Selim Zherka v. Philip Amicone, No. 10-37 (2d Cir. 2011)
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10-37-cv Zherka v. Amicone 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: January 11, 2011 Decided: March 2, 2011) Docket No. 10-37-cv SELIM ZHERKA, Plaintiff-Appellant, v. PHILIP AMICONE, IN HIS CAPACITY AS MAYOR OF THE CITY OF YONKERS, Defendant-Appellee.* Before: POOLER, WESLEY, and CHIN, Circuit Judges. Appeal from judgment of the United States District 30 Court for the Southern District of New York (Seibel, J.), 31 entered on December 22, 2009, which dismissed with prejudice 32 Plaintiff-Appellant s First Amendment retaliation claim on 33 the ground that state-law per se defamation does not 34 constitute concrete harm as required to maintain a cause of 35 action for constitutional tort against a public official * The Clerk of the Court is directed to amend the official caption in accordance with this opinion. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 where plaintiff does not allege actual chilling. AFFIRMED. RORY J. BELLANTONI, Lovett & Bellantoni, LLP, Hawthorne, NY, for Plaintiff-Appellant. BRIAN T. BELOWICH, DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, NY, for Defendant-Appellee. WESLEY, Circuit Judge: 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. 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. 28 judgment is AFFIRMED. While in Accordingly, the district court s Page 2 of 12 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. 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 In the fall of 2007, 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 re- 15 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 1 It 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. Page 3 of 12 1 under New York common law.2 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 9 Zherka alleged prospective Amicone admitted that he was present at the meeting, 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. 13 pleadings with an award of fees and costs. 14 Amicone moved for judgment on the 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. 18 supplemental jurisdiction over the remaining state-law She declined to exercise 2 Zherka also alleged a violation of his right to travel under the Fourteenth Amendment. He wisely withdrew this claim prior to the judgment below. 3 Only 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). Page 4 of 12 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 II. DISCUSSION4 5 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. 12 (2d Cir. 2002) (per curiam). 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 Colombo v. O Connell, 310 F.3d 115, 117 Various forms of harm have We have described the elements of a First Amendment 18 retaliation claim in several ways, depending on the factual 19 context. 20 (2d Cir. 2008). Williams v. Town of Greenburgh, 535 F.3d 71, 76 For example, public employees must show 4 We 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. Page 5 of 12 1 adverse employment action. 2 must show retaliatory conduct that would deter a similarly 3 situated individual of ordinary firmness from exercising . . 4 . constitutional rights. 5 381 (2d Cir. 2004) (internal quotation marks and citation 6 omitted). 7 Id. For their part, inmates Gill v. Pidlypchak, 389 F.3d 379, 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)). 12 other forms of harm have been accepted in place of this 13 actual chilling requirement. 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 ). 22 a general matter, First Amendment retaliation plaintiffs However, in limited contexts, See, e.g., Dougherty v. Town Despite these limited exceptions, as Page 6 of 12 1 2 must typically allege actual chilling. 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. 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 The 10 sufficiently tangible to serve as a substitute for actual 11 chilling. 12 We agree. 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 5 Indeed, 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. 6 There 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). Page 7 of 12 1 they need not be alleged or proven. 2 80 N.Y.2d 429, 435 (1992). 3 important role, in that the state has a pervasive and 4 strong interest in preventing and redressing attacks upon 5 reputation. 6 Liberman v. Gelstein, Defamation law plays an Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). 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. 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 Hurt feelings or a bruised ego 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). Page 8 of 12 In our view, the 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. 7 Inc., 418 U.S. 323, 349 (1974). 8 tension between the state s interest in protecting a 9 citizen s reputation on the one hand, and the Gertz v. Robert Welch, Gertz recognized the 10 constitutional command of the First Amendment on the 11 other. 12 common law of defamation provided an action based upon 13 constitutionally protected speech. 14 that states were prohibited by the First Amendment from 15 permitting recovery of presumed or punitive damages absent a 16 showing of malice. 17 Id. There, the question was whether the state s The Supreme Court found Id.7 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 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). Page 9 of 12 1 a federal constitutional tort claim? 2 a sense, speech against speech. 3 core protected speech under the First Amendment. 4 alleged retaliation did not come in the form of denial of a 5 permit or threat of a lost contract. 6 of statements none very kind about Zherka. 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 11 We have before us, in Zherka s publications are Amicone s Rather, it was a group Retaliatory complaint from the forum of free speech into federal court.8 Our holding today does not rule out the use of non-per 12 se claims of defamation in § 1983 First Amendment 13 retaliation claims. 14 specified, the claim may proceed. 15 business or some other tangible injury as a result of a 16 defendant s statements would suffice to establish concrete 17 harm. 18 se defamation is inadequate. Where concrete harm is alleged and Allegations of loss of But the presumed injury of New York s theory of per 8 Some 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). Page 10 of 12 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 4 but in a most cursory fashion. 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). 8 in response to a direct question from Judge Seibel, that per 9 se defamation was the only harm alleged. 10 Zherka did allege both, As pleaded, the allegations In any event, Zherka s attorney affirmed, 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. 14 subject to limits, but the injury inflicted by that response 15 must be real. 16 would change from the guarantor of free speech to the 17 silencer of public debate. A public official s response to that criticism is Without that limitation, the Constitution 18 9 Our 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. Page 11 of 12 1 III. CONCLUSION 2 3 The district court s judgment of December 22, 2009 4 dismissing with prejudice Plaintiff-Appellant s First 5 Amendment retaliation claim is hereby AFFIRMED. Page 12 of 12
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