If it's true that the pen is mightier than the sword, it is equally true that the pen is not as tough as the almighty dollar. Knowing this, town officials who take offense at newspaper coverage of them have sometimes retaliated by pulling advertising from the offending publications.
Those days could be coming to an end. In a First Amendment lawsuit presently before U.S. District Judge Richard Matsch, the judge opines that "those who hold transient power over the public purse cannot abuse it to suppress the speech of their political or public critics."
The case, involving the publisher of the Ten Mile Times newspaper and officials of the mountain town of Frisco, is the result of a hair-pulling match between the tiny weekly paper and the former town manager. Since reaching federal court, however, the lawsuit has come to the attention of First Amendment proponents throughout the state. But perhaps no one will be watching for a decision in the case more closely than the owner of an equally small weekly paper in Commerce City, who claims that the city manager there is carrying out "economic blackmail" in an effort to silence him.
"This could be a precedent-setting case, because the rules of engagement are not clear," says Julie Lucas, executive director of the Denver-based First Amendment Congress, a coalition of twenty national media and communications organizations. "When you're dealing with advertising dollars and you're a private person or a private company, it's well within your rights to pull advertising if you don't like what the press says about you. But when a government agency deals with tax dollars, it becomes an entirely different horse.
"I think Judge Matsch is absolutely right. [The suit] raises very alarming questions: Does the government have the right to suppress speech by using economic means?"
Miles Porter, the irascible editor/publisher of the Ten Mile Times, has been shaking things up in Summit County since 1984, when he started the paper. He's blunt, to say the least, and his editorials and columns reflect his personality. Still, he and his newspaper got along with Frisco officials well enough until about June 1991, when then-town manager Elizabeth Black took umbrage at his personal column, "The View From the Frisco Bay Windows."
In that month, according to Porter's suit, Black--with the backing of the mayor and at least one town council member--placed a ban on advertising with Porter-Staby Publications, which publishes the Times, along with the Copper Cable newspaper in Copper Mountain and The Guide to Summer the Summit, a summer supplement.
Porter refuses to be quoted for this article, but he commented at length about the situation to one of his own reporters in his own paper in July 1991. In that article, Porter was quoted as saying that when he questioned Black about the ban, he was told, "We're fed up with your treatment of the town." Porter, however, suggested that it was his published reference to an affair between two very married town officials--not his "treatment of the town"--that led to the advertising shutout.
For the next two years, Porter claims, he tried to work things out with the council, to no avail. So in 1993 he filed suit, claiming that Black and her cohorts had violated his rights as guaranteed under the First and Fourteenth Amendments, calling the town's acts "the retaliatory withdrawal of advertisements as a monetary sanction employed to chill and inhibit freedom of expression."
As is frequently the case when dealing with the judicial system, nothing much happened for a long while. In the meantime, most of the city council members moved on and out. The mayor quit in the middle of his term while facing a recall petition.
Porter, however, didn't give up hounding the city government, frequently taking it to task for withholding public documents and/or violating the state's "sunshine" law regarding open meetings. And the bad feelings and resistance continued. According to a July 19, 1996, letter Porter wrote to the council and to Mayor Tex Etie, when one of Porter's reporters questioned the legality of a closed meeting, Etie told her, "Fuck Miles Porter--he's an asshole for even asking." (Etie, who was on the council when the feud started in 1991, could not be reached for comment.)
Little happened with the case until June of this year, when Judge Matsch issued a memorandum and order denying Frisco's motion to dismiss the suit. "This case," Matsch wrote, "will turn on whether there is sufficient evidence to prove the plaintiff's claim that the members of the town council were motivated by...an unconstitutional purpose or the Town can provide proof of some justifiable reason to withhold advertising from the plaintiff."
If the town declines to settle out of court, the case could go before a jury early next year.
Over in Commerce City, Norm Union, publisher of the Commerce City Beacon, is facing a situation remarkably similar to that of Porter: Six years after Elizabeth Black placed a ban on advertising in the Ten Mile Times, Commerce City city manager Tim Gagen decided it was time to pull the plug on the Beacon.
His problem with the Commerce City paper, says Gagen, is that there sometimes seems to be no discernible difference between the editorial content and the news. The publisher's opinions, he says, color the reportage, and the paper does not disclose both sides of an issue. "We've had a number of contacts with them, calling them to task as expressing disappointment" over coverage, Gagen says. "We met with them privately and said that this is not a service to the city and the people."
Matters finally came to a head this past spring, when the town began hearings on two controversial issues--a property-maintenance ordinance and new rules governing adult businesses. Gagen says he didn't feel that the paper properly reported both sides of the issues. Gagen again summoned Union to a meeting. This time, however, Gagen said he told the publisher that the town would no longer be advertising with the Beacon.
"Basically," Union says of the meeting, "Gagen said that he didn't like the way we were characterizing him and that some of our information was not correct and that he wasn't going to put up with it. He said they were going to call us on it."
The threat didn't affect the paper's reporting, however. "We're not going to be placing ourselves under anybody's thumb," Union says.
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And by late June, when someone with the city's parks and recreation department ordered a full-page ad touting the city's Fourth of July activities, Union figured the brouhaha had blown over. He was wrong. Just two hours before press time, Union was informed that the city would not pay for the ad. Union ending up pulling the page, but he inserted a red-inked box on the front page, accusing the city of economic blackmail.
Gagen fired back with a letter (which Union then published in full in his paper) stating that the city tries to get the best value for its money and that "this does not include buying poor-quality or bad products, including poor journalism."
"The City," Gagen wrote, "also has an obligation to get the most accurate information out to the people it serves, and until the quality and accuracy of information that is being published in the Beacon improves, the City will continue to exercise its consumer choice not to buy the product."
If Matsch's recent ruling is any indication, however, Gagen just might have to eat his--or Union's--words.