Bartley v. Taylor

Filing 54

MEMORANDUM (Order to follow as separate docket entry) re 36 MOTION for Summary Judgment filed by Sharon Taylor. Signed by Honorable Matthew W. Brann on 6/11/14. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TODD BARTLEY,
Plaintiff,
v.
SHARON TAYLOR,
Defendant.

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Civil Action No. 4:11-CV-1458
(Judge Brann)

MEMORANDUM
June 11, 2014
I. BACKGROUND:
As life imitates art1, so too may life imitate sport. Here, the parties are
wrestling over competing interests in the First Amendment to the United States
Constitution; namely, Plaintiff’s right to free speech against Defendant’s right to
petition the government for redress of grievances (inter alia). For the reasons that
follow, the Court holds that there is no adverse impact on Plaintiff’s right to free
speech. Accordingly, Defendant’s motion for summary judgment will be granted
and this case will be dismissed.
On August 8, 2011, Plaintiff, Todd Bartley (hereinafter “Bartley”), kicked-

The full quote reads, “Life imitates art, more than art imitates life.” Oscar

1

Wilde.
1

off (to use the sports lexicon, which the court will employ in this opinion as sports
lexicon is part of both Bartley’s and Taylor’s wheelhouse) the instant action by
filing a complaint against Defendant, Sharon Taylor (hereinafter “Taylor”), in the
United States District Court for the Middle District of Pennsylvania. ECF No. 1.
Bartley is a sports reporter for, and the general manager of, ESPN 1050, a
radio station in Williamsport, Pennsylvania. Bartley has reported on the
performance of Taylor, the (at the time of the events in question) Athletic Director
for Lock Haven University (hereinafter “LHU”), in Lock Haven, Pennsylvania. In
the complaint, Bartley alleges that Taylor engaged in a course of conduct to
retaliate against Bartley for his critical reporting of Taylor’s job performance.
Specifically, Bartley alleges that Taylor retaliated against him by
refusing Plaintiff opportunities to broadcast Lock Haven University
sports, the filing of a frivolous lawsuit against Plaintiff, contacting
individuals at ESPN headquarters in Bristol, Connecticut, in an effort to
silence Plaintiff and harm his career; directing her staff not to
communicate with Plaintiff; attempting to circumvent Pennsylvania’s
Right to Know Act by directing her staff to communicate via handwritten
or type-written notes rather than emails; attempting to charge broadcast
fees for NCAA events when she had no authority to do so; denying
Plaintiff a meaningful opportunity to respond to a request for proposal
to broadcast Lock Haven University sporting events in violation of state
rules and regulations; not selecting ESPN 1050 Williamsport to
broadcast Lock Haven University sports despite the fact that it offered
the best and highest value; and preventing Plaintiff from establishing an
internship program at Lock Haven University.
ECF No. 1 at 2-3.
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The complaint alleges four counts, Count I, First Amendment retaliation in
violation of 42 U.S.C. § 1983; Count II, Wrongful Use of Civil Proceedings; Count
III, Injurious Falsehood-Disparagement; Count IV, Defamation. Before discovery
was conducted, Defendant filed a partial motion for summary judgment which was
decided by (former Chief) Judge Yvette Kane, to whom this matter was previously
assigned. Judge Kane dismissed the three state law claims because these counts
were barred by the doctrine of sovereign immunity. Judge Kane did not dismiss
Count I, stating that genuine issues of material fact preclude the Court from
determining if the first count should be dismissed.2
The parties then engaged in discovery, during which time the case was
reassigned to the undersigned. On August 20, 2013, Defendant filed a motion for
summary judgment which has been fully briefed and is now ripe for disposition.
ECF No. 36.
Today this Court holds that as a matter of law that there was no adverse
impact on Plaintiff’s First Amendment right to speech, and accordingly,

Plaintiff argues that the allegations in this count must be held over for trial
because of Judge Kane’s prior decision. The undersigned respectfully disagrees.
Judge Kane denied the prior motion for summary judgment without prejudice
stating that genuine issues of material fact exist. ECF No. 20 at 8. Now that
discovery has been completed and the undisputed facts have been set forth by the
parties, this matter is now ripe for disposition and dismissal.
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defendant’s motion for summary judgment will be granted and final judgment
entered in favor of defendant and against plaintiff.3
II. DISCUSSION:
A. Undisputed Facts
Viewing the facts in the light most favorable to the non-moving party,
Bartley, the facts, in chronological summary, are as follows.
Bartley is the general manager and lead investigative sports reporter for
ESPN 1050, a radio station in Williamsport, Pennsylvania. ESPN 1050 is owned
by the Colonial Radio Group of Williamsport. Bartley operates, but does not own,
ESPN 1050. ESPN 1050 has an affiliation agreement with ESPN headquartered in
Bristol, Connecticut. ESPN 1050 pays ESPN for the affiliation. The agreement
between ESPN and ESPN 1050 “spells out what programming ESPN will provide
ESPN Williamsport and what ESPN Williamsport’s obligation is to clear that
programming. That’s as far as the agreement goes.” ECF No. 37 at 2 ¶ 5.
Taylor served as the Athletic Director of Lock Haven University in Lock
Haven, Pennsylvania, between the years 1988 and 2012.

