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.
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.
Even as national attention was focused on the latest internal drama at The New York Times, a disturbing, racially charged crackdown was playing out in a newsroom nearly 400 miles to the west. Pay attention, because what’s happening at the Pittsburgh Post-Gazette threatens the ability of journalists everywhere to exercise their conscience and cover their communities with integrity and empathy. Consider:
• Alexis Johnson, an African American reporter, was taken off the Black Lives Matter beat as punishment for an innocuous tweet about litter.
• Michael Santiago, a Black photographer who expressed his support for her, quit after he, too, was pulled from covering the protests.
• Stories by other reporters who’d retweeted Johnson in solidarity were removed from the web.
• A supermarket chain announced that it would stop carrying the paper.
• The union that represents some 140 of the Post-Gazette’s employees called on the editor and the managing editor to resign.
The story is still playing out — but it’s only the latest misstep by a paper that has been in turmoil for several years as it has lurched to the political right.
While the chattering classes have obsessed over the departure of New York Times editorial-page editor James Bennet and Philadelphia Inquirer executive editor Stan Wischnowski, both of whom misjudged the rising anger in their newsrooms over issues of race, diversity and privilege, what’s happening in Pittsburgh may prove to be more important. Ultimately, the Post-Gazette is a story about what happens when a newspaper’s ownership becomes so insular and out of touch that its ability to serve the community is called into question.
Some background. On June 4, the alternative Pittsburgh City Paper reported on a memo from the Newspaper Guild of Pittsburgh that Johnson had been yanked from demonstrations protesting the police killing of George Floyd in Minneapolis. Her offense: a tweet in which she humorously — but pointedly — compared the damage caused by looters to the mess left behind by tailgaters at a Kenny Chesney concert:
“Horrifying scenes and aftermath from selfish LOOTERS who don’t care about this city!!!!! …. oh wait sorry. No, these are pictures from a Kenny Chesney concert tailgate. Whoops.”
Horrifying scenes and aftermath from selfish LOOTERS who don’t care about this city!!!!!
The situation quickly spun out of control, blossoming into a national story and attracting the attention of The New York Times. Johnson said she was told by the paper’s managing editor, Karen Kane, as well as other editors that she was being taken off the protest beat because she had expressed an opinion in her tweet that showed she couldn’t be fair.
That, in turn, led to accusations that Johnson was being punished for reporting while Black — drawing a blistering response from the paper’s editor, Keith Burris.
“Editors at this newspaper did not single out a black reporter and a black photographer and ban them from covering Pittsburgh protests after the killing of George Floyd,” Burris wrote in a column published by the Post-Gazette. “And we certainly did not single out two people and keep them from covering local protests because they were black. That is an outrageous lie — a defamation, in fact.”
Johnson wasn’t buying Burris’ explanation. In an interview with CNN’s Brian Stelter on the “Reliable Sources” podcast, she accused her bosses of being simultaneously clueless and self-serving. “I can only conclude that it was because I was a Black woman and I was speaking on an issue that involves Black Lives Matter,” she said. “I said that to them at that moment, ‘I feel like it’s because it’s a Black issue that you feel like I have this bias.’”
Management’s contention that her Kenny Chesney tweet expressed an opinion about an issue that she was covering seems like a considerable stretch. But even if you grant that it was inappropriate (which I don’t), Johnson had a compelling retort. “Keith Burris is still head of our editorial board. And he’s also our executive editor of the newsroom,” she told Stelter. “So for them to claim that I have a bias is pretty ironic. And not only that, he continues to write columns for us, he continues to give his opinion, and then comes over to the news and tells us what to write and what angles he wants us to have. So it’s just a lot of hypocrisy.”
For the Post-Gazette, it’s been a rapid descent. As recently as 2019 the paper won a Pulitzer Prize for its heart-breaking coverage of the mass shootings at the Tree of Life Synagogue. But the paper’s respected editor, David Shribman, a former Washington bureau chief for The Boston Globe, took early retirement, paving the way for Burris to claim the top newsroom job while keeping his hand in on the opinion side as well.
