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We are not the enemy; borough, Press & Journal agree to settle lawsuit over advertisements: Editorial

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Many elected officials, from small-town mayors to presidents, are not fond of the media. Let’s face it, politicians criticizing the press is nothing new. Middletown is no exception.

Mayor James Curry III mocks and insults our newspaper on social media and has resolved to limit our access to the borough’s police department. Many borough council members refuse to respond to our reporter. By shutting our journalists out, these elected officials are responsible for shutting off Middletown taxpayers from crucial truths about their town.

Holding elected officials accountable for their words might give the impression that we are out to get them. It’s simply not true. However, letting questionable actions go unchallenged for the sake of favorable public relations goes against every respectable newspaper’s reason for existing.

Curry and the Middletown Borough Council punished the Press & Journal for articles and editorials they deemed “detrimental to the efforts and initiatives of the Borough” by withdrawing all their advertising dollars. On July 17, they issued an official Policy Letter signed by the mayor and six of seven council members (all but one of whom are still serving) stating the borough’s decision to terminate its placement of public notices in the Press & Journal was motivated by our reporting and/or editorializing. The letter stated the borough would resume its commercial relationship if our newspaper would “professionally and responsibly report” on matters of borough governance.

In short, the letter was evidence of an unapologetic retaliation aimed at speech protected by the First Amendment. Additionally, and perhaps just as alarming, council’s actions then and now demonstrate an unwillingness to subject the affairs of Middletown’s government to public scrutiny — something that is always in the public interest.

On receiving the letter from the borough, we knew it was time to stand up to the assault by Curry and the council on one of the key tenets of our democracy — a free press. On Oct. 23, the law firm of Mette, Evans & Woodside filed a federal civil rights lawsuit against the borough on our behalf. The suit asserted violations of the Press & Journal’s rights to free speech and free press under the First Amendment.

To be clear, we attempted to work toward a cooperative (zero-cost) solution with the borough well before our suit was filed. On Sept. 18, our attorney, Aaron Martin, appeared before council to read a letter requesting a retraction of the Policy Letter. Any hope of a reasonable solution was dashed when Curry childishly tore our letter into pieces and tossed it.

In the absence of meaningful communication from the borough, we took action.

Within days of filing our lawsuit, Council President Angela Lloyd issued a press release stating, “The global services offered by the Press and Journal do not meet the Borough’s needs.” She also charged our suit had “no merit in fact or law.” U.S. District Court Judge Christopher Conner disagreed, and the borough’s attempt to have our suit dismissed was denied.

Fast forward to March 19. The borough voted to agree to settlement terms negotiated over the past several months. Under the terms of our settlement, the borough was required to spell out their criteria for placement of advertising on bases that are “content-neutral and viewpoint-neutral consistent with the First Amendment of the United States Constitution.”

As a result, at the same meeting, council approved the adoption of Resolution #2019-10. The resolution publicly established the borough manager has the discretion to place public notices using the following criteria of services:

a) The availability of multiple weekly publications for the convenience of the borough and ability to satisfy timing requirements for submission.

b) The ability for public access, and ease of access to, previously published legal notices.

c) The general availability of the publication to residents and owners of property and business in the borough and interested parties from surrounding communities.

In their resolution, the borough briefly touched on budgetary considerations for placing notices not required by law. Those notices will be made “through the Borough’s social media outlets or other free services and platforms.” Interestingly, for notices that are legally required to be published in a newspaper, budgetary consideration is not part of the resolution. (It is worth noting that Middletown’s public notices are currently advertised in the Patriot-News at a cost significantly higher than in the Press & Journal.)

In the settlement agreement reached with the borough, the Press & Journal continues to assert the borough acted unconstitutionally in violation of its First Amendment rights and the borough continues to deny it. In the world of litigation, this is just how things work. Few litigants in civil suits publicly admit to guilt these days. Let’s be real. It’s settled out of court, chiefly to avoid expensive court costs and/or being held accountable for statements which could prove embarrassing under scrutiny.

We did not ask for damages in our lawsuit. However, the settlement requires Middletown to pay $22,000 to our law firm for legal costs.

Whether council and the mayor use this opportunity to move forward and temper their antagonistic attitude toward our newspaper remains to be seen. The court will retain jurisdiction to enforce the terms of the consent decree if the borough should violate its terms in the future.

In a broader perspective, our suit paved the way for other newspapers to protect their First Amendment rights. We’re proud of that. “Judge Conner’s decision will likely provide support to other media outlets facing retaliatory action by government for their reporting and editorializing,” Martin said regarding the court’s decision to deny the borough’s motion to dismiss our suit.

Our goal in negotiating a settlement with the borough has been to move forward for the betterment of the community. Meaningful dialogue would have been preferable. It’s unfortunate our only avenue for communication was through the borough’s well-paid attorneys.

We are not the borough council’s enemy. And we are not its PR firm.