As will be discussed infra, this determination is one the Court may make as
a matter of law. See The Baltimore Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir.
2006) (“Because our analysis of the adverse impact is objective, it can be resolved
as a matter of law”).
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On May 12, 2009, Bartley emailed Troy M. Miller, who, according to
Bartley’s statement of facts, was employed by the LHU Foundation as director of
Athletics Development. ECF No. 48 at 2, ¶ 10. Bartley emailed Miller to offer to
carry the feed of a broadcast of softball regional championships. Miller referred
Bartley to Taylor. Taylor responded to Bartley’s email with an email that stated
“the position we have taken in athletics is that there should be a fee for our
product.” Bartley then emailed someone at the National Collegiate Athletics
Association (“NCAA”) who responded that the rights to the sporting event are the
sole property of the NCAA and LHU may not charge a broadcasting fee.
In June 2009, another LHU employee called Taylor to advise her that a
broadcaster on a sports program titled The Locker Room was “bashing” LHU
athletics. ECF No. 37 at 7, ¶ 29. Taylor listened to a “link to the program” (the
court presumes that this refers to an audio recording of a previously aired
program). ECF No. 37 at 7, ¶ 30. This was the first time Taylor had heard
Bartley’s broadcast. There was no guest on the program; only Bartley spoke.
Taylor believed the statements Bartley made were both negative and incorrect.
During the show, Bartley discussed an organization called Preserve the Legacy of
Wrestling (hereinafter “PLOW”), which has also been critical of LHU athletics and
Taylor.
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Shortly after Taylor listened to the aforementioned broadcast, Bartley
submitted a ‘right to know’ request for Taylor’s emails. Spurred by the right to
know request, Taylor emailed her staff. In that email, she stated that Bartley “has
been working closely with the PLOW group that has set out to have [] me removed
from the athletics department.” She further wrote, “Therefore if there is anything
that you need to send to me or give to me that you do not want to have edited and
used in some negative or twisted way on the local ESPN radio or web, DO NOT
SENT IT TO ME ON THE COMPUTER OR VIA EMAIL.” ECF No. 37 at 8, ¶¶
34 and 36 (emphasis in original). Bartley ultimately was supplied with this email.
On June 9, 2009, Taylor, along with another LHU employee, listened to
another broadcast by Bartley. Bartley reviewed the aforementioned email written
by Taylor. According to an admitted statement of fact,
Bartley backs the statements which Taylor stated were in PLOW’s power
point presentation, including that there was a problem with
accountability, that Lock Haven had the second highest paid athletic
department staff which was not producing results, that athletic program
deficiencies needed to be corrected, that fund-raising drops could be
directly attributed to the lack of leadership, and that people were
increasingly disappointed in the athletic records.
ECF No. 37 at 9, ¶ 40. In that same broadcast, Bartley stated,
This lady of 22 years has systematically in her position, and again, if her
name was Max Taylor, this guy has chased off anybody that even
whispers a decenting [sic] opinion to make LHU athletics better. You
know, I remember somebody my grandparents told me about that you
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watch on the History channel that used to do that and they called it the
Allies and the allies had to go in and push this gentleman back. That’s
the kind of mentality you’re dealing with right now. Someone needs to
go in and push this lady back and say enough is enough. We’ve had
enough.
ECF No. 37 at 10 ¶ 41. In several of Bartley’s shows he suggested that Taylor
should be fired. On June 15, 2009, Bartley sent an email to the Lock Haven
Council of Trustees that included critical remarks about Taylor.
On June 20, 2009, Taylor saw Carol Stiff, a senior director for programming
and acquisitions from ESPN headquarters in Bristol Connecticut, at a dinner event.
Taylor discussed ESPN Williamsport with Stiff. Taylor then emailed Stiff on June
23 and 27, 2009 with complaints about Bartley. Stiff called Taylor and advised
Taylor that Bartley was not related to ESPN.
Taylor’s complaints to Stiff about Bartley had no effect on Bartley. Stiff
never contacted Bartley. In fact, “[n]o one has ever called Bartley and told him that
his agreement with ESPN was in jeopardy.” ECF No. 37 at 11, ¶ 48.
Additionally, on July 12, 2009, PLOW published a pamphlet about LHU
which included statements about Taylor that she believed to be false.
In the summer of 2009, William Hanelly, the Vice President for Finance and
Administration, along with Becky Proctor, the Director of Procurement, worked
together to develop a business plan for radio coverage. At some point in 2009,
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Bartley solicited LHU to offer ESPN 1050's services to broadcast LHU’s sporting
events. Hanelly, with Taylor’s input decided not to accept Bartley’s offer. On July
30, 2009 Hanelly sent a letter to Bartley to inform him that LHU “decided not to
move forward at that point,” adding “[w]e may review broadcasting alternatives in
the future and solicit proposals at that time. We will certainly be in touch with you
in that case.” ECF No. 37 at 6, ¶ 25. Hanelly testified that the unfavorable
opinions broadcast on ESPN 1050 were not a consideration Hanelly took into
account in rejecting Bartley’s offer.
On October 28, 2009, PLOW published another publication with statements
about Taylor that she, again, believed to be false. Taylor believed, mistakenly, that
Bartley was a member of PLOW because she had seen emails addressed to PLOW
members that also included Bartley’s name as one of the email addressees. As it
turned out, Bartley’s name was on the email distribution list because in April 2009
he had requested that his name be added to the email distribution list. The PLOW
member who added Bartley to the PLOW distribution list wrote “Todd Bartley of
Williamsport’s ESPN Radio wants to be included in PLOW loop. He is working to
get the Taylor agenda exposed.” ECF No. 38-4 at 4.
In November 2009, ESPN 1050 published an article, written by Bartley, on
it’s website titled “Taylor and LHU Lose Another Court Battle.” The headline was
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misleading, as Taylor was never a party to the litigation referred to in the article.
In December 2009, Taylor filed a lawsuit in the Court of Common Pleas of
Clinton County, Pennsylvania. The lawsuit was against PLOW, Bartley, and other
individuals, based in relevant part, on the publications by PLOW and the
aforementioned “Taylor and LHU Lose Another Court Battle” article. The counts
alleged against Bartley were libel per se, intentional infliction of emotional distress
and conspiracy. Taylor voluntarily dismissed all counts against Bartley except for
libel per se for publication of the “Taylor and LHU Lose Another Court Battle”
article and the conspiracy count. The Clinton County Court of Common Pleas
subsequently dismissed both of these counts on summary judgment.
On June 11, 2011, LHU received a proposal from Bartley to broadcast
athletic events. Other stations also made proposals. Accordingly to Bartley,
Taylor was involved in the discussions that awarded the broadcast contract to
another radio station.
In addition to this chronology, Bartley requested interviews from Taylor
several times.4 Taylor never accepted the offer to be interviewed by Bartley.
However, Bartley conceded that it is not uncommon for people to decline an

