CINCINNATI (CN) --- The city of Memphis blackballed a reporter after she was critical of its mayor and then refused to put her on the city's media advisory list in violation of her First Amendment rights, the reporter told a Sixth Circuit panel Tuesday.
Wendi Thomas, founder and editor of MLK50: Justice Through Journalism, sued the city, Mayor Jim Strickland and spokeswoman Ursula Madden in May 2020 after they refused to respond to repeated requests for placement on their media advisory list.
The list is used to notify members of the media about "events and activities involving the city," and while MLK50 was on the list for a period of time, Thomas says her email address was removed at some point after Jan. 20, 2019.
She said the lack of notifications made it difficult to provide coverage to readers during the Covid-19 pandemic, and alleged in her lawsuit MLK50 was removed because of negative coverage of Memphis and the mayor.
Thomas claims she was denied an interview with Strickland to discuss nationwide protests about shootings of Black men and women at the hands of police, and was told in an email by Madden that "you have demonstrated, particularly on social media, that you are not objective when it comes to Mayor Strickland."
Less than two weeks after Thomas filed suit, Memphis got rid of the advisory list entirely and instead began using its website to notify the public about press conferences and other events. In light of this development, U.S. District Judge John Fowlkes Jr. found MLK50's case moot and granted the defendants' motion to dismiss.
In her brief to the Sixth Circuit, Thomas argued the city could reimplement its discriminatory advisory list at any time and that its change of direction immediately after she filed suit gives her standing to pursue constitutional claims.
"The district court ignored that the city's policy change was made behind closed doors without any transparency or even explanation," the brief states. "Moreover, the city specifically reserves that right to change the new policy at any time without notice and has not disavowed the challenged practice."
Thomas cited the 2010 decision Harrell v. Florida Bar from the 11th Circuit in support of the argument that the "'timing and content' of a decision to cease a challenged activity are critical in determining the motive for the cessation." (Emphasis in original.)
In its brief to the Cincinnati-based appeals court, Memphis argued the use of its website and Twitter page for press notifications "has completely and irrevocably eradicated the effects of the alleged violation," and urged the three-judge panel to uphold Fowlkes' decision. The city said the single email cited by Thomas is insufficient to support her case of retaliation, and pointed out she has not made any additional requests for interviews with Strickland.
Attorney Paul McAdoo argued on behalf of Thomas before the Sixth Circuit panel Tuesday and was peppered with questions throughout his 15 minutes of allotted time.
U.S. Circuit Judge Bernice Donald, an appointee of Barack Obama, asked McAdoo about possible relief if the panel found the case had not been mooted by Memphis' new policy.
The attorney said an injunction preventing the city from reverting to its former policy would be a start, but that economic damages could also be available, even though they were not specifically mentioned in the initial complaint.
Donald said the new policy is more transparent than the email list and called it a "more favorable position for everyone."
"Why would they want to go back?" she asked. "What facts could you point to that the city would revert back to the media advisory policy?"
"There is no smoking gun in the record," McAdoo said. "What we have here is the timing, the lack of transparency, and the city's reservation of the right to change the policy at any time."
Attorney Bruce McMullen argued on behalf of Memphis and said the implementation of its new policy "was a fix" for all members of the media.
"From a practical matter," he said, "the listserv is outdated … There's no practical reason to ever return to that policy. It's like bringing an injunction to [keep police] from going back to horse and buggies."
McMullen emphasized the new policy "has teeth," and that any city employee who attempts to create or maintain an email notification list is subject to punishment.
In his rebuttal, McAdoo pointed out the new policy does not explicitly bar the use of an email list, although he conceded employees could be punished for violations. The attorney also took issue with the police analogy used by his opposing counsel and pointed out that "a lot of police departments do use horses even though police cars are available."
He told the panel the city could have been more transparent throughout the process of establishing a new media notification policy, including allowing for public comment and discussion.
"They did the minimum of what they had to here. Two signatures," McAdoo said.
McAdoo, a staff attorney for the Reporters Committee for Freedom of the Press, represents Courthouse News in seeking to unseal court records involving former Georgia Senator David Perdue.
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. No timetable has been set for the court's decision.
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