywide gag order that prevented city employees from speaking with reporters from the newspaper – is now moot following a new mayor’s formal rescission of the edict.

In February 2005, then-Mayor George M. McKelvey of Youngstown, Ohio – alleging that the newspaper’s reporters were “failing to report objectively” on his administration – issued an oral directive prohibiting city officials from talking to reporters from the newspaper. In Youngstown Publishing Co. v. McKelvey, The Business Journal and its journalists sued Mayor McKelvey alleging unlawful retaliation for exercise of their First Amendment rights. After an adverse ruling from the trial court, which said the newspaper failed to state a cognizable claim, the plaintiffs appealed to the Sixth Circuit.

The media watched this case with great interest and with no idea that an unexpected twist would occur. Two weeks prior to oral arguments, the new mayor of Youngstown, Jay Williams, who took office on January 1, 2006, formally rescinded Mayor McKelvey’s edict and sent a memorandum to city personnel explaining that the ban no longer existed. Upon learning of this new development, the appeals court asked the parties to submit briefs on whether the controversy was now moot.

The Business Journal took the position that the case was not moot because the ban was capable of repetition evading review and because the city voluntarily rescinded the ban making it possible that without intervention from the court, the new mayor could easily reinstate the ban. These are two factors courts ordinarily consider in evaluating claims of mootness. In its June 27, 2006, decision, however, the Sixth Circuit rejected the arguments. The court reasoned that the voluntary cessation argument failed because “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.” In particular, the court stated that there is no evidence that the circumstances that caused Mayor McKelvey’s edict will occur again – namely that “The Business Journal will publish articles criticizing Mayor Williams and Mayor Williams would then, in retaliation, have to issue a similar edict.” The court held that for the same reason, the newspaper failed to show that it may again face a ban from the new mayor.

In his concurrence, Judge R. Guy Cole, Jr. emphasized that any slight deviation from the facts of the case would require that the court reach the merits of the case. He noted that had Mayor McKelvey (a steadfast supporter) revoked the edict rather than Mayor Williams (whose action regarding the edict has been one of “apparent opposition”), the appeals court’s analysis would be different since the Supreme Court’s standard for determining if a case has been mooted by voluntary conduct is stringent. Judge Cole also warned against putting too much “stock” in the appeals court’s reasoning that “genuine self-correction by a government official, without more, provides a secure foundation for a dismissal based on mootness.” Doing so, he continued, could create an exception within an exception shifting the burden to plaintiffs to show disingenuousness, a shift that is unwarranted.

At bottom, a highly watched case with the sizzle of constitutional challenges ended with the fizzle of a procedural ruling. But the Sixth Circuit left some room for The Business Journal and other media supporters to live and fight another day. Instead of simply dismissing the case as moot, the court vacated the district court opinion, which was favorable to the city, and remanded the case to the district court with instructions that the case be dismissed as moot, removing that precedent from the books.

Holland & Knight represented a coalition of media companies and interest groups as amici curiae in the Sixth Circuit in this case.

For more information, e-mail Roxan A. Kerr at roxan.kerr@hklaw.com or call toll free, 1-888-688-8500.