Clarification: The Post-Gazette will get another chance to make its First Amendment argument.
The story may be apocryphal, but it’s a good one. Some years ago a few independent weekly newspapers in the Boston area sued a daily paper, charging that the daily — which also owned a small chain of weeklies — was illegally selling ads in its weeklies at a loss in order to drive the independents out of business. The owner of the daily claimed his actions were protected by the First Amendment. As you might imagine, the judge in the case laughed him out of court.
Something similar just happened to the Pittsburgh Post-Gazette. Former reporter Alexis Johnson, who was banned from covering Black Lives Matter protests after her editors claimed that her innocuous Twitter joke about a Kenny Chesney concert compromised her objectivity, sued the paper in June 2020, claiming racial discrimination (Johnson is Black) and illegal retaliation. The Post-Gazette argued that its actions were protected by the First Amendment.
U.S. District Judge J. Nicholas Ranjan is having none of it. According to Ryan Deto of the Pittsburgh City Paper, Ranjan rejected the Post-Gazette’s bid to dismiss the case, ruling, “While the First Amendment provides a publisher absolute discretion to refrain from publishing content, this discretion does not extend to allow a publisher to make any and all discriminatory personnel decisions.” University of Pittsburgh law professor Jerry Dickinson told the City Paper that the ruling could help other journalists of color who are dealing with workplace discrimination:
It means the P-G can’t short-circuit accountability by hiding behind the First Amendment for protection from its discriminatory actions. There are clearly enough facts in dispute that affords the case to move forward. The backdrop to this case was the Black Lives Matter movement and racial justice protests after the murder of George Floyd. We don’t want the First Amendment weaponized against racial progress. That’s dangerous.
The Post-Gazette’s actions against Johnson sparked national coverage, leading to outrage in the newsroom and a decision by a supermarket chain to stop carrying the paper. Johnson herself left and is now a high-profile reporter for Vice News.
As I wrote at the time for GBH News, the story also shone a spotlight on the decline of the Post-Gazette under publisher John Block, whose family had owned the paper for many years but who was personally a Trumper who seemed peculiarly ill-suited to the job.
Just as the owner of that Boston-area newspaper learned many years ago, the First Amendment may be a powerful tool for guaranteeing freedom of the press — but it doesn’t magically protect business practices that would be illegal for anyone else.