Zherka v. Amicone

• Decision Date: 02 March 2011
• Docket Number: Docket No. 10–37–cv.
• Citation: 634 F.3d 642
• Parties: Selim ZHERKA, Plaintiff–Appellant,v.Philip AMICONE, in his Capacity as Mayor of the City of Yonkers, Defendant–Appellee.*
• Court: U.S. Court of Appeals — Second Circuit

634 F.3d 642

39 Media L. Rep. 1716

Selim ZHERKA, Plaintiff–Appellant,

v.Philip AMICONE, in his Capacity as Mayor of the City of Yonkers, Defendant–Appellee.*

Docket No. 10–37–cv.

United States Court of Appeals, Second Circuit.

Argued: Jan. 11, 2011.Decided: March 2, 2011.

Rory J. Bellantoni, Lovett & Bellantoni, LLP, Hawthorne, NY, for Plaintiff–Appellant.Brian T. Belowich, DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, NY, for Defendant–Appellee.Before: POOLER, WESLEY, and CHIN, Circuit Judges.WESLEY, Circuit Judge:

Under the law of this Circuit, the viability of a prima facie First Amendment retaliation claim depends on context. Private citizens alleging retaliation for their criticism of public officials must show that they engaged in protected speech, persons acting under color of state law took adverse action against them in retaliation for that speech, and the retaliation resulted in “actual chilling” of their exercise of their constitutional right to free speech. While in certain situations a showing of some other form of concrete harm may substitute for “actual chilling,” a state-law theory of per se defamation does not sufficiently demonstrate harm and therefore does not establish a federal retaliation claim. Accordingly, the district court's judgment is Affirmed.

I. BACKGROUND

Selim Zherka owns and publishes the Westchester Guardian, a weekly periodical covering Westchester County, which encompasses the City of Yonkers. In the fall of 2007, the Guardian was highly critical of the Mayor of Yonkers, Philip Amicone, accusing him and his administration of, inter alia, corruption, fiscal mismanagement, and police brutality.

Zherka alleges that in retaliation for his publications Amicone publicly defamed him at a campaign event.¹ Specifically, Zherka alleges that Amicone stated that Zherka is a “convicted drug dealer,” “Albanian mobster,” and “thug,” and that Zherka would, if Amicone lost his re-election bid, open “drug dens” and “strip clubs” throughout Yonkers and “loot” the “pension funds” of Yonkers residents and the city's own funds.

Shortly thereafter, Zherka sued Amicone, claiming Amicone violated his First Amendment rights, and that Amicone's alleged statements constitute per se defamation under New York common law.² Zherka alleged prospective chilling of his First Amendment rights; per se defamation; irreparable injury to professional reputation; emotional upset; anxiety; public humiliation; public shame; public embarrassment; and being otherwise rendered sick and sore. Zherka sought compensatory and punitive damages, as well as attorney's fees and costs.³

Amicone admitted that he was present at the meeting, but denied making the alleged statements. He raised multiple affirmative defenses, including failure to state a claim upon which relief could be granted, and no cognizable injury or damages. Amicone moved for judgment on the pleadings with an award of fees and costs.

Judge Seibel dismissed Zherka's First Amendment retaliation claim with prejudice, on the ground that per se defamation cannot constitute harm under this Court's standard for this type of claim. She declined to exercise supplemental jurisdiction over the remaining state-law defamation claim, dismissing it without prejudice. Zherka timely appealed to this Court, seeking reversal of the grant of judgment on the pleadings.

II. DISCUSSION⁴

“To state a claim under Section 1983, a plaintiff must allege facts indicating that some official action has caused the plaintiff to be deprived of his or her constitutional rights—in other words, there is an injury requirement to state the claim.” Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir.2002) (per curiam). Various forms of harm have been accepted as satisfying this injury requirement in the context of a claim that a public official has injured the plaintiff in retaliation for her exercise of her First Amendment rights.

“We have described the elements of a First Amendment retaliation claim in several ways, depending on the factual context.” Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008). For example, public employees must show adverse employment action. Id. For their part, inmates must show “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (internal quotation marks and citation omitted).

