The City of Troy, New York, "Where Henry Hudson Turned Around."

Monday, May 12, 2008


The Sanctuary for Independent Media filed a Notice of Claim against the City of Troy for violation of their First Amendment right to free speech. The Sanctuary was targeted for closure one day after a controversial exhibit, The Night of Bush Hunting, opened.

A Notice of Claim is the first step in the litigation. After the passage of the requisite time, a complaint will be filed. We believe the complaint will be filed in Federal Court.

For background and brilliant analysis, you can go here and here.

The Sanctuary has agreed to halt litigation in exchange for an apology. The Mayor has refused. An apology would save taxpayers a major expense but the Administration would rather spend our money defending their assault on the First Amendment. Perhaps a compromise is in order: Harry can apologize but keep his fingers crossed. That's perfectly acceptable under Federal Law unless the Plaintiff serves Notice of No Crossies.

What will the Sanctuary have to prove in order to be successful?

a plaintiff alleging a First Amendment retaliation suit must show that: (1) he engaged in protected speech; (2) the defendants' retaliatory actions adversely affected the plaintiff’s constitutionally protected speech; and (3) a causal connection between the plaintiff’s speech and the defendant’s retaliatory actions.

It will be difficult for the City to defeat the lawsuit on the first two grounds. The suite will likely be fought over the causal connection between the speech and the retaliatory action. Since municipalities rarely oblige with direct evidence of retaliation, circumstantial evidence will be needed. What suffices for such evidence? Temporal proximity is always useful:

Jones reasoned that Cole had done enough to send his case to a jury to determine whether the defendants were liable for unlawful retaliation. Both sides agreed that Cole’s investigative reports and critical editorials were protected speech. The judge also found that there was sufficient evidence to show that the defendants’ actions adversely affected Cole’s free speech. Cole noted that the resolution severely limited his ability to cover sporting events and student exhibitions. Finally, the judge reasoned that the passage of only three days between a critical article and the school’s resolution raised an inference of retaliation. - Cole v Buchanan County School Board

There are also implications in choosing a Federal forum for this suit. According to our legal advisers:

1) Litigation in Federal Court moves quickly;

2) Federal Judges are less tolerant of discovery-related hanky-panky;

3) Discovery is very broad;

4) All participants must wear powdered wigs.

A prominent figure in the suite, even if not a named defendant, will be Bob Mirch, Troy's Department of Public Works Commissioner. Mr. Mirch had this to say about the suit:

Everywhere I go, people say, ‘You are absolutely right!’ The people are behind me 100 percent,” he said. “I am having a great time. I live for this!”- Metroland

We're not sure if Mr. Mirch "lives" for seeing the First Amendment violated or for law suits against the City. His "great time" will only cost us more money.

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