This fact is disputed, thus is viewed in the light most favorable to the nonmoving party, Bartley. ECF No. 37 at 13 ¶ 50 and ECF No. 48 at 7 ¶ 50.
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interview; he has had people refuse to comment throughout his broadcast career.
B. Standard of Review:
1. Summary Judgment
Summary judgment is appropriate if the record establishes "that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden
of demonstrating the absence of a genuine issue of material fact. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The
movant meets this burden by pointing to an absence of evidence supporting an
essential element as to which the non-moving party will bear the burden of proof at
trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to
the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P.
56(e). An issue is "genuine" only if there is a sufficient evidentiary basis for a
reasonable jury to find for the non-moving party, and a factual dispute is "material"
only if it might affect the outcome of the action under the governing law. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986).
In opposing summary judgment, the non-moving party "may not rely
merely on allegations or denials in its own pleading; rather its response must … set
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out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The
non-moving party "cannot rely on unsupported allegations, but must go beyond
pleadings and provide some evidence that would show that there exists a genuine
issue for trial." Jones v. United Parcel Service, 214 F.3d 402, 407 (3d Cir. 2000).
Arguments made in briefs "are not evidence and cannot by themselves create a
factual dispute sufficient to defeat a summary judgment motion." Jersey Cent.
Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
However, the facts and all reasonable inferences therefrom must be viewed in the
light most favorable to the non-moving party. P.N. v. Clementon Bd. of Educ., 442
F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement
about the facts or the proper inferences that a factfinder could draw from them.
Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the
mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; there must be a
genuine issue of material fact to preclude summary judgment." Anderson, 477 U.S.
at 247-48.
2. 42 U.S.C. § 1983:
In order for plaintiffs to prevail under § 1983 they must establish two
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elements: first, that the conduct complained of was committed by a person acting
under color of state law; and second, that the conduct deprived the plaintiff of
rights, privileges, or immunities secured by the Constitution or laws of the United
States. See Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). Defendant does
not dispute that the conduct complained of was committed by a person acting
under color of state law. Defendant disputes the second element that establishes a
claim under §1983; she argues that plaintiff was not deprived of the rights,
privileges or immunities secured by the Constitution or laws of the United States.
C. Analysis:
The First Amendment to the United States Constitution protects citizens
right to speech.5 Accordingly, the government may not retaliate when our citizens
exercise their Constitutionally protected rights.
“The First Amendment right to free speech includes not only the affirmative
right to speak, but also the right to be free from retaliation by a public official for
the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th

It is important to note, however, for the lay reader of this opinion, that this
right is not absolute. “[T]he Supreme Court never has accepted the view that the
First Amendment prohibits all government regulation of expression.” ERWIN
CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES THIRD EDITION
(Aspen Publishers 2006), and see Konigsberg v. State Bar of California, 366 U.S.
36; 81 S. Ct. 997; 6 L. Ed. 2d 105 (1960).
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Cir. 2000), See ACLU v. Wicomico County, Md., 999 F.2d 780, 785 (4th Cir. 1993)
("Retaliation, though it is not expressly referred to in the Constitution, is
nonetheless actionable because retaliatory actions may tend to chill individuals'
exercise of constitutional rights."); see also Pickering v. Board of Educ., 391 U.S.
563, 574, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968) (noting that retaliatory acts are
"a potent means of inhibiting speech"). “Because government retaliation tends to
chill an individual's exercise of his First Amendment rights, public officials may
not, as a general rule, respond to an individual's protected activity with conduct or
speech even though that conduct or speech would otherwise be a lawful exercise of
public authority.” Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 415-416 (4th Cir.
2006), citing Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 674, 116 S. Ct.
2342, 135 L. Ed. 2d 843 (1996); Suarez Corp. Indus. v. McGraw, 202 F.3d 676,
685 (4th Cir. 2000); see also Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct.
2694, 33 L. Ed. 2d 570 (1972) ("If the government could deny a benefit to a person
because of his constitutionally protected speech or associations, his exercise of
those freedoms would in effect be penalized and inhibited"). “Thus, by engaging
in retaliatory acts, public officials place informal restraints on speech "allowing the
government to 'produce a result which [it] could not command directly.'” Suarez
Corp. Indus., 202 F.3d at 685. “Such interference with constitutional rights is
13

