Jeffrey J.

Pyle
Direct Dial: 617-456-8143
jpyle@princelobel.com

September 13, 2019

VIA OVERNIGHT MAIL AND E-MAIL

Mayor Jim Kenney

c/o Jim Engler
City Hall, Office 215
Philadelphia, PA 19107

Re: Violation of First Amendment Rights of Philadelphia Magazine

Dear Mayor Kenney:

This office represents Metro Corp., the owner and publisher of Philadelphia magazine. I am writing
to request that you immediately rescind the retaliatory, burdensome, and unconstitutional restrictions
your administration has imposed on Philadelphia magazine’s ability to obtain news and information
from the City as set forth in an email from Deputy Communications Director Kelly Cofrancisco to
reporter Victor Fiorillo on September 4, 2019. Such singling-out of a media company for adverse
treatment based solely on the content of its journalism violates the First Amendment to the United
States Constitution and its guarantees of freedom of speech, freedom of the press, and freedom to
petition the government. It also violates Section 7 of the Commonwealth’s Declaration of Rights as
set out in Article One of the Pennsylvania Constitution (“no law shall ever be made to restrain the
right” of any person “to undertake to examine the proceedings of ... any branch of government”).

Under your administration’s newly announced policy, all employees of the City are forbidden from
answering any questions from Philadelphia magazine reporters. Instead, any request for information
by the magazine must be (1) made personally by Tom McGrath, the magazine’s editor-in-chief, (2)
posed directly to Jim Engler, your chief of staff, (3) approved by Mr. Engler, and (4) referred to the
appropriate department for a response. As Mr. Engler has acknowledged, this procedure will in
many cases result in the delay (or denial) of access to government information, to the detriment of
both the magazine and the public.

Your administration has candidly admitted that it imposed this new policy in response to Philadelphia
magazine’s August 28, 2019 article titled “The DROP Triple Dip: Philly Officials’ New Maddening
Way to Waste Your Money.” The article described how “retiring” ex-employees of the City receive
generous advance pensions including lump-sum payments in the hundreds of thousands of dollars
on their last day of work, collect pension payments after retirement, and then go back to performing
work for the City as independent contractors earning even more than they did as employees. The
article argues that this practice of “triple-dipping” amounts to “little more than a lavish taxpayer-
funded perk for certain city employees,” and it calls on you to demand a “full accounting” of the
program.
Mayor Jim Kenney
September 13, 2019
Page 2

The article includes ample comment by City. It notes that the employees’ receipt of pension
payments from the City’s “Deferred Retirement Option Plan” is perfectly legal, and repeatedly
mentions that the ex-employees’ post-retirement contracts are based on competitive bidding.
The article includes quotes from your spokesperson, Mike Dunn, defending the contracts as
necessary to remedy shortages of manpower and expertise within City government. Likely
because of the City’s cooperation in providing information for the article, no one in your
administration has pointed to any factual error in the story. Accordingly, Mr. Engler’s attempt in
his recent statement to the magazine to justify the new policy on the ground that the DROP
story lacked “fairness” and “sensationaliz[ed]” the issue is mystifying.

Putting aside the lack of merit to Mr. Engler’s complaints, it is unlawful for your administration to
deny or delay the magazine’s access to the news based on dislike of its coverage. The First
Amendment “prohibits government officials,” including city mayors, “from subjecting an
individual to retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256
(2006); Perry v. Sindermann, 408 U.S. 593, 597 (1972) (government may not punish a person
or deprive him of a benefit on the basis of his “constitutionally protected speech”). Even where a
person or company “has no ‘right’ to a valuable governmental benefit, and even though the
government may deny him the benefit for any number of reasons, there are some reasons,”
including the lawful exercise of First Amendment rights, “upon which the government may not
rely.” Perry, 408 U.S. at 597.

Any other rule would contravene our “profound national commitment to the principle that debate
on public issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials.” N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964). Simply put, the powers of a
municipality do not include suppressing “[t]he sort of robust political debate encouraged by the
First Amendment”—debate that is “bound to produce speech that is critical of those who hold
public office.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988).

The courts have applied these core First Amendment principles in many cases where
government officials attempted to single out disfavored news outlets for punishment. For
example, in Times-Picayune Pub. Corp. v. Lee, 15 Media L. Rep. 1713 (E.D.La. Apr. 15, 1988),
a Louisiana Sheriff decreed that his office “would not respond to any questions from Times–
Picayune reporters, including questions concerning the activities of the Jefferson Parish
Sheriff's Office or crimes in Jefferson Parish, unless the questions were submitted in writing to
the Jefferson Parish Sheriff's Office Public Information Officers.” Like your new directive, the
edict in Lee forced the reporters “to obtain even the most routine information about the Jefferson
Parish Office and crime in Jefferson Parish by the time-consuming process of written requests
for information,” a process that takes “minutes to hours to days, in the sole discretion of the
Sheriff and his public information officers.” The court held that this discriminatory policy was
unconstitutional because it amounted to content regulation that did not “further a compelling
state interest,” as required, nor was it “the least restrictive means of achieving a legitimate state
purpose.” Id.
Mayor Jim Kenney
September 13, 2019
Page 3

