Selim Zherka v. Philip Amicone

Under the law of this Circuit, the viability of a prima

16 facie First Amendment retaliation claim depends on context.

17 Private citizens alleging retaliation for their criticism of

18 public officials must show that they engaged in protected

19 speech, persons acting under color of state law took adverse

20 action against them in retaliation for that speech, and the

21 retaliation resulted in "actual chilling” of their exercise

22 of their constitutional right to free speech. While in

23 certain situations a showing of some other form of concrete

24 harm may substitute for "actual chilling,” a state-law

25 theory of per se defamation does not sufficiently

26 demonstrate harm and therefore does not establish a federal

27 retaliation claim. Accordingly, the district court's

28 judgment is AFFIRMED.

1It is arguable that Amicone was not speaking in his official capacity

when he made the alleged statements, but we assume for purposes of analysis

that he was.

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1 I. BACKGROUND

2

3 Selim Zherka owns and publishes the Westchester

4 Guardian, a weekly periodical covering Westchester County,

5 which encompasses the City of Yonkers. In the fall of 2007,

6 the Guardian was highly critical of the Mayor of Yonkers,

7 Philip Amicone, accusing him and his administration of,

8 inter alia, corruption, fiscal mismanagement, and police

9 brutality.

10 Zherka alleges that in retaliation for his publications

11 Amicone publicly defamed him at a campaign event.1

12 Specifically, Zherka alleges that Amicone stated that Zherka

13 is a "convicted drug dealer,” "Albanian mobster,” and

14 "thug,” and that Zherka would, if Amicone lost his re15

election bid, open "drug dens” and "strip clubs” throughout

16 Yonkers and "loot” the "pension funds” of Yonkers residents

17 and the city's own funds.

18 Shortly thereafter, Zherka sued Amicone, claiming

19 Amicone violated his First Amendment rights, and that

20 Amicone's alleged statements constitute per se defamation

2Zherka also alleged a violation of his right to travel under the

Fourteenth Amendment. He wisely withdrew this claim prior to the judgment

below.

3Only costs were sought on the state-law claim. Attorneys' fees and

costs were sought on the two federal claims, pursuant to 42 U.S.C. § 1988(b)

(allowing for discretionary awards of "a reasonable attorney's fee” to

prevailing parties other than the United States in suits brought under § 1983

and other civil rights statutes).

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1 under New York common law.2 Zherka alleged prospective

2 chilling of his First Amendment rights; per se defamation;

3 irreparable injury to professional reputation; emotional

4 upset; anxiety; public humiliation; public shame; public

5 embarrassment; and being otherwise rendered sick and sore.

6 Zherka sought compensatory and punitive damages, as well as

7 attorney's fees and costs.3

8 Amicone admitted that he was present at the meeting,

9 but denied making the alleged statements. He raised

10 multiple affirmative defenses, including failure to state a

11 claim upon which relief could be granted, and no cognizable

12 injury or damages. Amicone moved for judgment on the

13 pleadings with an award of fees and costs.

14 Judge Seibel dismissed Zherka's First Amendment

15 retaliation claim with prejudice, on the ground that per se

16 defamation cannot constitute harm under this Court's

17 standard for this type of claim. She declined to exercise

18 supplemental jurisdiction over the remaining state-law

4We review de novo the grant of a motion for judgment on the pleadings.

See, e.g., Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). In this

review, we accept all factual allegations in the complaint as true and draw

all reasonable inferences in the plaintiff's favor. Id.

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1 defamation claim, dismissing it without prejudice. Zherka

2 timely appealed to this Court, seeking reversal of the grant

3 of judgment on the pleadings.

4

5 II. DISCUSSION4

6

7 "To state a claim under Section 1983, a plaintiff must

8 allege facts indicating that some official action has caused

9 the plaintiff to be deprived of his or her constitutional

10 rights – in other words, there is an injury requirement to

11 state the claim.” Colombo v. O'Connell, 310 F.3d 115, 117

12 (2d Cir. 2002) (per curiam). Various forms of harm have

13 been accepted as satisfying this injury requirement in the

14 context of a claim that a public official has injured the

15 plaintiff in retaliation for her exercise of her First

16 Amendment rights.

17 "We have described the elements of a First Amendment

18 retaliation claim in several ways, depending on the factual

19 context.” Williams v. Town of Greenburgh, 535 F.3d 71, 76

20 (2d Cir. 2008). For example, public employees must show

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1 adverse employment action. Id. For their part, inmates

2 must show "retaliatory conduct that would deter a similarly

3 situated individual of ordinary firmness from exercising . .

