Puerto Rico's governor, aides not immune to daily's lawsuit p.8

By: Kelvin Childs El Nuevo D?a won a significant round in its civil rights suit against Puerto Rico's governor and seven top aides when a federal appeals court ruled that they may be sued for trying to punish the newspaper for its coverage by canceling $6 million in advertising contracts.
The U.S. 1st Circuit Court of Appeals denied Gov. Pedro Rossell?'s motion to dismiss. It agreed with a lower federal court that Rossell? and the others do not enjoy the qualified immunity that protects officials from being sued over routine actions done in the course of their public service.
"It would seem obvious that using government funds to punish political speech by members of the press and to attempt to coerce commentary favorable to the government would run afoul of the First Amendment," states the Jan. 25 ruling.
The case may now proceed on a fast track to a trial in May, says Bruce Sanford, a partner at Baker & Hostetler L.L.P., the Washington law firm representing El Nuevo D?a.
"It's really quite a strong legal weapon that can be used to keep government officials from retaliating or punishing the press for coverage they don't like," Sanford says. Without qualified immunity, the governor and his aides may be found personally as well as professionally liable if the newspaper wins.
"That's the stunning usefulness of this ruling," Sanford says.
The court also rejected the administration's claim that canceling the advertising was an exercise of free speech.
James Hibey, the lawyer representing Rossell?, says, "Basically, I can tell you we are disappointed with the court's ruling. We believe that a government advertiser can disassociate itself from a newspaper" without running afoul of the First Amendment. Hibey is with the Washington law firm of Verner, Liipfert, Bernhard, McPherson & Hand.
Hibey also says that in arguing a motion to dismiss, the defense cannot challenge the other side's presentation of the facts but can only argue that even if they're true, they aren't enough for a cause of action. He says the ruling didn't foreclose other defenses the administration intends to present. "Our defenses include other claims of absolute as well as qualified immunity," he says.
The 227,000-circulation El Nuevo D?a, owned by the Ferr? family, is the largest daily newspaper in Puerto Rico. It sued Rossell? and his aides for their actions following articles published April 13, 1997, evaluating the first 100 days of Rossell?'s second term and the first 100 days of the San Juan mayor's term. The articles followed a number of investigative pieces on government agencies, including the state-owned telephone company and the water resources authority.
The day after the 100-day analyses, 18 government agencies canceled advertising accounts with the paper worth $6 million a year. Within months, the Treasury Department launched a tax audit of the paper. The paper also asserts that its reporters were frozen out from sources and denied access to documents.
The administration also canceled a construction project of Puerto Rico Cement Co., a firm whose principal shareholders are the Ferr? family. El D?a Inc., the newspaper company, also is a shareholder. The administration pulled permits for other projects and investigated it for supposed violations of packaging laws.
Rossell? has asserted that the administration switched to other newspapers because of a pending rate increase at El Nuevo D?a. "These are decisions made from the point of view of which are the best and most cost-effective media vehicles for the government of Puerto Rico's duty to inform," he says. However, the rate increase had not been announced when the contracts were canceled, and the paper asserts that it still is the least expensive means of reaching a mass audience.
Also being sued by the paper are Angel Morey, Rossell?s chief of staff; Pedro Rosario Urdaz, press secretary; Norma Burgos, secretary of state; J.A. Alicea Rivera, secretary of the Department of Consumer Affairs; and three members of the commonwealth's Planning Board ? Jose Caballero, vice president; Jose Rios Davila, executive director; and Maria Gordillo, an alternate member.
The administration's actions have been condemned by the Inter American Press Association, the American Society of Newspaper Editors, and the Society of Professional Journalists.
?(Editor & Publisher Web Site: http:www.mediainfo.com) [caption]
?(copyright: Editor & Publisher February 6,) [caption]


No comments on this item Please log in to comment by clicking here