impermissible."” Id. citing Perry v. Sindermann, 408 U.S. 593, 597, 33 L. Ed. 2d
570, 92 S. Ct. 2694 (1972) (alterations in original) (citation omitted).
Retaliation claims began in the public employment context to protect
employees from being punished by their government employer for their speech.
See Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 586 (6th Cir. 2008), cert.
denied, 128 S. Ct. 2445 (2008), and see Pickering v. Bd. of Educ. of Twp. High
Sch. Dist. 205, 391 U.S. 563; 88 S. Ct. 1731; 20 L. Ed. 2d 811 (1968) (the seminal
case on public employee First Amendment speech rights), and see Garcetti v.
Ceballos, 547 U.S. 410; 126 S. Ct. 1951; 164 L. Ed. 2d 689 (2006). Jenkins was
the first case to expand First Amendment retaliation claims from the public
employment context to a viable cause of action for private citizens.
“A retaliation claim under 42 U.S.C. § 1983 must establish that the
government responded to the plaintiff's constitutionally protected activity with
conduct or speech that would chill or adversely affect his protected activity.” Balt.
Sun Co., 437 F.3d at 416, citing Constantine v. Rectors and Visitors of George
Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005); ACLU v. Wicomico County, 999
F.2d 780, 785 (4th Cir. 1993). “The determination of whether government
conduct or speech has a chilling effect or an adverse impact is an objective one -we determine whether a similarly situated person of "ordinary firmness"
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reasonably would be chilled by the government conduct in light of the
circumstances presented in the particular case.” Balt. Sun Co., 437 F.3d at 416,
citing Constantine, 411 F.3d at 500; Wicomico County, 999 F.2d at 786; see also
Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999) (tailoring adverse impact
analysis to specific circumstances presented). “Because our analysis of the adverse
impact is objective, it can be resolved as a matter of law.” Balt. Sun Co., 437 F.3d
at 416.
“Illustrating the observation that "not every [government] restriction is
sufficient to chill the exercise of First Amendment rights," we have recognized a
distinction between an adverse impact that is actionable, on the one hand, and a de
minimis inconvenience, on the other.” Balt. Sun Co., 437 F.3d at 416. “Rather, a §
1983 retaliation plaintiff must demonstrate that the defendant's actions had some
adverse impact on the exercise of the plaintiff's constitutional rights.” Suarez
Corp. Indus., 202 F.3d at 685, See Wicomico County, 999 F.2d at 785 ("In order to
state a retaliation claim, Appellees are required to show that WCDC's actions
adversely impacted these First Amendment rights."). “[W]e must measure the
adverse impact against an objectively reasonable plaintiff.” Balt. Sun Co., 437
F.3d at 419. “To amount to retaliation, the conduct must be "sufficient to deter a
person of ordinary firmness from exercising his First Amendment rights."” Mun.
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Revenue Servs., Inc. v. McBlain, 347 Fed. Appx. 817, 824 (3d Cir. 2009)
(unpublished) citing McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006).
“In a proximate vein, the Supreme Court has condoned limiting retaliation
liability when the challenged government action, whether conduct or speech, is so
pervasive, mundane, and universal in government operations that allowing a
plaintiff to proceed on his retaliation claim would "plant the seed of a
constitutional case" in "virtually every" interchange.” Balt. Sun Co., 437 F.3d at
416, citing Connick v. Myers, 461 U.S. 138, 148-49, 103 S. Ct. 1684, 75 L. Ed. 2d
708 (1983); see also id. at 143 (holding that, in the government employment
context, public employers can reprimand or punish employees for their speech
when that speech does not touch on matters of public concern); Kirby v. City of
Elizabeth City, 388 F.3d 440, 448-49 (4th Cir. 2004); cf. Umbehr, 518 U.S. at 675
(noting that retaliation "may be justified [i.e., unactionable] when legitimate
countervailing government interests are sufficiently strong"). “Thus, the Connick
Court recognized that the retaliation cause of action must be administered to
balance governmental and private interests so as not to impose liability in
everyday, run-of-the-mill encounters.” Balt. Sun Co., 437 F.3d at 416. “[A] public
official’s malicious intent, taken alone, cannot amount to a retaliatory response.”
Id. at 420. “The plaintiff in a retaliation case must challenge adverse conduct or
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speech.” Id. citing Constantine, 411 F.3d at 500 (repeating that retaliation claims
challenge government “conduct”).
“Illustrating the second DiMeglio (DiMeglio v. Haines, 45 F.3d 790 (4th Cir.
1995) observation that not "every restriction [is] actionable, even if retaliatory," we
have recognized that some government actions, due to their nature, are not
actionable even if they satisfy all the generally articulated elements of a retaliation
claim.” Balt. Sun Co., 437 at 416-417. “When the challenged government action
is government speech, there is no retaliation liability -- even if the plaintiff can
demonstrate a substantial adverse impact -- unless the government speech concerns
"private information about an individual" or unless it was "threatening, coercive, or
intimidating so as to intimate that punishment, sanction, or adverse regulatory
action will imminently follow."” Id. at 417, citing Suarez, 202 F.3d at 689. “Other
courts, likewise, have held that there is no retaliation when the government's
alleged retaliatory action was government speech.” Balt. Sun Co., 437 F.3d at 417
citing, Benningfield v. City of Houston, 157 F.3d 369, 376-77 (5th Cir. 1998);
Harrington v. Harris, 118 F.3d 359, 366 (5th Cir. 1997); accord Kirby, 388 F.3d at
450 n. 8. “This limitation on the retaliation cause of action based on government
speech is necessary to balance the government's speech interests with the plaintiff's
speech interests.” Balt. Sun. Co., 437 F.3d at 417, citing Suarez, 202 F.3d at
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688-89.
“Determining whether a plaintiff's First Amendment rights were adversely
affected by retaliatory conduct is a fact intensive inquiry that focuses on the status
of the speaker, the status of the retaliator, the relationship between the speaker and
the retaliator, and the nature of the retaliatory acts.” Suarez Corp. Indus., 202 F.3d
at 686, See Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999) ("The
definition of adverse action is not static across contexts.").
As Judge Hamilton wrote for the Suarez court:
Just as the nature of the retaliatory acts impacts whether a public
employee's First Amendment rights were adversely affected, so too the
nature of the retaliatory acts impacts whether those acts are actionable
when a private citizen is the speaker and a public official is the retaliator.
For example, a public official who restricts the award of or terminates
public benefits based on the citizen's exercise of his First Amendment
rights adversely affects that citizen's First Amendment rights. See, e.g.,
Board of County Comm'rs v. Umbehr, 518 U.S. 668, 686, 135 L. Ed. 2d
843, 116 S. Ct. 2342 (1996) (holding that the termination of a garbage
contract constituted retaliation for an independent contractor's exercise
of freedom of speech); Sherbert v. Verner, 374 U.S. 398, 409-10, 10 L.
Ed. 2d 965, 83 S. Ct. 1790 (1963) (holding that retaliation existed where
the government denied unemployment benefits to a person whose
religion precluded her from accepting a job that required her to work on
Saturdays). The same officials, however, are obviously permitted to
require the government contractor to submit documentation that no
public funds were spent on espousing political views, or to require a
person seeking unemployment benefits to fill out an additional form
explaining why she cannot work on Saturdays.
The nature of the alleged retaliatory acts has particular significance
where the public official's acts are in the form of speech. Not only is
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there an interest in having public officials fulfill their duties, a public
official's own First Amendment speech rights are implicated. Thus,
where a public official's alleged retaliation is in the nature of speech, in
the absence of a threat, coercion, or intimidation intimating that
punishment, sanction, or adverse regulatory action will imminently
follow, such speech does not adversely affect a citizen's First
Amendment rights, even if defamatory. See X-Men Sec., Inc. v. Pataki,
196 F.3d 56, 1999 WL 993442, at *14 (2d Cir. 1999) (to be reported at
196 F.3d 56) (holding that, in the absence of threats, intimidation, or
coercion, legislators' "disparaging, accusatory, or untrue statements
about X-Men fail to state a claim for violation of X-Men's constitutional
rights"); Colson v. Grohman, 174 F.3d 498, 512 (5th Cir. 1999) (holding
that a citizen's First Amendment rights were not adversely affected
because she had "alleged only that she was the victim of criticism, an
investigation (or an attempt to start one), and false accusations: all harms
that, while they may chill speech, are not actionable under our First
Amendment retaliation jurisprudence"); Penthouse Int'l Ltd. v. Meese,
291 U.S. App. D.C. 183, 939 F.2d 1011, 1015-16 (D.C. Cir. 1991)
(holding that public officials were entitled to qualified immunity for
criticism they leveled at publishers of pornography and noting that "the
Supreme Court has never found a government abridgment of First
Amendment rights in the absence of some actual or threatened imposition
of governmental power or sanction"); R.C. Maxwell Co. v. Borough of
New Hope, 735 F.2d 85, 89 (3d Cir. 1984) (holding that a borough that
sent letters to a landowner encouraging, but not threatening, intimidating,
or coercing, the landlord to terminate its leases with a billboard owner
did not violate the billboard owner's First Amendment rights where the
landowner terminated the leases in order to curry favor with the
borough); Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33, 38-39
(2d Cir. 1983) (holding that a public official who sent letters to retail
stores requesting that they refrain from selling a controversial board
game did not violate the board game manufacturer's First Amendment
rights, and declaring that to rise to the level of conduct that violates free
speech rights, a public official's comments must "reasonably be
interpreted as intimating that some form of punishment or adverse
regulatory action will follow the failure to accede to the official's
request"); Thomas v. Hickel, 947 P.2d 816, 821 (Alaska 1997)
(concluding that the First Amendment protects an official's right to speak
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truthfully in response to criticism even if the official's speech is
retaliatory and stating, "We do not believe that imposing section 1983
liability on a public official who responds in kind to protected speech
critical of the official would be consistent with the First Amendment.");
cf. Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 68, 9 L. Ed. 2d 584, 83
S. Ct. 631 (1963) (finding a constitutional violation where a Rhode
Island Commission's conduct amounted to "thinly veiled threats to
institute criminal proceedings" against publishers who did not make
efforts to stop circulating publications on a list created by the
Commission); Gini v. Las Vegas Metro. Police Dept., 40 F.3d 1041,
1045 (9th Cir. 1994) (holding that defamation must be accompanied by
a harm to "some more tangible interests" to be actionable retaliation
(internal quotations omitted)). One possible exception to this rule is
where the retaliatory disclosure of information "relates to 'those personal
rights that can be deemed 'fundamental' or 'implicit in the concept of
ordered liberty.'"; that is, the resulting injury caused by the disclosure of
the information in retaliation for engaging in protected conduct is
sufficiently embarrassing, humiliating, or emotionally distressful. See
Bloch v. Ribar, 156 F.3d 673, 681 (6th Cir. 1998) (holding that a sheriff's
publication of the explicit details of a rape in retaliation for the rape
victim's criticism of the sheriff was sufficiently adverse to "chill people
of ordinary firmness"). This aspect of the contextual analysis, however,
has been limited to cases in which the public official has disclosed
damaging information about an individual. See Mattox v. City of Forest
Park, 183 F.3d 515, 521 n.3 (6th Cir. 1999) ("Analysis of retaliation
cases under the First Amendment is distinct, and the effect of public
disclosure of damaging information about an individual may be enough
to trigger constitutional protection, as in Bloch and Barrett.").
Suarez Corp. Indus., 202 F.3d at 686-688.
"In general, constitutional retaliation claims are analyzed under a three-part
test.” Mun. Revenue Servs., Inc. v. McBlain, 347 Fed. Appx. 817, 823 (3d Cir. Pa.
2009) (unpublished) citing Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d
20

