Press & Journal, Inc. v. Borough of Middletown
| Decision Date | 13 December 2018 |
| Docket Number | CIVIL ACTION NO. 1:18-CV-2064 |
| Citation | 358 F.Supp.3d 411 |
| Parties | PRESS AND JOURNAL, INC., Plaintiff v. BOROUGH OF MIDDLETOWN, Defendant |
| Court | U.S. District Court — Middle District of Pennsylvania |
Aaron D. Martin, Michael D. Reed, Veronica L. Boyer, Mette Evans and Woodside, Harrisburg, PA, for Plaintiff.
Kevin M. Skjoldal, Mark S. Stewart, Eckert Seamans Cherin & Mellott LLC, Harrisburg, PA, for Defendant.
Plaintiff Press and Journal, Inc. ("plaintiff") filed this action alleging First Amendment violations by defendant Borough of Middletown (the "Borough"). The Borough moved to dismiss plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b). (Doc. 12). We will deny the Borough's motion to the extent it is grounded in Rule 12(b)(6).
Plaintiff is an independent member of the private press that publishes the Middletown Press & Journal (the "Journal"), a newspaper of general circulation in Dauphin County, Pennsylvania. (Doc. 1 ¶¶ 1, 11). According to plaintiff, for over 100 years the Borough has advertised in the Journal, placing notices for meetings of Borough council and the local zoning hearing board, advertisements for public events like hydrant flushing and leaf collection, and "other notices required by law to be published in a newspaper of general circulation." (Id. ¶¶ 8-9, 13). In the ten-year period from June 2008 to May 2018, the Borough allegedly ran 207 such legal advertisements in the Journal. (Id. ¶ 12).
The Borough "abruptly" ended all advertising with the Journal in June 2018. (Id. ¶ 14). When plaintiff inquired why the Borough was no longer advertising in the Journal, the Borough responded with a letter, signed by the mayor and six of the Borough's seven council members, dated July 17, 2018 (the "July 2018 Letter"). (Id. ¶¶ 15-16, 23). The July 2018 Letter provided the following explanation for the Borough ending its advertising relationship with plaintiff:
This decision was arrived at through discussion of a number topics that we feel have been detrimental to the efforts and initiatives of the Borough, including articles and editorials published in the Press and Journal over the past year. The topics covered include the Elks Theater, National Night Out, Police discipline, local campaign coverage and the Press and Journal's attempts to help finance select campaigns, Borough ordinances affecting student housing, and the Borough's litigation against Suez and McNees, Wallace & Nurick. Through these disheartening and demoralizing instances of distasteful sensationalism, misrepresentation of information and statements, unfounded speculation, questionable sourcing and observable bias, we feel that the Press and Journal is not entirely committed to presenting the news of our community with an acceptable amount of impartiality or accuracy of facts.
(Doc. 1-2). The letter further stated that "[s]hould the Press and Journal demonstrate reliability to professionally and responsibly report on actions and statements of Borough Council and Management, as well critiquing us from a founded and balanced position, we will be happy to patron your newspaper again."1 (Id. )
Before commencing litigation, plaintiff's legal representative attended a public Borough council meeting in September 2018. (Doc. 1 ¶ 34). At that meeting, plaintiff's attorney read from a letter addressed to the mayor and council members indicating that plaintiff believed the Borough's actions were unconstitutional infringements of its First Amendment rights. (Id. ¶ 35). The letter requested that the Borough "correct the unconstitutional action" it had taken and "enter into talks to remediate the [Borough's] wrongdoing." (Doc. 1-3 at 3). Plaintiff's attorney then provided the mayor and all council members present with a copy of the letter, which the mayor purportedly "ripped ... in half and threw the pieces on the Council table." (Doc. 1 ¶¶ 37-38).
The following month, plaintiff filed the instant lawsuit seeking injunctive relief under 42 U.S.C. § 1983. Plaintiff accuses the Borough of the following violations of the First Amendment to the United States Constitution: viewpoint discrimination in contravention of the right to free speech and free press (Count I); content discrimination in violation of the right to free speech and free press (Count II); and violation of the right to freedom of association (Count III). The Borough moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b), claiming lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Due to outstanding factual issues underlying the Rule 12(b)(1) challenge, the court instructed the parties to complete their briefing only with respect to the Rule 12(b)(6) matter, which is now ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002) ). In addition to reviewing the facts contained in the complaint, the court may also consider "exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents" attached to a defendant's motion to dismiss if the plaintiff's claims are based upon these documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) ).
Federal notice and pleading rules require the complaint to provide "the defendant fair notice of what the ... claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). To test the sufficiency of the complaint, the court conducts a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, "the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’ " Id. at 130 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Next, the factual and legal elements of a claim must be separated; well-pleaded facts are accepted as true, while mere legal conclusions may be disregarded. Id. at 131-32 ; see Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual allegations, it must determine whether they are sufficient to show a "plausible claim for relief." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ); Twombly, 550 U.S. at 556, 127 S.Ct. 1955. A claim is facially plausible when the plaintiff pleads facts "that allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
Section 1983 of Title 42 of the United States Code creates a private cause of action to redress constitutional wrongs committed by state officials. 42 U.S.C. § 1983. The statute is not a source of substantive rights, but serves as a mechanism for vindicating rights otherwise protected by federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) ; Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a Section 1983 claim, plaintiffs must prove a deprivation of a "right secured by the Constitution and the laws of the United States ... by a person acting under color of state law." Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995) ).
Pursuant to Section 1983, plaintiff seeks to enjoin permanently certain actions that it claims amount to unconstitutional infringements of its First Amendment rights to free speech, free press, and freedom of association. The Borough's only challenge under Rule 12(b)(6) is that plaintiff—an independent contractor—lacks the requisite "pre-existing commercial relationship" necessary to maintain a First Amendment claim against the Borough.
Independent contractors who provide services to governmental entities enjoy certain protections under the First Amendment. O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 725, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996) ; Board of Cty. Comm'rs v. Umbehr, 518 U.S. 668, 673, 684-85, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). The extent of those protections, however, is limited. In Umbehr, the Supreme Court examined whether "the First Amendment protects independent contractors from the termination [or non-renewal] of at-will government contracts in retaliation for their exercise of freedom of speech." Umbehr, 518 U.S. at 671, 116 S.Ct. 2342. The Court held that such protection exists but cabined its holding to independent contractors with a "pre-existing commercial relationship with the government[.]" Id. at 685-86, 116 S.Ct. 2342. The Umbehr Court expressly left open the question of whether contractors who were merely "bidders or applicants for new government contracts" and thus unable to rely on a preexisting relationship can similarly avail themselves of the First Amendment's safeguards. Id. at 685, 116 S.Ct. 2342.
In a related case decided the same day as Umbehr, the Supreme Court considered whether First Amendment rights held by government employees also applied to an "independent contractor, who, in retaliation for refusing to comply with demands for political support, ... is...
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