Pittsburgh Post-Gazette will get another chance to make its First Amendment argument

The Pittsburgh Post-Gazette will get another bite at the apple in claiming that its decision to remove its former reporter Alexis Johnson from covering Black Lives Matter stories is protected by the First Amendment.

“The judge did not laugh the First Amendment argument out of court nor is it correct to say he’s ‘having none of it,’” Post-Gazette representative Mark Fefer told me by email in disputing a post I wrote earlier this week. Fefer is senior communications strategist for the paper’s law firm, Davis Wright Tremaine.

In fact, as I wrote earlier, U.S. District Judge J. Nicholas Ranjan threw out the Post-Gazette’s claim that Johnson’s lawsuit should be dismissed on First Amendment grounds, writing, “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.” (I did not write that the judge “laughed the First Amendment argument out of court,” though that was a fair inference given the context.)

But Ranjan also wrote that the factual record at this early stage of the case is too “undeveloped” to reach a final ruling, and that the Post-Gazette should have an opportunity to prove that its First Amendment argument has merit.

“Because discovery is likely to refine both the claims and defenses in this case,” Judge Ranjan concluded, “the Court denies the motion without prejudice to PG Publishing raising its arguments, including its First Amendment argument, on a more factually developed record at summary judgment or trial.”

Johnson, who is Black, was barred from covering Black Lives Matter protests after she posted a humorous tweet that her editors claimed compromised her ability to be objective. She is now a reporter with Vice News.

The full text of Ranjan’s ruling can be found here.