Appeals Court Tosses Case of Reporter Left Off Memphis Media List

CINCINNATI (CN) --- Assurances from the city of Memphis it has no plans to return to an email listserv to notify media members about press releases and upcoming events were enough to convince the Sixth Circuit a reporter's First Amendment were properly dismissed by a federal judge.

In a decision released only three days after the case was argued, a three-judge panel of the Cincinnati-based appeals court found no reason to reinstate a lawsuit filed by Wendi Thomas, founder and editor of MLK50: Justice Through Journalism.

The suit was premised on claims Thomas had been blackballed and removed from the city's listserv after coverage critical of Mayor Jim Strickland, who had also refused her interview requests.

Memphis decided to eliminate the listserv altogether less than two weeks after Thomas filed suit, and instead began using the city's website and Twitter feed to provide updates about events and announcements.

Thomas and her attorney, Paul McAdoo, argued the timing of the change was suspect, but U.S. District Judge John Fowlkes Jr. disagreed and ruled the First Amendment claims had been mooted.

U.S. Circuit Judge Bernice Donald wrote the Sixth Circuit's unanimous opinion and echoed Fowlkes' determination that Thomas' claims were mooted, and that a "voluntary cessation" exception does not apply.

Donald, an appointee of Barack Obama, ruled the change in policy was "legislative-like" and supported the city's argument it would not return to the listserv.

"Here," she wrote, "the city has offered sworn testimony from its chief legal officer stating that the city was required to obtain formal written approval of the new policy from two high-ranking city officers ... and that the city 'will not be disseminating any further media advisories through the media advisory list or any other media email listserv.'" (Emphasis in original.)

Absent any evidence the city intends to "flip-flop" back to its old ways, Donald and the other members of the panel were convinced the change was permanent.

"There is simply no indication that the city intends to repeal the new policy," the ruling states. "The city enacted a new media policy that not only resolved plaintiff's particularized grievances, but completely overhauled its media policy as to all media members." (Emphasis in original.)

Donald referenced statements made by the city's attorneys during Tuesday's arguments and noted any city employee who attempts to reestablish an email listserv will be subject to disciplinary action, another point that seems to indicate a permanent change.

Thomas argued the city's refusal to place her on the listserv deprived her of the opportunity to cover important events in the city, including those related to the Covid-19 pandemic, but the panel was unsympathetic.

"Plaintiff's argument is misplaced," Donald said, "because other than costs and attorney's fees, plaintiff did not seek damages or any other relief from any alleged injuries that would persist after the city changed policies."

Senior U.S. Circuit Judge Richard Suhrheinrich, an appointee of George H. W. Bush, and U.S. Circuit Judge Richard Griffin, a George W. Bush appointee, also sat on the panel.

McAdoo, a staff attorney for the Reporters Committee for Freedom of the Press, represents Courthouse News in an effort to unseal court records involving former Georgia U.S. Senator David Perdue.

"While we are disappointed with the court's decision, Ms. Thomas now has access to the media advisories as a result of this suit,” McAdoo said in a statement Friday. “And the court's decision today provides some protection for Ms. Thomas and other journalists in Memphis because the court sent a clear signal that the city could face legal consequences if it reverts to its prior practice."

A representative for the city did not immediately respond to a request for comment.

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