Suit dropped against blogger who posted report
Exeter Township has withdrawn a lawsuit against a township resident who used his blog to post portions of an investigative report he obtained but the township claimed was privileged information.
Jerry Geleff, who posts blog articles and podcasts on his local news website Exeter Examiner, in December published three pages of the 43-page report. The township had hired an attorney to investigate claims that Supervisor David Hughes had harassed and committed sexual discrimination against women working for the township, which resulted in the report.
That led to counterclaims of constitutional violations by Geleff and the supervisors. The township said Geleff violated the privacy rights of those who’d been interviewed for the report, and Geleff said his right to free speech was being infringed upon.
In December the township obtained an emergency order in Berks County Court for Geleff to remove his posts, and the case was headed toward a civil jury trial before Exeter withdrew its suit.
“Hopefully this is a wake-up call to local government that they cannot squelch the First Amendment rights of the citizens,” said Paula Knudsen Burke, a lawyer with the Reporters Committee for Freedom of the Press who represented Geleff.
Geleff also filed a criminal complaint against the supervisors alleging they violated the Sunshine Act, but Berks County District Attorney John T. Adams said Friday that his office will not be pursuing
Geleff’s complaint.
Adams said his office found the complaint lacked enough evidence to warrant an investigation into possible criminal charges against township officials.
The report on Hughes from which the dispute originated cautioned Hughes about his behavior and tone with employees but did not find proof of discrimination. As a result of the complaints against Hughes, the township created and changed several policies, and is adding training to help avoid future discrimination or misconduct, said township solicitor J. Chadwick Schnee.
Geleff had been given portions of the report by someone he did not identify, but when he posted those excerpts on his site the township immediately objected. Schnee said the report was township property and privileged attorney-client communication, not public information.
The suit against Geleff filed Dec. 15 sought an order for him to return all physical and electronic copies of the report, and to destroy copies and descriptions of the report published on his podcast, Facebook page and website. The same day, Berks Judge M. Theresa Johnson granted the township’s temporary injunction.
“This is nothing but retribution for a very vocal critic who has a media outlet and audience,” Geleff wrote in a blog post about the lawsuit. “They are attempting to silence any dissent of their plans. And they must be stopped.”
Knudsen Burke filed a motion to dissolve the injunction, but the case did not reach trial before the township withdrew suit.
Geleff has resumed posting about the report and said the termination of the suit against him was a victory for freedom of speech.
“The 1st Amendment prevailed, Exeter. We are all better off for it,” he wrote. “I hope the Exeter Township Supervisors have learned that threats and intimidation don’t work.”
The 15 current and former township employees and officials who were interviewed during the investigation did so under the promise of confidentiality, and publishing part of the report will likely deter others from coming forward with future complaints or cooperating with investigations, Schnee said.
Interim township manager Betsy McBride agreed that officials were concerned that posting the report would hinder future investigations.
Because portions of the report have continued to be shared, though, it did not make sense for the township to spend more taxpayer money on legal expenses fighting its release, Schnee said.
The township plans on sharing a brief summary of the report and its findings at a later date, the township said in a Facebook post.
Geleff initially tried to get the report directly from the township but was denied. He appealed to the state Office of Open Records, which also found the report to not be a public record.
Knudsen Burke argued that the order violated the First Amendment and the Pennsylvania Constitution, and that it contradicted nearly a century of U.S. Supreme Court decisions its striking down prior restraints on speech.
“The First Amendment protects Mr. Geleff’s right to possess and publish the portions of the report he received from his confidential source no less than it protected the journalists who obtained and published the classified Pentagon Papers,” she wrote, referring to the Vietnam War documents published in The New York Times in 1971.
“This behavior would be troubling from a private litigant,” reporters committee attorneys wrote in a court filing. “From the township, a local government seeking to punish one of its residents for speech on a matter of public interest, it shocks the conscience.”
Schnee said that if Geleff disagreed with the state Office of Open Records ruling he should have appealed it to Berks County Court rather than publish parts of a document that were not his property without permission.
Geleff’s filing of a criminal complaint against the township related to how the supervisors’ decision to sue him was not reached in a public setting, which Knudsen Burke said is required under the Sunshine Act.
Schnee said the supervisors needed to act quickly to get Geleff’s posts taken down before they did more harm, so the supervisors reached a consensus during one-onone phone calls and then directed Schnee to proceed.
Therefore no Sunshine Act violations were committed, he said. But even if the consensus should have been reached during a public meeting, the supervisors cured that issue by voting during a meeting later in December to approve the suit, which had already been filed, he said.
Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, disagreed, saying the supervisors reaching a consensus through phone calls outside of public view violated the Sunshine Act.
Knudsen Burke said the later vote did not remedy that the township had tried to circumvent the public process.
“Hopefully this is a wake-up call to local government that they cannot squelch the First Amendment rights of the citizens.” — Paula Knudsen Burke, lawyer with the Reporters Committee for Freedom of the Press