Here, your administration’s policy does far more to burden First Amendment rights than the
practice struck down in Lee. For one thing, it applies to any arm of the City government, from
building inspections to trash removal—not just the police. For another, it arbitrarily requires
editor-in-chief Tom McGrath (like Mr. Engler, a very busy person) to make every request. Such
a requirement serves no legitimate City interest—it simply burdens and inconveniences the
magazine’s top leadership, and delays the public’s access to the news.1

Other cases have similarly held that government officials cannot selectively bar or restrict
particular publications from covering the news. Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977)
(White House could not exclude reporter from press facilities absent compelling reason);
American Broadcasting Companies, Inc. v. Cuomo, 570 F.2d 1080, 1083 (2nd Cir. 1977) (ABC
could not be denied access to post-election activities at candidate headquarters where other
media present); Borreca v. Fasi, 369 F. Supp. 906, 907-908 (D. Haw. 1974) (enjoining policy
that prohibited newspaper reporter from attending press conferences open to all other media);
Stevens v. New York Racing Ass' n, Inc., 665 F. Supp. 164, 175 (E.D.N.Y. 1987) (granting
preliminary injunction where photojournalist was prohibited from bringing his camera into the
racetrack paddock areas that were otherwise open to all other journalists); United Teachers of
Dade v. Stierheim, 213 F. Supp. 2d 1368 (S.D. Fla. 2002) (preliminary injunction granted to
union publication to permit it access to press room to cover school board
meetings); Westinghouse Broadcasting Co. v. Dukakis, 409 F. Supp. 895 (D. Mass. 1976) (city
council meetings); Telemundo of Los Angeles v. City of Los Angeles, 283 F. Supp. 2d 1095,
1102 (C.D. Cal. 2003) (ceremony commemorating Mexican War). As these cases demonstrate,
your administration’s discriminatory and retaliatory policy is flatly unconstitutional.

To be sure, members of the news media are “subject to criticism, and the right of a
governmental official to criticize is within First Amendment guarantees.” However, “when
criticism transforms into an attempt to use the powers of governmental office to intimidate or to
discipline the press or one of its members because of what appears in print, a compelling
governmental interest that cannot be served by less restrictive means must be shown for such
use to meet Constitutional standards.” Borreca, 369 F. Supp. at 910; see also Reed v. Town of
Gilbert, Ariz., 135 S. Ct. 2218, 2226 (2015) (content-based and viewpoint-based restrictions “are
presumptively unconstitutional and may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests”); Knight First Amend. Inst. v. Trump, 302 F.
Supp. 3d 541, 575 (S.D.N.Y. 2018) (noting that when the President blocked Twitter users who
disagreed with him, those users “indisputably [were] blocked as a result of viewpoint
discrimination”).

1
The new policy would impermissibly burden Philadelphia magazine’s right to cover the news
even if Mr. Engler never denies a request for information. The delay that is a necessary
consequence of this policy is itself a serious harm. Nebraska Press Ass’n v. Stuart, 427 U.S.
539, 561 (1976) (“As a practical matter . . . the element of time is not unimportant if press
coverage is to fulfill its traditional function of bringing news to the public promptly.”); Nebraska
Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, J., in chambers) (where
“suppressed information grows older . . . [o]ther events crowd upon it. To this extent, any First
Amendment infringement that occurs with each passing day is irreparable.”)
Mayor Jim Kenney
September 13, 2019
Page 4

In 1737, Benjamin Franklin observed that republics like ours “derive their strength and vigour
from a popular examination into the actions of the magistrates.” While this privilege may be
“abused,” a public servant “who sincerely aims at the good of society, will always have the
inclinations of a great majority on his side, and an impartial posterity will not fail to render him
justice.” Franklin concluded:

Upon the whole, to suppress inquiries into the administration is good policy in an
arbitrary government; but a free constitution and freedom of speech, have such a
reciprocal dependence on each other, that they cannot subsist without consisting
together.

Benjamin Franklin, “On Freedom of Speech and the Press,” Pennsylvania Gazette (Nov. 17,
1737). We suggest that your administration harken to the words of this great Philadelphian, and
drop its effort to “suppress inquiries into the administration” of the City.

If necessary, Metro Corp. stands ready to seek redress in any appropriate forum for your
administration’s violation of its First Amendment rights. To that end, please let me know by the
end of business on Tuesday, Sept. 17, whether the City will rescind this ill-conceived practice.

Sincerely,

Jeffrey J. Pyle

cc: Marcel S. Pratt, Esq.