PITTSBURGH – The Pittsburgh Commission on Human Relations has hit back at the Pittsburgh Post-Gazette’s claims that its investigation into alleged race discrimination at its publication has violated its First Amendment rights.
PG Publishing Company of Pittsburgh and Block Communications, Inc. of Toledo, Ohio first filed suit in the U.S. District Court for the Western District of Pennsylvania on Aug. 18 versus the Pittsburgh Commission on Human Relations (PCHR).
“[The suit] arises from a June 9, 2020, complaint the Commission brought against the Post-Gazette for applying its editorial policy that news reporters should not cover events about which they have engaged in public commentary,” the suit stated.
“The complaint purports to raise questions of racial discrimination because the reporter who initially sparked the controversy is African-American, but the facts show – as even the PCHR acknowledges – that the policy was applied to all Post-Gazette staff members without regard to race.”
The crux of the lawsuit stems from the PCHR launching an investigation into how the Post-Gazette assigns its personnel to cover news stories, after two Black employees, one reporter and one photographer, claimed their race was the reason they were taken off coverage of this year’s protests after the death of George Floyd in Minneapolis.
Alexis Johnson, a social media reporter for the Post-Gazette, had engaged in commentary and debate on Twitter with both proponents and opponents of the protests which took place in Pittsburgh after Floyd’s death.
Johnson’s supervisors at the Post-Gazette met with her to explain that the publication’s policy is that reporters cannot cover stories on which they have offered public commentary.
“The editors told Johnson they wanted to ensure she understood that the editorial decision was intended to protect the Post-Gazette’s credibility as a news organization, her credibility as a reporter, and her safety in these particular circumstances,” according to the suit.
On June 9, 2020, the PCHR notified the Post-Gazette and BCI it had initiated a complaint of employment discrimination against them under Title VII of the Civil Rights Act of 1964, as amended, and the Pittsburgh City Code.
“The PCHR alleges that reporters did not get story assignments they requested, or had stories altered or deleted, and suggests that the Post-Gazette’s editorial choices and assignment decisions designed to preserve editorial integrity constitute ‘discrimination’ or ‘retaliation’ in violation of local and federal law,” the suit stated.
Johnson has also filed a racial discrimination lawsuit against the Post-Gazette in federal court, while photographer Michael Santiago left the newspaper in June after accepting a contract buy-out.
Meanwhile, the newspaper denied it committed any discrimination and claims the PCHR’s inquest is an attempt to violate its constitutional rights.
“Requiring a newspaper to report to a political body to explain or justify its editorial decisions and staff assignments is precisely what the First Amendment was designed to prevent. The U.S. and Pennsylvania Constitutions divest the government of any authority to investigate, dictate, or penalize a newspaper’s editorial choices,” the suit said.
“The journalistic decision about what stories to publish and which reporters should cover them are matters in which the government may not interfere. The continuation of the Commission’s inquiry into the Post-Gazette’s editorial process thus constitutes an ongoing violation of the plaintiffs’ rights to freedom of the press.”
UPDATE
The PCHR filed a motion to dismiss on Oct. 1, citing the Younger abstention doctrine – which prevents federal courts from interfering in state court proceedings, such as investigation by state human relations commissions, absent extraordinary circumstances.
“The Pittsburgh Commission asks this Court to consider the practical implications of what the Post-Gazette seeks. If an employee proves a prima facie case of discrimination, the burden of proof to articulate legitimate, non-discriminatory reason for the adverse personnel decision shifts to the employer,” the dismissal motion states, in part.
“However, an adoption of the Post-Gazette’s position would mean that, even if a reporter establishes a prima facie case, the burden of proof would never shift because editors must never be questioned about their decisions. The Post-Gazette seeks an editorial exemption pertaining to the federal and state First Amendments which could be applied to all employment discrimination cases involving news reporters.”
The PCHR argues that precedential case law does not support this position, but additionally counters the Court should not address that topic, citing the Younger doctrine. That argument suggests the Post-Gazette should instead attempt to resolve its concerns before the Commission and, if need be, during state court review rather than by suit in federal court.
“All personnel actions taken by newspapers concerning its reporters involve some amount of editorial discretion, (i.e., “Is the reporter competent? Did the reporter follow the workplace rules?”). The Post-Gazette asks this District Court to prevent the Pittsburgh Commission from performing its statutory duty to investigate potential incidents of employment discrimination and, in so doing, to create an ‘editorial exemption,” the motion says.
For counts of violating the First Amendment and Article I – Section 7 of the Pennsylvania Constitution, the plaintiffs are seeking a declaration that the Commission’s investigation violates the plaintiffs’ rights to freedom of the press under the First Amendment to the U.S. Constitution and Article I – Section 7 of the Pennsylvania Constitution, an injunction enjoining the Commission from continuing its investigation and causing the dismissal of the complaint and investigation, costs, attorney’s fees and such other and further relief in favor of plaintiffs, as may be just and proper.
The plaintiffs are represented by Courtney Turco DeThomas, Robert Corn-Revere and Ronald Gary London of Davis Wright Tremaine in Washington, D.C., plus Patrick K. Cavanaugh and Zachary N. Gordon of Del Sole Cavanaugh, in Pittsburgh.
The defendant is represented by Chelsea Forbes, Lawrence D. Kerr and Mark R. Hamilton of Tremba Kinney Greiner & Kerr of Greensburg, plus Emily McNally, Julie E. Koren, Michael E. Kennedy and Wendy Kobee, of the City of Pittsburgh’s Law Department.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01222
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com