Cir. 2004). “ Plaintiff must prove (1) that [it] engaged in constitutionally-protected
activity; (2) that the government responded with retaliation; and (3) that the
protected activity caused the retaliation." Id.
The dispute here does not center around the first or third elements. It is clear
that as a newscaster, the protected activity that Bartley participated in was speech.
Nor does Taylor argue that the third element is lacking in Bartley’s claims.6 The
dispute centers around the second element. Accordingly, the hurdle for Bartley to
jump is whether Taylor’s actions were retaliatory, in that the speech of a person of
ordinary firmness would be chilled? The Court concludes, in all nine points of
alleged retaliation, that the answer is no.
1., 7., and 8. Bartley alleges he was retaliated against because Taylor “refus[ed]
Plaintiff opportunities to broadcast Lock Haven University sports.” and because
Taylor “den[ied] Plaintiff a meaningful opportunity to respond to a request for
proposal to broadcast Lock Haven University sporting events in violation of state
rules and regulations.” and because Taylor did “not select[] ESPN 1050
Williamsport to broadcast Lock Haven University sports despite the fact that it
offered the best and highest value.”
Bartley’s first, seventh and eighth bases for a First Amendment retaliation
claim form a question left unanswered by the United States Supreme Court, and

Because Taylor does not argue the third element in her briefs, and because
the Court’s decision is based on the second element, the Court need not reach the
causal element today. Accordingly, today’s holding is based on the issue of “what
constitutes retaliation.” The issue of “causation” is not decided in this case.
6

21

which is the source of the start of a circuit split. The Supreme Court left open the
issue of whether an independent contractor without a preexisting relationship with
a governmental entity may bring a First Amendment retaliation claim when it is
awarded a government contract. The Supreme Court stated, “Finally, we emphasize
the limited nature of our decision today. Because Umbehr's suit concerns the
termination of a pre-existing commercial relationship with the government, we
need not address the possibility of suits by bidders or applicants for new
government contracts who cannot rely on such a relationship.” Bd. of Cnty.
Comm'rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 685, 116 S. Ct. 2342,
2352, 135 L. Ed. 2d 843 (1996)
The United States Court of Appeals for the Third Circuit has read Umbehr
narrowly and held that a suit by a bidder or applicant for a new government
contract without a preexisting relationship cannot state a First Amendment
retaliation claim.7 McClintock v. Eichelberger, 169 F.3d 812, 816 (3d Cir. 1999)
(holding that a marketing and advertising firm, and its principal shareholder, did
not have sufficiently ongoing relationship with regional planning and development

Specifically, the Third Circuit has cautioned that the lower courts should not
answer the question left open by the Supreme Court and extend the doctrine, and
that the decision on whether or not to expand the doctrine should be left to the
United States Supreme Court. McClintock, 169 F.3d at 817.
7