In late 2019, Washington Post media columnist Margaret Sullivan documented a series of bizarre and disturbing incidents, including a newsroom tirade by publisher John Block; the firing of cartoonist Rob Rogers for harshly lampooning President Donald Trump; and an editorial written by Burris that defended Trump against charges of racism following Trump’s outburst over “shithole countries.” The editorial was published on Martin Luther King Jr. Day.
The Post-Gazette has been owned for decades by the Block family, which also owns The Blade of Toledo, Ohio, as well as television stations and cable holdings. Even though there has been no change in ownership, the Post-Gazette was regarded as generally liberal for most of its recent history. Indeed, the late right-wing financier Richard Mellon Scaife, a conspiracy theorist who promoted the false story that Hillary Clinton was involved in the death of Vincent Foster, launched the Pittsburgh Tribune-Review to provide a conservative alternative to the Post-Gazette.
In recent years, though, John Block, known as “J.R.,” has become increasingly enamored of President Trump, turning the Post-Gazette into a right-wing mouthpiece. In a sense, the Pittsburgh newspaper war is now over, and Scaife won. Media ownership is haphazard, and it’s the luck of the draw as to whether a community is served by a civic-minded business leader, a cost-cutting corporate chain or — as appears to be the case in Pittsburgh — a family publisher who puts his personal politics above journalism.
As is the case in many cities, the newspaper economics of Pittsburgh have proved daunting. The Post-Gazette appears in print only three days a week — Thursday, Friday and Sunday — while relying on digital distribution the other four days. The Tribune-Review lives on, sort of, as a digital-only publication called TRIB Live.
At this point, the question for readers of the Post-Gazette is: What’s next? Much of the staff has risen up in revolt over the treatment accorded to Johnson, and management shows no sign of backing down. What happens in the days ahead will tell us a lot about the future of a once-excellent newspaper.
As Johnson put it in her interview with CNN: “The Post-Gazette has chosen to be on the wrong side of history.”
At least at the moment, I have little to add to the story of James Bennet’s departure as editorial-page editor of The New York Times beyond what Ben Smith of the Times, Tom Jones of the Poynter Institute and Jon Allsop of the Columbia Journalism Review have written, and what I wrote last week.
As Smith, Jones and Allsop point out, Bennet’s misguided decision to run Sen. Tom Cotton’s ugly commentary advocating violence against protesters should be seen as part of a larger story that encompasses Wesley Lowery’s unfortunate experience at The Washington Post, the resignation of Philadelphia Inquirer executive editor Stan Wischnowski over his paper’s horrendous “Buildings Matter, Too” headline, and the right-wing Pittsburgh Post-Gazette’s meltdown over Alexis Johnson, a Black reporter whom they claimed couldn’t be trusted to cover Black Lives Matter protests because of an innocuous tweet she had posted.
Because of the Times’ central place in our media culture, Bennet’s departure is the big story. As the coverage makes clear, Bennet lurched from one misstep to another during his time as editorial-page editor, so it would be a mistake to attribute his departure solely to the Cotton op-ed. I don’t think he ever fully recovered from his mishandling of a Bret Stephens column in which Stephens came very close to endorsing a genetic basis for intelligence.
Bennet will be replaced through the election on an interim basis by deputy editorial-page editor Katie Kingsbury, who won a Pulitzer when she was at The Boston Globe. Kingsbury is terrific, and I hope she’s given a chance to earn the job.
Finally, a semi-related incident involving the Globe. You may have seen this on the front of Sunday’s print edition:
There’s no question that the cover, which you can see here, would have been considered entirely inoffensive before a police officer killed George Floyd. Even now I’m not sure how many readers would have been outraged. Still, I think the Globe made the right call. An abundance of caution and sensitivity is what’s needed at the moment.