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Federal judge finds Yonkers violated weekly newspaper's First Amendment rights
THE JOURNAL NEWS by Len Maniace - MARCH 3, 2008

In a decision sharply critical of the city, a federal judge ruled today that the city of Yonkers violated the First Amendment rights of a free weekly newspaper when it swept the Westchester Guardian's news racks from streets and stopped its employees from handing out the paper.

U.S. District Justice Charles L. Brieant found that the city singled out the Guardian and that the action was taken on the basis of the newspaper's content: a series of articles that were highly critical of Mayor Phil Amicone.

Brieant also ruled that the city unconstitutionally applied regulations governing "advertising and bill distribution" to the newspaper. "After 80 years of First Amendment case precedent, this Court would be astonished to find that Defendants do not believe that in-hand distribution of printed material on public City sidewalks is a Constitutionally protected activity," Brieant wrote.   Reach Len Maniace at lmaniace@lohud.com or 914-694-5163.

THIS STORY HAS BEEN UPDATED, SEE MARCH 4, 2008:

Judge: Yonkers' news rack sweep illegal
The Journal News by Len Maniace - March 4, 2008

In a decision sharply critical of the city of Yonkers, a federal judge ruled yesterday that the city violated the First Amendment rights of a free weekly newspaper when it swept the Westchester Guardian's news racks from city streets and stopped its employees from handing it out.

U.S. District Justice Charles L. Brieant found that the city singled out the Guardian and that the action was taken on the basis of the newspaper's content: a series of articles that were highly critical of Mayor Phil Amicone. Brieant also ruled that the city unconstitutionally applied regulations governing "advertising and bill distribution" to the newspaper.

"After 80 years of First Amendment case precedent, this Court would be astonished to find that Defendants do not believe that in-hand distribution of printed material on public City sidewalks is a Constitutionally protected activity," Brieant wrote in his 46-page ruling.

The ruling is the first in a series of lawsuits brought by the Guardian and its publisher, Sam Zherka, against Yonkers and its officials, including Amicone. While this case did not seek damages, the others seek more than $50 million in damages against the city. In yesterday's ruling, Brieant made permanent a preliminary injunction that stopped the city from interfering with the newspaper's distribution. He also awarded the Guardian "reasonable attorney fees."

"This is the first round of a nine-round fight. They've been knocked down once and we predict they are going to (get) knocked down and knocked out in every one of these rounds," said Zherka, whose Guardian was first published Aug. 10, 2006. Zherka is also a landlord who owns several thousand apartments, several shopping centers and an upscale topless bar in Manhattan called VIP. City Hall's top lawyer, Corporation Counsel Frank Rubino said the city would not appeal the decision.

"The city will continue its current practice of allowing the Westchester Guardian to distribute its publication in a manner consistent with the city code except for that part of the code found unconsitutional by the court," Rubino said.

As for the remaining cases, a class action lawsuit on behalf of the Guardian's readers, Rubino said: "I don't think they can prove or sustain any type of monetary injuries and I'm certainly not concerned that the city is going to have to weather some damages other than nominal damages."

Though the ruling is not binding on the other cases, Zherka's attorney, Jonathan Lovett, said the case has made it clear that the city cannot defend itself against the charge that its actions constituted a First Amendment violation, issues also raised in the other cases. "Even if we get $50 in damages per person that amounts to several million dollars," Lovett said.

Brieant wrote in his decision that the contention that the city's action was based on the newspaper's content was substantially buttressed by remarks made by Amicone spokesman David Simpson to The Journal News and Cablevision's News 12, including that the Guardian "is not a newspaper," but rather a "propaganda" outlet.

Brieant cited testimony by several police officers who said they had never previously issued summonses for distributing newspapers until July 2007 when they presented Guardian employees with tickets.

As for news racks, Brieant wrote that those belonging to the Guardian "were selectively removed while other news boxes of other papers in the same and similar locations were not affected."  (www.lohud.com)