22

commission to support the firm's claim that the development commission violated
the First Amendment by refusing the firm's bid on a new contract in alleged
retaliation for the firm's support of certain political candidates, where the firm and
its shareholder had only two prior contracts with the development commission for
discrete services and, as vendor, supplied promotional materials to commission.)
(Roth, J. dissenting), see also Allstate Transp. Co., Inc. v. Southeastern Pa.
Transp. Auth., 2000 WL 329015 (E.D. Pa. March 27, 2000) (applying
McClintock), and see Prisma Zona Exploratoria de Puerto Rico, Inc. v. Calderon,
162 F. Supp. 2d 1 (D.P.R. 2001), but see Oscar Renda Contracting, Inc. v. City of
Lubbock, Tex., 463 F.3d 378 (5th Cir. 2006) (holding that the First Amendment
protects an independent contractor whose bid has been rejected by a city in
retaliation for the contractor's exercise of freedom of speech, even if the contractor
had no pre-existing commercial relationship with that city).
Consequently, this Court follows the clear direction of the Third Circuit in
not expanding the field of First Amendment retaliation claims made by private
citizens to bidders or applicants for a new government contract without a
preexisting relationship. The undersigned holds that these particular claims of
Bartley’s fail as a matter of law.
2. Bartley alleges he was retaliated against because Taylor “fil[ed] a frivolous
lawsuit against Plaintiff.”
23

Here, Bartley argues that he is currently suing Taylor because Taylor
previously sued him. Two different First Amendment rights intersect in this
allegation - the right to free speech versus the right to petition. The right to
petition has only recently been developed, and is not entirely refined. Based on
what has been developed to date, however, this Court finds that this allegation
must fail as well.
It is through the (relatively recent) “Noerr-Pennington” doctrine and its
progeny that the First Amendment right to petition the courts has been explored by
the United States Supreme Court. See Eastern Railroad Presidents Conference v.
Noerr Motor Freight Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961);
United Mine Workers v. Pennington, 381 U.S. 657, 669-671, 85 S.Ct. 1585,
1592-1594, 14 L.Ed.2d 626 (1965); California Motor Transp. Co. v. Trucking
Unlimited, 404 U.S. 508, 92 S. Ct. 609, 612, 30 L. Ed. 2d 642 (1972) (holding that
“[t]he right of access to the courts is indeed but one aspect of the right of
petition.”); Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731103 S.Ct. 216
(1973) (applying the right to petition outside the antitrust context); McDonald v.
Smith, 472 U.S. 479, 484, 105 S. Ct. 2787, 2791, 86 L. Ed. 2d 384 (stating in
dictum that filing a complaint in court is a form of petitioning activity; but
cautioning that baseless litigation is not immunized by the First Amendment right
24

to petition).
Construing the right to petition narrowly to only encompass the scope of the
right as has been heretofore defined outside of the antitrust context, it appears that
Taylor’s activity is protected in this action by the dictum stating that filing a
complaint in court is petitioning activity, so long as what she filed was not baseless
litigation. See McDonald, supra.
“Noerr...withheld immunity from sham activities...” Prof'l Real Estate
Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56, 113 S. Ct. 1920,
1926, 123 L. Ed. 2d 611 (1993). “[W]e...hold that an objectively reasonable effort
to litigate cannot be sham regardless of subjective intent.” Id. at 57. As Justice
Thomas wrote, at length, for the Columbia Pictures court:
[W]e have consistently assumed that the sham exception contains an
indispensable objective component. We have described a sham as
evidenced by repetitive lawsuits carrying the hallmark of insubstantial
claims. Otter Tail Power Co. v. United States, 410 U.S. 366, 380, 93
S.Ct. 1022, 1031, 35 L.Ed.2d 359 (1973) (emphasis added). We regard
as sham private action that is not genuinely aimed at procuring favorable
government action, as opposed to a valid effort to influence government
action. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S., at
500, n. 4, 108 S.Ct., at 1937, n. 4. And we have explicitly observed that
a successful effort to influence governmental action ... certainly cannot
be characterized as a sham. Id., at 502, 108 S.Ct., at 1938. See also
Vendo Co. v. LektroVend Corp., 433 U.S. 623, 645, 97 S.Ct. 2881, 2894,
53 L.Ed.2d 1009 (1977) (BLACKMUN, J., concurring in result)
(describing a successful lawsuit as a genuine attemp[t] to use the ...
adjudicative process legitimately rather than a pattern of baseless,
repetitive claims' ). Whether applying Noerr as an antitrust doctrine or
25

invoking it in other contexts, we have repeatedly reaffirmed that
evidence of anticompetitive intent or purpose alone cannot transform
otherwise legitimate activity into a sham. See, e.g., FTC v. Superior
Court Trial Lawyers Assn., 493 U.S. 411, 424, 110 S.Ct. 768, 775, 107
L.Ed.2d 851 (1990); NAACP v. Claiborne Hardware Co., 458 U.S. 886,
913, 914, 102 S.Ct. 3409, 3426, 73 L.Ed.2d 1215 (1982). Cf. Vendo,
supra, 433 U.S., at 635, 636, n. 6, 639, n. 9, 97 S.Ct., at 2889, 2890, n.
6, 2891 n. 9 (plurality opinion of REHNQUIST, J.); id., at 644, n., 645,
97 S.Ct., at 2894, n., 2894 (BLACKMUN, J., concurring in result).
Indeed, by analogy to Noerr's sham exception, we held that even an
improperly motivated lawsuit may not be enjoined under the National
Labor Relations Act as an unfair labor practice unless such litigation is
baseless. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743,
744, 103 S.Ct. 2161, 2170, 2171, 76 L.Ed.2d 277 (1983). Our decisions
therefore establish that the legality of objectively reasonable petitioning
directed toward obtaining governmental action is not at all affected by
any anticompetitive purpose [the actor] may have had. Noerr, 365 U.S.,
at 140, 81 S.Ct., at 531, quoted in Pennington, supra, 381 U.S., at 669,
85 S.Ct., at 1593.
Our most recent applications of Noerr immunity further demonstrate that
neither Noerr immunity nor its sham exception turns on subjective intent
alone. In Allied Tube, supra, 486 U.S., at 503, 108 S.Ct., at 1938, and
FTC v. Trial Lawyers, supra, 493 U.S., at 424, 427, and n. 11, 110 S.Ct.,
at 775, 777, and n. 11, we refused to let antitrust defendants immunize
otherwise unlawful restraints of trade by pleading a subjective intent to
seek favorable legislation or to influence governmental action. Cf.
National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla.,
468 U.S. 85, 101, n. 23, 104 S.Ct. 2948, 2960, n. 23, 82 L.Ed.2d 70
(1984) (“ [G]ood motives will not validate an otherwise anticompetitive
practice”). In Columbia v. Omni Outdoor Advertising, Inc., 499 U.S.
365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991), we similarly held that
challenges to allegedly sham petitioning activity must be resolved
according to objective criteria. We dispelled the notion that an antitrust
plaintiff could prove a sham merely by showing that its competitor's
purposes were to delay [the plaintiff's] entry into the market and even to
deny it a meaningful access to the appropriate ... administrative and
legislative fora. Id., at 381, 111 S.Ct., at 1354 (internal quotation marks
26

