Town of Clarkstown Violating First Amendment Right Of Press Access

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Town Discriminates Against RCBJ In Effort To Block News Coverage; Legal Cases Support Press’ Right to Access

By Tina Traster

Journalists, by a general rule of thumb, do not like to be the subject of a story. In fact, our mission is to gather news to keep a democratically-minded public informed rather than turn the spotlight on ourselves. But when we are thwarted from getting information in a systematic way from a town or public entity or official, then we do have a story that is about us – but also about you.

Simply put, if we don’t get the access the press is entitled to, you’re less likely to receive information that rightly belongs to you too.

Unfortunately, we are not writing this piece in a vacuum.

For several years, the Town of Clarkstown has refused to include Rockland County Business Journal on its press list. It refuses to send us the press releases, media advisories, and invitations to press conferences that it sends other media outlets. The town’s communication director, Erika Moschetti, maintains a list of press members who receive notification of press conferences or news items. Despite repeated efforts made by email and by phone asking to be included, RCBJ has been systematically left off the list.

This raises the kind of questions probing journalists ask.

The first is why? We don’t have a definitive answer but given how many times we’ve made a request for inclusion we do know that being blocked is deliberate. And most likely, this is not a decision Moschetti has made on her own.

The next question is: Does the Town of Clarkstown have the right to discriminate against one news outlet, perhaps because it doesn’t like that outlet’s coverage or point of view? That, in the end, is a legal question, but according to First Amendment attorneys, the answer is “no.”

On March 21, RCBJ filed a formal complaint with the town and the town attorney, alleging the town is violating RCBJ’s First Amendment rights by obstructing us from receiving press releases, media advisories and invitations to press conferences issued by the town and sent to other media outlets. RCBJ has not received a response.

Courts have long recognized a right of access by the media to government information. An abundance of First Amendment cases established that such a right of access includes a right to receive information that is made generally available and sent to other media outlets. Under First Amendment jurisprudence, a government cannot deny a particular media publisher access to press releases and similar information even if that government or government officials disagree with the media’s viewpoint or coverage or presentation of what it deems newsworthy. A government (including a municipality) cannot discriminate against a news outlet because the news outlet has been critical of the government (or a government official) or because a news outlet has shone a light on a practice the municipality would prefer to keep secret. That government cannot deprive a particular media outlet access to facilities or localities where other press representative access news.

Press freedom advocates have established through the courts that it is antithetical to the First Amendment for governments to pick and choose which media outlets they give access to or to whom they provide information. In part, those findings are derivatively designed to protect you, the public.

Clarkstown has not issued a written reply to our complaint, but Town Attorney Kevin Conway said by phone that the town has the right to exclude a member of the press from its press list. We disagree, and so does a body of First Amendment jurisprudence.

We are closely following a legal case in the United States District Court for the District of New Jersey. Aaron Morrill and The Jersey City Times, LLC, (a hyper-local news site), are suing the Mayor of Jersey City Steven M. Fulop, Press Director Kimberly Wallace-Scalcione, and the City of Jersey City over a similar issue. The Plaintiffs allege Jersey City has blocked them from a press list and press events because the city doesn’t like the viewpoints they’ve expressed on issues.

“The right to question and criticize public officials is essential to a healthy democracy, as is a robust, free, and independent press,” the lawsuit says. “And yet, when faced with critical reporting by a local news publication, Jersey City’s mayor, Steven Fulop, punished the publication and its editor by engaging in a policy and/or custom of viewpoint and content-based discrimination and retaliation that has continued for several years.”

The lawsuit, filed Dec. 18, 2023, alleges that after publishing a story critical of the mayor, the defendants “immediately removed Plaintiffs from the City’s press email distribution list (the “Press List”) and stopped inviting Plaintiffs to official City events altogether. Such retaliation against protected speech is anathema to the First Amendment and threatens to stifle the free flow of information upon which our democracy depends.”

The Plaintiffs are being represented by the law firm Weissman & Mintz LLC of Franklin Township and the Media Freedom Information Access Clinic at Yale Law School.

We are also watching another case filed in December in the United States District Court for the Northern District of New York where Catskills-based news outlet The Reporter is suing Delaware County for retaliation and denial of access over unfavorable news coverage. In that suit, the news outlet alleges, “This lawsuit challenges Defendants’ wanton and willful retaliation against a local newspaper for its critical reporting in violation of its First Amendment rights.” The Reporter is represented by Greenberg Traurig of Albany and the Cornell Law School First Amendment Clinic.

Rockland County Business Journal was founded in 2018 and is an online daily news source. We publish Monday through Friday and have posted several thousand stories since inception. We average 100,000 page views per month to our website and have more than 7,500 subscribers to our daily “Morning Read” newsletter. We are a member of LION (Local Independent Online News) Publishers, a professional association for local independent news publishers in the U.S. and Canada. We have received several grants from Google News Initiative and are likely the most prominent news publisher in Rockland County. We also have a fiscal sponsor for tax-deductible donations, the Local Media Foundation.

Let’s not watch our democracy wither away. When a town oversteps in one realm it will feel more empowered to do so in others that deprive citizens of free speech. And that’s unacceptable.

If you believe that local journalism must play a greater role on these issues, please donate to the Rockland County Business Journal Reporting Project via Local Media Foundation. Contributions to this fund will help pay for the news resources needed to dig deep on issues affecting our local housing needs and built environment.

Donations can also be mailed directly to our Fiscal Sponsor. Make checks payable to the “Local Media Foundation” P.O. Box 85015, Chicago, IL 60689-5033 and note Rockland County Business Journal in the memo line. Contributions to this fund will help pay for the news resources needed to dig deep on issues affecting our local housing needs and built environment. 

The Rockland County Business Journal Reporting Project seeks to expand reporting on important local issues such as housing and the environment. Donations to Local Media Foundation for this project are tax-deductible to the extent of the law. No goods or services are provided in exchange for contributions. Please consult a tax advisor for details. The program is administered by Local Media Foundation, tax ID #36‐4427750, a Section 501(c)(3) charitable trust affiliated with Local Media Association.