DELHI - In a 36-page decision issued by the Northern District Court, Judge Anne Nardacci denied a motion to dismiss a federal lawsuit brought by Decker Advertising, parent company of The Reporter, in a Constitutional violation lawsuit filed against the county, its supervisors and attorney, for alleged violations of the First and Fourteenth Amendments.
The lawsuit, filed on Dec. 4, 2023, alleges that Delaware County officials violated The Reporter’s constitutional rights by revoking its status as an official county newspaper in retaliation for its coverage of the county and county business. The designation provided critical revenue through government-funded legal notices.
The suit also challenges an alleged directive from County Attorney Amy Merklen that the complaint claims barred employees from communicating with The Reporter, claiming it infringed on the paper’s constitutional rights and the rights of county employees.
The Reporter, which had published the county’s legal notices since 1881, lost its designation in March 2022. A year later, county officials sent an unprecedented letter to the publisher, signed by 39 officials, demanding changes to the paper’s coverage.
Background as Set Forth in the Court’s Decision
On March 9, 2022, The Reporter published an article titled “Delhi Justice Removed From Criminal Cases,” detailing a local justice’s removal from criminal court duties following a complaint from an attorney. Six days later, on March 15, 2022, the county sent a letter to The Reporter claiming the article misidentified the governing body responsible for the justice’s removal, and requested a correction and raised concerns about the reporting. Delaware County further accused The Reporter’s editor of writing selectively researched, one-sided stories that exaggerated facts and undermined public confidence in county government. The county’s letter claimed the editor’s reporting was sensationalized and cast officials in a false light.
On the same day The Reporter received the letter, it issued a correction to the article in question. A week later, on March 23, 2022, the county revoked The Reporter’s designation as an official newspaper for publishing legal notices. Supervisors named in the lawsuit include: Tina Molé, Bovina, Arthur Merrill, Colchester, Mark Tuthill, Delhi, Thomas Axtell, Deposit, Jeffrey Taggart, Franklin, Wayne Marshfield, Hamden, Jerry Vernold, Hancock, James Eisel, Harpersfield, Betty Scott, Masonville, James Ellis, Meredith, Carl Patrick Davis, Middletown, Allen Hinkley, Roxbury, Eric Wilson, Sidney, John Kosier, Stamford, William Layton, Tompkins and Joseph Cetta, Walton. They all voted in favor of the revocation. Amy Merklen, county attorney, is also named as a defendant in the lawsuit. The county resolution to remove The Reporter’s designation as an official newspaper cited rising costs and delays in placing legal notices as reasons for the de-designation. However, according to allegations in the complaint, the following day, co-owners Randy and Kim Shepard asked Supervisors’ Chairperson Tina Molé about the decision, and Molé attributed it to The Reporter’s pricing, workload concerns, and its editor, Lillian Browne.
After receiving the letter, The Reporter’s publishers contacted several signatories and some cited specific articles as reasons for the letter, including coverage of the county drone program, the arrest of an 11-year-old for graffiti, and the potential creation of a county parks department.
The New York Times picked up the story of the de-designation. Five days after The New York Times published its story, Merklen allegedly issued a directive requiring county employees to refer all The Reporter’s inquiries to her office. On June 22, 2023, The Reporter’s editor contacted Public Defender Joseph Ermeti about a separate story regarding his office’s Facebook account and Ermeti stated he was instructed to refer all inquiries to the county attorney. When the editor followed up with Merklen, Merklen responded that, due to The Reporter’s legal representation and potential litigation against the county, all communication from The Reporter should go through its attorney to Merklen.
In its Feb. 24 decision, the district court determined that the complaint’s allegation that the directive from Merklen, “was imposed in retaliation for The Reporter’s apparent cooperation with The New York Times and the resulting coverage.”
Judge Anne Nardacci also ruled that the county de-designated The Reporter constituted, “an adverse action capable of sustaining a claim for retaliation in the public employment context.”
Nardacci further stated: “The complaint and its supporting materials can also be read to plausibly allege that the de-designation was retaliation not just for the article reporting on the criminal court, but instead, The Reporter’s general coverage of the county.”
The federal judge was unswayed by the county’s defense and argument that The Reporter had, “removed itself from eligibility” as an official newspaper citing County Law 214, writing: “The Court finds Defendants’ argument that the de-designation was motivated by The Reporter’s ineligibility under § 214, and not retaliation, to be unpersuasive.”
The decision continues, “Therefore, not only was The Reporter qualified for designation, but other mandatory considerations also suggest that it may have been favored for designation,” as an independent news organization with the largest circulation in Delaware County.
“The ruling underscores that blanket bans on government employees talking to journalists or demands that they not communicate with journalists unless they get pre-clearance from supervisors runs afoul of the First Amendment,” said Heather Murray, Associate Director of the Cornell Law School First Amendment Clinic. “Importantly, the court recognized that this improper censorship enables a governmental entity to ‘destroy the immediacy’ of a public employee’s comment, ‘and thus, in many cases, its newsworthiness.’”
“We are seeing a disturbing trend across the state whereby local governmental bodies seek to use their power over the public purse to impact news coverage,” said Cornell Clinic Director Mark Jackson. “This decision should be taken as a warning that doing so opens up officials to potential legal liability.”
“We are thrilled with the Court’s decision and remain committed to our mission as a government watchdog and to bringing greater transparency to Delaware County and protecting the right to report the truth without fear of government retaliation,” said Kim and Randy Shepard, co-owners of The Reporter.
Meanwhile, the lawsuit continues with an appearance scheduled in district court in Binghamton on Thursday, Feb. 27. At the appearance, the court will review whether the county has complied with its order to provide The Reporter with discovery, or evidence, requested by The Reporter April 17, 2024.
The Reporter is represented by Clinic Director Mark Jackson, Heather Murray, Michael J. Grygiel of Greenberg Traurig, LLP, with critical assistance from Clinic alumna through the Clinic’s Local Journalism Project. The Local Journalism Project provides legal assistance to news outlets, journalists, researchers and other newsgatherers in aid of their critical function of reporting and communicating important news and information to their communities. The Local Journalism Project also provides counsel on a range of issues crucial to the operation of community newsrooms.
* Excerpts from the Feb. 24, 2025 decision. Click here to read the complaint and the decision in their entirety.