omitted). We reasoned that such inimical intent may render the manner
of lobbying improper or even unlawful, but does not necessarily render
it a “sham.” Ibid. Accord, id., at 398, 111 S.Ct., at 1363 (STEVENS, J.,
dissenting).
In sum, fidelity to precedent compels us to reject a purely subjective
definition of “sham.” The sham exception so construed would
undermine, if not vitiate, Noerr. And despite whatever superficial
certainty it might provide, a subjective standard would utterly fail to
supply real intelligible guidance. Allied Tube, supra, 486 U.S., at 508, n.
10, 108 S.Ct., at 1941, n. 10.
We now outline a two-part definition of “sham” litigation. First, the
lawsuit must be objectively baseless in the sense that no reasonable
litigant could realistically expect success on the merits. If an objective
litigant could conclude that the suit is reasonably calculated to elicit a
favorable outcome, the suit is immunized under Noerr, and an antitrust
claim premised on the sham exception must fail. Only if challenged
litigation is objectively meritless may a court examine the litigant's
subjective motivation. Under this second part of our definition of sham,
the court should focus on whether the baseless lawsuit conceals “an
attempt to interfere directly with the business relationships of a
competitor,” Noerr, supra, 365 U.S., at 144 81 S.Ct., at 533 (emphasis
added), through the “use [of] the governmental process—as opposed to
the outcome of that process—as an anticompetitive weapon,” Omni, 499
U.S., at 380, 111 S.Ct., at 1354 (emphasis in original). This two-tiered
process requires the plaintiff to disprove the challenged lawsuit's legal
viability before the court will entertain evidence of the suit's economic
viability. Of course, even a plaintiff who defeats the defendant's claim to
Noerr immunity by demonstrating both the objective and the subjective
components of a sham must still prove a substantive antitrust violation.
Proof of a sham merely deprives the defendant of immunity; it does not
relieve the plaintiff of the obligation to establish all other elements of his
claim.
Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49,
58-60, 113 S. Ct. 1920, 1927-28, 123 L. Ed. 2d 611 (1993).
27

Based on the first part of the sham test developed by the Supreme Court, the
undersigned finds that the Clinton County litigation instituted by Taylor was not a
sham and is thus immunized by Noerr and its progeny. A reasonable person could
conclude that the litigation was filed in an attempt to succeed on the merits.
Although the litigation was ultimately unavailing, it was not unreasonable for
Taylor to believe that Bartley’s article was libelous as it insinuated her liability in a
lawsuit to which she was not a party. Additionally, it was not unreasonable for
Taylor to believe that Bartley was a part of an organization that may have
committed unlawful acts. This allegation, again, turned out to be unavailing. It
was not unreasonable, however, to believe that Bartley was conspiring against her
and to seek discovery to determine if this was, in fact, the case.
Moreover, in addition to the right, in the petition clause, a balancing of
interests leads this Court to the same conclusion, even if the undersigned has
construed the right to petition too broadly. Bartley certainly has the right to speak
on his radio program. However, that right is not absolute. “[T]he Supreme Court
never has accepted the view that the First Amendment prohibits all government
regulation of expression.” ERWIN CHEMERINSKY, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES THIRD EDITION (Aspen Publishers 2006), and see
Konigsberg v. State Bar of California, 366 U.S. 36; 81 S. Ct. 997; 6 L. Ed. 2d 105
28

(1960).
When Bartley’s speech becomes allegedly defamatory, it would be illogical
for this Court to say to a public employee - you may sue the speaker for defamation
and slander to try to protect your name and reputation, but then the speaker may
sue you simply because you sued him. If this Court were to hold that a “nonsham” civil lawsuit against a reporter, who may fairly be characterized as a ‘shockjock,’8 had a chilling effect on the shock-jock’s speech and therefore is retaliatory,
then there would be no judicial check on this speaker’s speech and the speaker
could tumble down the slippy slope of accusatory prattle into actionable
defamation.
The interests of the two individuals must be balanced so that the scale
reaches a level of reason. It is unreasonable to consider a “non-sham” lawsuit as
retaliatory.
Here, Taylor had reason to believe she needed to access the courts to protect

The characterization of Bartley as a ‘shock-jock’ is warranted by the type of
reporting Bartley engages in based on the facts set forth above. Comparing public
figures to Adolf Hitler is an all-too-common and generally witless metaphor in
modern society. Had Bartley been reporting on, and made the Hitler comparison
to, say, Pol Pot, then this type of reporting would not earn him a ‘shock-jock’
characterization. It is a failed analogy to compare a person who runs an athletic
program at a public university to an infamous dictator who engaged in mass
murder, with the goal of destroying a race and culture.
8