4 . constitutional rights.” Gill v. Pidlypchak, 389 F.3d 379,

5 381 (2d Cir. 2004) (internal quotation marks and citation

6 omitted).

7 By contrast, private citizens claiming retaliation for

8 their criticism of public officials have been required to

9 show that they suffered an "actual chill” in their speech as

10 a result. Id. (citing Spear v. Town of W. Hartford, 954

11 F.2d 63, 68 (2d Cir. 1992)). However, in limited contexts,

12 other forms of harm have been accepted in place of this

13 "actual chilling” requirement. See, e.g., Dougherty v. Town

14 of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d

15 Cir. 2002) (alleging retaliatory revocation of building

16 permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195 (2d

17 Cir. 1994) (alleging retaliatory failure to enforce zoning

18 laws); see also Gill, 389 F.3d at 383 (explaining that "the

19 Gagliardi plaintiffs' retaliation claim apparently survived

20 a motion to dismiss because . . . they adequately pleaded

21 non-speech injuries”). Despite these limited exceptions, as

22 a general matter, First Amendment retaliation plaintiffs

5Indeed, it would be difficult for him to do so. After the alleged

defamatory statements, the Guardian continued to publish articles critical of

Amicone, with headlines (quoted by the defense in its motion for judgment on

the pleadings and not contested in Zherka's memo of opposition) such as "Mayor

Amicone Stumbles Over the First Amendment,” "Dumb, Dumber and Dumbest,” and

"Scrooge Amicone – Rapes Taxpayers; Rewards Cronies.” Far from chilling

Zherka's speech, Amicone's alleged statements seem rather to have inflamed it.

6There are "four established exceptions [to the requirement that

plaintiff allege special damages] consist[ing] of statements (i) charging

plaintiff with a serious crime; (ii) that tend to injure another in his or her

trade, business or profession; (iii) that plaintiff has a loathsome disease;

or (iv) imputing unchastity to a woman.” Liberman v. Gelstein, 80 N.Y.2d 429,

435 (1992) (citations omitted). This final category is codified: "In an

action of slander of a woman imputing unchastity to her, it is not necessary

to allege or prove special damages.” N.Y. Civ. Rights Law § 77 (McKinney

2009). The other three categories are uncodified. See generally 2 Ernest P.

Seelman, The Law of Libel and Slander in the State of New York 869-75; see

also Restatement (Second) of Torts §§ 570-74 (1977).

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1 must typically allege "actual chilling.”

2 In this case, Zherka does not allege actual chilling.5

3 Rather, he seeks to meet the injury requirement by asserting

4 that defamation per se as recognized under New York law

5 identifies a cognizable injury without the necessity of

6 showing actual damage to his business or reputation. The

7 district court disagreed and concluded that presumed damages

8 under the New York law of per se defamation, unaccompanied

9 by any allegations of particular injury, were not

10 sufficiently tangible to serve as a substitute for "actual

11 chilling.” We agree.

12 New York law has long recognized that "[w]hen

13 statements fall within” established categories of per se

14 defamation,6 "the law presumes that damages will result, and

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1 they need not be alleged or proven.” Liberman v. Gelstein,

2 80 N.Y.2d 429, 435 (1992). Defamation law plays an

3 important role, in that the state "has a pervasive and

4 strong interest in preventing and redressing attacks upon

5 reputation.” Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).

6 But § 1983 has a quite different purpose: it

7 "provide[s] a remedy when federal rights have been violated

8 through the use or misuse of a power derived from a State.”

9 Kletschka v. Driver, 411 F.2d 436, 448-49 (2d Cir. 1969).

10 To that end, a requirement that plaintiffs allege "actual

11 chilling” ensures an identified injury to one's right to

12 free speech is established. Hurt feelings or a bruised ego

13 are not by themselves the stuff of constitutional tort.

14 See, e.g., Sadallah v. City of Utica, 383 F.3d 34, 38 (2d

15 Cir. 2004) (requiring a "state-imposed burden or alteration

16 of status . . . in addition to [a] stigmatizing statement”)

17 (emphasis in original, internal quotation marks omitted).

18 Where chilling is not alleged, other forms of tangible

19 harm will satisfy the injury requirement, since "standing is

20 no issue whenever the plaintiff has clearly alleged a

21 concrete harm independent of First Amendment chilling.”

22 Gill, 389 F.3d at 383 (emphasis added). In our view, the

7"The constitutionality of the common law rule that nominal damages may

be recovered for a defamatory communication that is actionable per se, even in

the absence of proof of harm to reputation, is now somewhat uncertain.”

