Our argument is simple: The mayor of Youngstown, Ohio, George McKelvey, doesn’t like what The Business Journal wrote about him personally or our coverage about how the city spent $1.5 million in federal funds. His response: He banned city employees from speaking with any of our reporters.
In a lawsuit brought before a U.S. District Court, our lawyers argued that the ban is based on nothing more than the mayor’s personal animus and constitutes retaliation against us for exercising our First Amendment rights. Such retaliation is illegal, the pleadings claimed, according to Section 1983 of the Civil Rights statute, enacted in 1871, that prohibits governmental entities from depriving citizens of their constitutional rights.
This situation began in August 2001 when our newspaper, a locally owned publication with a circulation of 10,000, criticized the mayor for calling 911 to report a possible “sniper” hiding on “a grassy knoll.” Multiple sources confirmed for us that when the mayor called the city’s emergency dispatch center he knew the “suspicious character” was, in fact, a political activist armed with a pair of opera glasses, who was hiding near a closed-to-the-public restaurant, where the mayor was attending a private luncheon.
The activist, also the host of a weekly radio show, was jotting down license plates as the mayor and other guests arrived. A few dozen local officeholders, bureaucrats, judges and business leaders were attending the weekly gathering of the Cafaro Round Table (so named for the politically powerful family who had hosted similar luncheons for more than 40 years). Outsiders long suspected that important who-gets-what political decisions are made at the Cafaro luncheons, which is why the activist had taken it upon himself to compile a roster of participants.
That day the mayor made two 911 calls—the second call just five minutes after the first. He also wrote an incident report, included in the official police record, stating the person he saw hiding “was in the prone position, holding a large black and shiny object in his hands (possibly a gun), pointing said object directly at the lounge window of the restaurant.” (This word emphasis is present in the original filing.) And he later described his actions as those of a “prudent public official.” On a local talk-radio show, he explained how he feared for his safety and told the same story to newspaper and TV reporters.
Our news organization was the only one to spoof McKelvey’s account in a political cartoon and to question its veracity in an editorial, in which we opined the activist’s “opera glasses, pen and paper posed more of a threat than had they been an Italian carbine with a telescopic sight like the one Lee Harvey Oswald fired (but not from the grassy knoll).”
The Mayor Responds
The mayor was furious. “Your editorial mission was to attack the integrity of the mayor of Youngstown,” McKelvey wrote in a letter, which we published in its entirety. “[But] the victims of your Journal Opinion were the truth and your journalistic integrity …. May your journalistic integrity rest in peace.” (Italicized words were emphasized in his letter.)
Our coverage of this incident was the first instance McKelvey cited in an affidavit provided to the federal court, in which he explained how he determined our newspaper is “untrustworthy” and “irresponsible” when he banned city employees from speaking with our reporters. Much of the city’s defense against our First Amendment claim is, in fact, based on a 2004 federal court decision (Raycom National Inc. v. Jane Campbell) in which the mayor of Cleveland was found acting within the law when she determined that reporters from WOIO-TV were “untrustworthy” and “irresponsible,” and banned them from city hall.
In response to McKelvey’s affidavit, The Business Journal provided the court with an affidavit from a retired president of the Ohio Senate, Harry Meshel. He swore that he was with McKelvey when they recognized the man spying on the Cafaro Round Table “and confirmed for ourselves that he was not brandishing a gun. Mayor McKelvey clearly knew that there was no sniper but made a call to 911 anyway,” according to his affidavit. “At no point did Mayor McKelvey express any security concerns, and I specifically tried to dissuade Mayor McKelvey from making a public issue of the incident.” The city’s lawyers ignored Meshel’s affidavit in their reply brief to support their motion to dismiss our First Amendment complaint, although they continued to cite the Cleveland precedent.
McKelvey copied certain phrases from the Raycom decision in his February 2005 letter notifying us of his ban on city employees speaking to our paper. That letter arrived within days of The Business Journal’s reporting that the city was using federal funds to defend a lawsuit we filed against it on October 31, 2003. And that lawsuit claimed that city officials improperly withheld public records related to land it had purchased for a federally funded project.
In February 2003, we’d begun publishing a series of articles that questioned why the city had spent $1.5 million to buy former steel-mill land for this project without an appraisal of its value. This was a parcel of land that the previous administration had refused to buy for environmental reasons, when it had been repeatedly approached by a political operative who is now in prison for bribing judges.
In December 2004, a magistrate for Mahoning County Common Pleas Court found the city had withheld public records and awarded The Business Journal its legal fees (the only remedy provided by Ohio law when officials do not comply with public records’ requests). A judge overturned the magistrate’s decision on March 17, 2005, and the newspaper has appealed to the Seventh Circuit Court of Appeals.
In the case our paper filed against the mayor, in May, U.S. District Court Judge Peter C. Economus refused The Business Journal’s request that a preliminary injunction be ordered against the mayor, and he dismissed the case. Economus explained his decision by finding that the Journal is “not likely to succeed on the merits” of its claim of First Amendment protection.
Andrea Wood is the cofounder, publisher and editor of The Business Journal, a bimonthly local publication in Youngstown, Ohio.