SYRACUSE — A federal judge has ruled that a First Amendment lawsuit between Decker Advertising Inc. and Delaware County will proceed toward trial after finding that key factual disputes must be decided by a jury.
In a 31-page memorandum-decision and order filed July 21, U.S. District Judge Anne M. Nardacci denied competing motions for partial summary judgment filed by Decker Advertising and the county, concluding that a jury must determine whether county officials unlawfully retaliated against The Reporter because of its coverage of county government.
The lawsuit, Decker Advertising Inc. v. Delaware County et al., was filed in December 2023 by Decker Advertising Inc., the parent company of The Reporter, a print and digital newspaper based in Delaware County. The complaint alleges county officials violated the First Amendment by retaliating against the newspaper after it published articles critical of county government.
The dispute centers on two county actions: the Delaware County Board of Supervisors’ March 2022 decision to remove The Reporter from its longstanding designation as an official newspaper for legal notices and designate The Hancock Herald instead, and a May 2023 directive instructing county department heads to refer media inquiries exclusively to the county attorney and public information officer.
The parties have offered sharply different explanations for those actions.
County officials contend the decision to change official newspapers was based on increased legal-notice publication costs and additional administrative work associated with a new automated placement system. They also argue the media directive was implemented because litigation was anticipated and applied generally to communications with the press.
Decker Advertising alleges both actions were retaliatory and were intended to punish the The Reporter for its reporting while interfering with its ability to gather news.
Court filings also include a March 2023 letter signed by numerous county officials citing what it described as “inflammatory” reporting and “the manner in which your paper reports county business” in explaining the decision to remove The Reporter as an official newspaper.
The dispute drew national attention in June 2023 when The New York Times published an article examining Delaware County’s decision and broader concerns about the use of government advertising and access to public information to influence local news organizations.
In her decision, Nardacci noted evidence indicating county officials learned in May 2023 that The New York Times was preparing its article. During that period, County Attorney Amy Merklen directed county department heads to refer media inquiries to her office or the county’s public information officer rather than responding directly.
Heather Murray, an attorney with the First Amendment Clinic at Cornell Law School, which represents Decker Advertising along with Foley Hoag LLP, said plaintiffs were pleased the case will proceed to trial.
“We are pleased with the decision and look forward to bringing this case to trial to defend the right of The Reporter — and every news outlet — to report critically on government officials,” Murray said. “Importantly, the Court also found that The Reporter is eligible to recover punitive damages in the event a jury determines that the evidence presented of County officials’ retaliation violated the First Amendment.”
The ruling allows Decker Advertising’s claims alleging First Amendment retaliation and unlawful restrictions on newsgathering to proceed. The judge also declined to dismiss the plaintiff’s request for punitive damages against the individual defendants.
Punitive damages differ from compensatory damages because they are intended to punish conduct found to be malicious or in reckless disregard of federally protected rights. A jury could consider awarding punitive damages only if it first determines that an individual defendant violated the plaintiff’s constitutional rights and that the higher legal standard for such damages has been met.
The defendants are Delaware County; Amy Merklen; Tina Molé; Arthur Merrill; Mark Tuthill; Thomas Axtell; Jeffrey Taggart; Wayne Marshfield; Jerry Vernold; James E. Eisel Sr.; George Haynes Jr.; Betty Scott; James Ellis; Carl Patrick Davis; Allen Hinkley; Eric Wilson; John Kosier; William Layton; and Joseph Cetta.
The Reporter sought comment from defense counsel at Hancock Estabrook LLP, Merklen, Public Information Officer Shelly Johnson-Bennett and Molé. None had responded by press time.
The case will proceed to trial in the U.S. District Court for the Northern District of New York unless a settlement is reached.
To read the judge's decision click here.