By contrast, private citizens claiming retaliation for their criticism of public officials have been required to show that they suffered an “actual chill” in their speech as a result. Id. (citing Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir.1992)). However, in limited contexts, other forms of harm have been accepted in place of this “actual chilling” requirement. See, e.g., Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir.2002) (alleging retaliatory revocation of building permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195 (2d Cir.1994) (alleging retaliatory failure to enforce zoning laws); see also Gill, 389 F.3d at 383 (explaining that “the Gagliardi plaintiffs' retaliation claim apparently survived a motion to dismiss because ... they adequately pleaded non-speech injuries”). Despite these limited exceptions, as a general matter, First Amendment retaliation plaintiffs must typically allege “actual chilling.”

In this case, Zherka does not allege actual chilling.⁵ Rather, he seeks to meet the injury requirement by asserting that defamation per se as recognized under New York law identifies a cognizable injury without the necessity of showing actual damage to his business or reputation. The district court disagreed and concluded that presumed damages under the New York law of per se defamation, unaccompanied by any allegations of particular injury, were not sufficiently tangible to serve as a substitute for “actual chilling.” We agree.

New York law has long recognized that “[w]hen statements fall within” established categories of per se defamation,⁶ “the law presumes that damages will result, and they need not be alleged or proven.” Liberman v. Gelstein, 80 N.Y.2d 429, 435, 590 N.Y.S.2d 857, 605 N.E.2d 344 (1992). Defamation law plays an important role, in that the state “has a pervasive and strong interest in preventing and redressing attacks upon reputation.” Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966).

But § 1983 has a quite different purpose: it “provide[s] a remedy when federal rights have been violated through the use or misuse of a power derived from a State.” Kletschka v. Driver, 411 F.2d 436, 448–49 (2d Cir.1969). To that end, a requirement that plaintiffs allege “actual chilling” ensures an identified injury to one's right to free speech is established. Hurt feelings or a bruised ego are not by themselves the stuff of constitutional tort. See, e.g., Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir.2004) (requiring a “state-imposed burden or alteration of status ... in addition to [a] stigmatizing statement”) (emphasis in original, internal quotation marks omitted).

Where chilling is not alleged, other forms of tangible harm will satisfy the injury requirement, since “standing is no issue whenever the plaintiff has clearly alleged a concrete harm independent of First Amendment chilling.” Gill, 389 F.3d at 383 (emphasis added). In our view, the presumed damages of defamation per se under New York law do not establish a concrete harm sufficient for a federal claim of First Amendment retaliation.

“The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Gertz recognized the tension between the state's interest in protecting a citizen's reputation on the one hand, and the “constitutional command of the First Amendment” on the other. Id. There, the question was whether the state's common law of defamation provided an action based upon constitutionally protected speech. The Supreme Court found that states were prohibited by the First Amendment from permitting recovery of presumed or punitive damages absent a showing of malice. Id.⁷

This case does not require us to measure the constitutional dimensions of a state's tort law. It simply asks: is the injury presumed by state law to arise from mere utterance of words solid enough ground on which to construct a federal constitutional tort claim? We have before us, in a sense, “speech against speech.” Zherka's publications are core protected speech under the First Amendment. Amicone's alleged retaliation did not come in the form of denial of a permit or threat of a lost contract. Rather, it was a group of statements—none very kind—about Zherka. Retaliatory insults or accusations may wound one's soul, but by themselves they fail to cross the threshold of measurable harm required to move government response to public complaint from the forum of free speech into federal court.⁸

Our holding today does not rule out the use of non- per se claims of defamation in § 1983 First Amendment retaliation claims. Where concrete harm is alleged and specified, the claim may proceed. Allegations of loss of business or some other tangible injury as a result of a defendant's statements would suffice to establish concrete harm. But the presumed injury of New York's theory of per se defamation is inadequate.

We need not decide if allegations of emotional and psychological harm would establish compensable injury in a First Amendment retaliation claim. ⁹ Zherka did allege both, but in a most cursory fashion. As pleaded, the allegations are insufficient to establish facial plausibility under the standard set by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In any event, Zherka's attorney...