No chill, no case for Westchester Guardian

The Westchester County District Attorney called the editor of a raucous weekly newspaper to protest the Westchester Guardian's coverage of local politics. Here's the crux of the dispute: "Plaintiffs allege that Janet A. DiFiore ... called Zherka from her private cell phone to complain about an article published in his newspaper and that this complaint chilled the newspaper's publication of subsequent articles involving DiFiore or her husband personally and inflicted emotional distress on Zherka."

The case is Zherka v. DiFiore, a summary order decided on February 8. There's a few problems with this First Amendment action, which is why the case is dismissed. First, there is no evidence that DiFiore made that phone call in her capacity as District Attorney, which means that she was not a state actor when she allegedly pressured the newspaper to stop running its negative articles, which means that Zherka cannot sue her under the First Amendment. The Court of Appeals (Livingston, Katzmann and Winter) writes: "crediting Zherka's version of the conversation between him and Ms. DiFiori, in which he claims she first identified herself as the district attorney, we agree with the district court's conclusion that 'there is no indication that [DiFiore] intended to, or did, exercise any 'power possessed by virtue of state law.'"

But even if the District Attorney did intend to wield her official authority when she called Zherka, he cannot sue her because he has no standing to do so; there is no evidence that the phone call chilled Zherka's speech. Without a chilling effect, there is no First Amendment violation. Zherka said that the newspaper published "muted" articles in the wake of the phone call, in fact, the paper began attacking DiFiore within a month of the phone call. That's not a chilling effect.

So what starts out as an interesting lawsuit occasioned by the District Attorney's angry phone call to the publisher fizzles out because she called as a private citizen and, in any event, the newspaper did not hold off on its critical coverage.