Restatement (Second) of Torts § 569 cmt. c (1977).

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1 presumed damages of defamation per se under New York law do

2 not establish a concrete harm sufficient for a federal claim

3 of First Amendment retaliation.

4 "The common law of defamation is an oddity of tort law,

5 for it allows recovery of purportedly compensatory damages

6 without evidence of actual loss.” Gertz v. Robert Welch,

7 Inc., 418 U.S. 323, 349 (1974). Gertz recognized the

8 tension between the state's interest in protecting a

9 citizen's reputation on the one hand, and the

10 "constitutional command of the First Amendment” on the

11 other. Id. There, the question was whether the state's

12 common law of defamation provided an action based upon

13 constitutionally protected speech. The Supreme Court found

14 that states were prohibited by the First Amendment from

15 permitting recovery of presumed or punitive damages absent a

16 showing of malice. Id.7

17 This case does not require us to measure the

18 constitutional dimensions of a state's tort law. It simply

19 asks: is the injury presumed by state law to arise from mere

20 utterance of words solid enough ground on which to construct

8Some other appellate courts have rejected similar attempts to use

allegedly defamatory statements, without a showing of harm, as a basis to

claim First Amendment retaliation. While our sister circuits apply a

different standard, inquiring in all cases whether a person of "ordinary

firmness” would have been deterred by the alleged retaliation, even under this

standard allowing for a broader range of actionable conduct they have

consistently rejected claims like Zherka's. This similarity of outcome

confirms our sense that per se defamation is insufficient to establish a

constitutional tort. See, e.g., Zutz v. Nelson, 601 F.3d 842, 849 (8th Cir.

2010); Mezibov v. Allen, 411 F.3d 712, 722 (6th Cir. 2005).

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1 a federal constitutional tort claim? We have before us, in

2 a sense, "speech against speech.” Zherka's publications are

3 core protected speech under the First Amendment. Amicone's

4 alleged retaliation did not come in the form of denial of a

5 permit or threat of a lost contract. Rather, it was a group

6 of statements – none very kind – about Zherka. Retaliatory

7 insults or accusations may wound one's soul, but by

8 themselves they fail to cross the threshold of measurable

9 harm required to move government response to public

10 complaint from the forum of free speech into federal court.8

11 Our holding today does not rule out the use of non-per

12 se claims of defamation in § 1983 First Amendment

13 retaliation claims. Where concrete harm is alleged and

14 specified, the claim may proceed. Allegations of loss of

15 business or some other tangible injury as a result of a

16 defendant's statements would suffice to establish concrete

17 harm. But the presumed injury of New York's theory of per

18 se defamation is inadequate.

9Our sister circuits have explicitly left this possibility open as a

result of their reliance on the "person of ordinary firmness” standard in all

types of First Amendment retaliation cases. See, e.g., Mattox v. City of

Forest Park, 183 F.3d 515, 521 (6th Cir. 1999) ("We recognize that in some

cases 'injury based on embarrassment, humiliation, and emotional distress' is

sufficient to be actionable under § 1983.” (quoting Bloch v. Ribar, 156 F.3d

673, 679-80 (6th Cir. 1998))). By contrast, our requirement of actual

chilling or concrete harm in this particular type of retaliation case demands

more than the test applied by our sister circuits.

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1 We need not decide if allegations of emotional and

2 psychological harm would establish compensable injury in a

3 First Amendment retaliation claim.9 Zherka did allege both,

4 but in a most cursory fashion. As pleaded, the allegations

5 are insufficient to establish facial plausibility under the

6 standard set by Bell Atlantic Corp. v. Twombly, 550 U.S.

7 544, 556 (2007). In any event, Zherka's attorney affirmed,

8 in response to a direct question from Judge Seibel, that per

9 se defamation was the only harm alleged.

10 The arena of political discourse can at times be rough

11 and tough. Public officials must expect that their

12 decisions will be subjected to withering scrutiny from the

13 populace. A public official's response to that criticism is

14 subject to limits, but the injury inflicted by that response

15 must be real. Without that limitation, the Constitution

16 would change from the guarantor of free speech to the

17 silencer of public debate.



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See: http://www.ca2.uscourts.gov/decisions/isysquery/c112c29b-e9a7-4ea3-ab4d-dc60a49a88e7/14/doc/10-37_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c112c29b-e9a7-4ea3-ab4d-dc60a49a88e7/14/hilite/

The district court’s judgment of December 22, 2009

dismissing with prejudice Plaintiff-Appellant’s First

Amendment retaliation claim is hereby AFFIRMED.