Federal Court Denies City of Atlanta’s Motion to Silence APN Editor



totenberg(APN) ATLANTA — On today, June 08, 2020, U.S. District Court Judge Amy Totenberg denied the City of Atlanta’s extraordinary and outrageous motion to silence the News Editor of Atlanta Progressive News, in Cardinale v. City of Atlanta, 1:20-cv-01077-AT.


On April 14, 2020, the City of Atlanta filed a motion in federal court, asking for the court to order APN’s News Editor to stop sending emails to the Atlanta City Council, Transparency Officer Kristen Denius, and other agents of the City of Atlanta regarding the subjects of the federal litigation.


U.S. District Totenberg ruled that the City of Atlanta’s motion was unconstitutional under the First Amendment.




Former State Sen. Vincent Fort (D-Atlanta), and activists Edith Ladipo, Ben Howard, Ron Shakir, Brother Anthony Muhammad, Prophet Curtis Muhammad, and Timothy Franzen filed an Amicus Brief in support of APN’s Editor.




Former State Sen. Fort and Franzen said they were especially worried about what precedent might be set if the City’s motion had been granted.  They are currently challenging the validation of the City of Atlanta’s municipal bonds in the Gulch Redevelopment in court, and they continue to address the Council and Mayor regarding their opposition to the Gulch Redevelopment.


The federal litigation, Cardinale v. City of Atlanta, includes a federal claim that certain public comment policies of the Atlanta City Council are unconstitutional.


Also at issue in the litigation are claims that the City of Atlanta negligently withheld records in violation of the Georgia Open Records Act; and held two improper Executive Sessions in violation of the Georgia Open Meetings Act.






APN’s News Editor has chosen to send copies of motions and other litigation documents to Councilmembers and Transparency Officer Kristen Denius, to keep them informed as to the status of the claims, as part of his First Amendment rights to free speech and to petition one’s government for a redress of grievances.


Prior to the City filing the motion, Atlanta City Councilman Antonio Brown (District 3) complained in an email that the emails from APN’s News Editor were clogging his email inbox, and allegedly interfering with the City’s response to COVID-19.


You have absolutely no respect for city government… You should be ashamed of yourself,” Councilman Brown opined.  


It is not immediately clear why constituents should stop emailing Councilman Brown simply because he is unable to manage an email inbox.


However, despite Councilman Brown’s attacks, APN’s News Editor persisted in emailing the Transparency Officer and the Atlanta City Council pursuant to the First Amendment.


The City of Atlanta in their motion also complained about APN’s News Editor making public comments, as allowed by the Charter of the City of Atlanta; and making open records requests, as allowed by the Georgia Open Records Act.


The City of Atlanta, in their motion, asked Judge Totenberg to subject APN’s Editor to the “Georgia Rules of Professional Conduct,” specifically, Rule 4.2, which prohibits attorneys from contacting opposing parties without going through their attorneys.


However, APN’s News Editor is not an attorney.


Moveover, Georgia’s Rule 4.2 also does not apply to government agency parties, because of the First Amendment rights of individuals to petition the government.


And so, the City was asking the Court to take a rule that applied neither to APN’s News Editor nor the City of Atlanta, and apply it to both APN’s News Editor and the City of Atlanta.


“The Court agrees with Plaintiff that it is not appropriate to apply… the Georgia Rules of Professional Conduct to a non-lawyer,” U.S. District Court Judge Totenberg ruled.


Alternatively, the City asked the Court to enjoin APN’s News Editor from contacting the City of Atlanta anyway.


“While neither Model Rule 4.2 nor its Georgia counterpart govern the Court’s analysis, the recognition by these authorities of the First Amendment constraints on Rule 4.2 are probative of the constitutional limits of this Court’s authority to regulate the speech of parties before it,” U.S. District Court Judge Totenberg ruled.


“The City has failed to identify any purported prejudice, other than annoyance and the fact that the communications distract city officials from dealing with the COVID-19 crisis,” she ruled.


“In the absence of prejudice, there is no basis to enter the City’s requested relief… Plaintiff’s right to petition the government for grievances does not arise from the discovery rules, but from the Constitution itself,” she ruled.


Atlanta Progressive News has long been a champion for open records, open meetings, public comments, and the constitution on behalf of our readers.  


In 2012, APN’s News Editor secured a ruling from the Supreme Court of Georgia banning Georgia agencies from taking secret votes across the state, after the Atlanta City Council took a secret vote while having lunch at the Georgia Aquarium.


U.S. District Court Judge Totenberg also remanded the open records and open meetings claims back to Fulton County Superior Court, where they originated.  The City of Atlanta had removed the state claims to federal court even though they did not belong there.


With the remand of the state claims, APN’s News Editor now has two cases in Fulton County Superior Court, seeking civil penalties against the City of Atlanta for violations of the Georgia Open Records Act and Georgia Open Meetings Act.


Meanwhile, the people of Florida, Georgia, and Alabama now have federal case law establishing the principle that members of the public in civil litigation with their government can continue emailing their government as they choose.


(END / Copyright Atlanta Progressive News / 2020)

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