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First Amendment Clinic Represents New York Newspaper in First Amendment Retaliation Suit
Headshot of Matthew Hornung
Pictured above: Matthew Hornung ’24.

Cornell Law School’s First Amendment Clinic has filed a lawsuit in U.S. District Court for the Northern District of New York against Delaware County on behalf of The Reporter, a newspaper in Delhi, New York. The suit claims that county officials violated the paper’s constitutional rights in de-designating it as an official paper and in issuing what has amounted to an illegal gag order for county employees.

Decker Advertising, which publishes The Reporter, alleges that in revoking The Reporter’s designation as the county’s newspaper of record in March 2022, county officials were retaliating for news coverage they didn’t like.

The dispute between The Reporter and the county is a good illustration of the political divisiveness that is playing out in communities across the country—and the impact it’s having on local news coverage, said Heather Murray, who led the legal team along with First Amendment Clinic Director Mark Jackson and co-counsel Michael Grygiel of Greenberg Traurig, LLP. The Local Journalism Project, a special initiative within the clinic, provides pro bono legal counsel for journalists in lawsuits and other matters.

“In recent years, newspapers have really come under attack,” Murray said. “It’s not just the loss of revenue that we’re concerned about here, but the attempt by government officials to improperly influence the coverage of an independent newspaper. That is really concerning because it strikes at the heart of democracy.”

New York State law requires each county government to publish legal notices in a print publication within the county. The Reporter had been an official paper of record for Delaware County practically since the paper’s founding in 1881. The legal notices provide a significant source of revenue for the paper, which, like many local news outlets, has seen advertising and subscription revenues plummet in recent decades.

Delaware County officials had expressed displeasure at the paper’s coverage of news stories on several occasions in recent years. The county withdrew its designation as a paper of record from The Reporter in March 2022 and moved that designation to a newspaper in Hancock, a neighboring town. A year later, The Reporter’s publishers, Kim and Randy Shepard, received a letter signed by thirty-nine county officials requesting they make changes to The Reporter’s coverage.

In that letter, officials wrote that the de-designation was due in part to a “flagrant manipulation of facts and the manner in which your paper reports county business.” The de-designation “should have prompted … an immediate change,” the officials wrote.

Counties are allowed to de-designate a newspaper and choose another one to run legal notices. What they’re not allowed to do is to punish a news outlet for its coverage, Murray said.

“By their own words, county officials demonstrated that their actions against The Reporter were clearly intended to punish the paper for coverage that they didn’t like. Retaliatory conduct like that clearly violates the First Amendment.”

That’s when the Shepards contacted the New York Press Association, hoping to find someone who could write an op-ed about freedom of the press. NYPA referred the Shepards to Murray, a former reporter herself, who told them: “Actually, I think we’d like to represent you. This is something worth fighting.”

“They didn’t realize there was this kind of pro bono help available,” Murray said. “It’s only really been the past several years that a number of foundations have stepped up to provide more funding for pro bono assistance like ours. That’s the reason we can do the work we do.”

After a story about the dispute appeared in the New York Times in June 2023, the county attorney issued a gag directive prohibiting county employees from speaking to the media on public matters.

Unlike routine preclearance measures, imposing a blanket restriction on county workers against speaking with the press on any topic of public concern violates employees’ First Amendment rights and would be legally unenforceable, Murray said.

The suit names Delaware County chair of the board of supervisors Tina Molé, sixteen of the nineteen other members of the county’s board of supervisors, and county attorney Amy Merklen.

The Local Journalism Project provides students and recent graduates with real-world experience in media law. Clinic alumna Yifei Yang ’23 and Matthew Hornung ’24 took the lead in drafting the complaint.

“I’m grateful to the law school’s First Amendment Clinic for the opportunity to work directly with these incredible journalists on constitutional litigation that will hopefully set a meaningful precedent for local newspapers across New York and the country,” Hornung said.

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