Thursday, October 4, 2007

The Court Report
By Richard Blassberg

Phil Amicone & Company Discover The First Amendment
United States District Court, White Plains
Judge Charles L. Brieant Presiding


Friday, September 21 Yonkers Mayor Phil Amicone and his regime were jarred from their delusions with respect to the First Amendment to the Constitution, specifically its crystal-clear language with regard to Freedom Of The Press. Apparently Mr. Amicone and his cohorts in city government had been laboring under the false
impression that in this post-9/11 atmosphere of warrantless wiretaps, searches, and seizures, our fundamental Constitutional protections had been watered down to where government, including Yonkers’ Mayor and City Government, could, if they didn’t like what a newspaper was saying about them, simply confiscate and destroy that newspaper’s distribution boxes, and arrest those employed in its distribution.

The hearing before Judge Charles L Brieant, opened with a statement from Attorney for The Westchester Guardian, and numerous aggrieved Yonkers readers of the newspaper, Jonathan Lovett, who declared, “Your Honor, this case is one of nine cases we have filed against the City of Yonkers’ orchestrated theft and destruction of our newsracks. They believe they can suppress a news publication under Section 100-35 of
the City Ordinance. We challenge that provision.”

Attorney Kevin Plunkett, representing Amicone and the City Administration, broke in at that point, citing the “MTA Decision by Judge Knapp, in 1969, involving The Westchester/Rockland Newspapers.”

Mr. Lovett countered, “We are simply asking for a Preliminary Injunction, Your Honor. This is not just a newsrack issue. It is content-based.”

Mr. Plunkett came back with, “The City of Yonkers amended the ordinance to comply, under Section 33 of the
Code.”

Judge Brieant, turning to Plunkett, then declared, “We have a lawsuit here; that’s the problem. I don’t see how you cannot tolerate the racks. Other papers have racks.”

Mr. Plunkett then read the applicable section of the City Ordinance, making pointed references to locations from which Westchester Guardian newsracks had been removed, attempting to justify those removals under the ordinance.

Following that recitation, Brieant asked, “Are there any other newsracks of other publications also there?” He went on, “I have a very strong supportive view as regards First Amendment Rights. I am going to set a schedule for pretrial discovery.”

Attorney Plunkett broke in with, “This paper has created issues.”

Judge Briant now announced in a firm tone, “When I see an opportunity to have a First Amendment issue, that’s what I’m here for.” At the Judge’s urging Mr. Plunkett and his associate retired into conference with Mr. Lovett in an attempt to draw up a stipulation satisfactory to both sides. Following 25 minutes of closed-door negotiation,
Lovett emerged with a proposal from the City that would have banned distribution of The Guardian on the streets of Yonkers, totally unacceptable to the publisher.

Brieant, upon learning of their failure to reach an accord, sent the attorneys back into conference. However they soon re-emerged, Mr. Lovett announcing, “We were not able to reach any agreement, Your Honor.” Mr. Plunkett, quickly countered with, “We came close. We were trying to resolve matters going forward as Your Honor suggested.”

The Judge then advised the attorneys, “I’d rather call you in for a hearing. Go back in there, (referring to the conference room adjacent to the courtroom,) and I’ll join you as soon as I can.” The Judge had been handling numerous other calendar items while Plunkett and Lovett had been in conference for a total of more than half an hour. Upon clearing out all of the other items Brieant left the bench and entered the conference room, remaining for nearly 15 minutes, in an attempt to mediate a temporary agreement.

Returning to the courtroom with the attorneys, Brieant permitted each side to make a statement for the record, whereupon the Judge added, “The Court has reviewed this matter.

The Court orders a Temporary Restraining Order. The Plaintiff may install racks anywhere in the City. This is temporary relief only with the public’s interest in mind. The Plaintiff’s publication will enjoy the same privileges as any other newspaper at City Hall. The City Administration will advise employees that they are not to destroy any of the newsracks. Distribution on sidewalks is to be allowed but not in traffic on the street.” Judge Brieant set November 12th at 9:00am as the trial date.

Analysis:

Judge Charles L. Brieant, appointed to the Federal Bench by former Republican President Richard M. Nixon thirty-six years ago, left no doubt in anyone’s mind concerning the seriousness with which he continues to view violations of First Amendment Rights. Surely, Yonkers Mayor Phil Amicone, and his advisors, must now realize what a grievous miscalculation they made in their oppressive and reckless campaign to prevent truthful, if unfavorable, information regarding the Mayor and the City Administration from reaching the People of Yonkers.
Content-based First Amendment violations are historically regarded as most egregious and intolerable.

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