29

her good name and reputation. Her case, although not ultimately prevailing,
certainly does not rise to the level of retaliation under the First Amendment.
Bartley was not threatened with intimidation or sanctions or the loss of public
benefits. Taylor was merely appealing to the courts to protect herself. To
characterize this as retaliation raises this claim to an absurd level which garners no
support with this Court.
3. Bartley alleges he was retaliated against because Taylor “contact[ed]
individuals at ESPN headquarters in Bristol, Connecticut, in an effort to silence
Plaintiff and harm his career.”
This Court is again faced with battling First Amendment rights, but with this
allegation, the right is identical on both sides: the right to free speech.
Taylor’s complaining to Bartley’s superiors is also not actionable as a First
Amendment retaliation claim. Taylor’s own speech rights are implicated. As
Judge Hamilton explained in some detail in Suarez Corp.:
Just as the nature of the retaliatory acts impacts whether a public
employee's First Amendment rights were adversely affected, so too the
natureoftheretaliatoryactsimpactswhetherthoseactsareacionablewhenaprivatecitizenisthespeakerandapublicofficialistheretaliator.
t
*****
The nature of the alleged retaliatory acts has particular significance
where the public official's acts are in the form of speech. Not only is
there an interest in having public officials fulfill their duties, a public
official's own First Amendment speech rights are implicated. Thus,
where a public official's alleged retaliation is in the nature of speech, in
30

the absence of a threat, coercion, or intimidation intimating that
punishment, sanction, or adverse regulatory action will imminently
follow, such speech does not adversely affect a citizen's First
Amendment rights, even if defamatory. See X-Men Sec., Inc. v. Pataki,
196 F.3d 56, 1999 WL 993442, at *14 (2d Cir. 1999) (to be reported at
196 F.3d 56) (holding that, in the absence of threats, intimidation, or
coercion, legislators' "disparaging, accusatory, or untrue statements
about X-Men fail to state a claim for violation of X-Men's constitutional
rights"); Colson v. Grohman, 174 F.3d 498, 512 (5th Cir. 1999) (holding
that a citizen's First Amendment rights were not adversely affected
because she had "alleged only that she was the victim of criticism, an
investigation (or an attempt to start one), and false accusations: all harms
that, while they may chill speech, are not actionable under our First
Amendment retaliation jurisprudence"); Penthouse Int'l Ltd. v. Meese,
291 U.S. App. D.C. 183, 939 F.2d 1011, 1015-16 (D.C. Cir. 1991)
(holding that public officials were entitled to qualified immunity for
criticism they leveled at publishers of pornography and noting that "the
Supreme Court has never found a government abridgment of First
Amendment rights in the absence of some actual or threatened imposition
of governmental power or sanction"); R.C. Maxwell Co. v. Borough of
New Hope, 735 F.2d 85, 89 (3d Cir. 1984) (holding that a borough that
sent letters to a landowner encouraging, but not threatening, intimidating,
or coercing, the landlord to terminate its leases with a billboard owner
did not violate the billboard owner's First Amendment rights where the
landowner terminated the leases in order to curry favor with the
borough); Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33, 38-39
(2d Cir. 1983) (holding that a public official who sent letters to retail
stores requesting that they refrain from selling a controversial board
game did not violate the board game manufacturer's First Amendment
rights, and declaring that to rise to the level of conduct that violates free
speech rights, a public official's comments must "reasonably be
interpreted as intimating that some form of punishment or adverse
regulatory action will follow the failure to accede to the official's
request"); Thomas v. Hickel, 947 P.2d 816, 821 (Alaska 1997)
(concluding that the First Amendment protects an official's right to speak
truthfully in response to criticism even if the official's speech is
retaliatory and stating, "We do not believe that imposing section 1983
liability on a public official who responds in kind to protected speech
31

critical of the official would be consistent with the First Amendment.")...
Suarez Corp. Indus., 202 F.3d at 686-688.
Taylor’s complaint to Carol Stiff about Bartley is not actionable as having
chilled Bartley’s First Amendment rights. Taylor did not threaten, coerce or
intimidate Bartley. She merely complained to an acquaintance she believed to be
superior to Bartley in the ESPN chain of command. Accordingly, Taylor’s own
right to free speech protects her from the accusation of retaliation.
4. Bartley alleges he was retaliated against because Taylor “direct[ed] her staff not
to communicate with Plaintiff.”
Bartley’s claim that Taylor would not, and directed her staff not to,
communicate with Bartley is also not a cognizable claim. Judge Niemeyer, writing
for the Balt. Sun Co. Court, stated:
It is common knowledge [] that reporting is highly competitive, and
reporters cultivate access -- sometimes exclusive access -- to sources,
including government officials. Public officials routinely select among
reporters when granting interviews or providing access to nonpublic
information. They evaluate reporters and choose to communicate with
those who they believe will deliver their desired messages to the public.
By giving one reporter or a small group of reporters information or
access, the official simultaneously makes other reporters, who do not
receive discretionary access, worse off. These other reporters are
sometimes denied access because an official believes them to be
unobjective. See Snyder v. Ringgold, 133 F.3d 917, 1998 WL 13528 *1,
*4 (4th Cir. 1998) (unpublished opinion) (noting the "common and
widely accepted practice among politicians of granting an exclusive
interview to a particular reporter" and "the equally widespread practice
32

of public officials declining to speak to reporters whom they view as
untrustworthy because the reporters have previously violated a promise
of confidentiality or otherwise distorted their comments").
*****
[G]overnment officials regularly subject all reporters to some form of
differential treatment based on whether they approve of the reporters'
expression.
Balt. Sun Co., supra, 437 F. 3d 417-418.
To use sports lexicon, it is acceptable for public figures to attempt an end
run, even when faced with a reporter’s full court press to avoid leading with one’s
chin. This strategy by public figures is par for the course; Bartley himself
conceded in the undisputed facts that it is not uncommon for individuals to refuse
to comment or be interviewed, and that, in fact, he has had people refuse
throughout his career. “Declining to comment” is not a cognizable First
Amendment claim.
5. Bartley alleges he was retaliated against because Taylor “attempted to
circumvent Pennsylvania’s Right to Know Act by directing her staff to
communicate via handwritten or type-written notes rather than emails.”
Bartley strikes out on this allegation as well, insofar as these actions do not
have a chilling effect on the speech of a person of ordinary firmness.
The purpose of Pennsylvania’s Right to Know Law, 65 P.S. § 67.101, et.
seq., is to scrutinize the acts of public officials and to make officials accountable in
33

their use of public funds. 22 Summ. Pa. Jur. 2d Municipal and Local Law § 5:1
(2d ed.), and see Buehl v. Pennsylvania Dept. of Corrections, 955 A.2d 488 (Pa.
Commw. Ct. 2008). The Right to Know Law presumes that all state agency
records are subject public disclosure unless an exemption applies. The agencies
must provide access to public records. 65 P.S. §67.301(a); 65 P.S. §67.302(a).
However, not every document is available for public consumption. See, e.g.
section 708 of the Right to Know Law.
The nature of this allegedly retaliatory act is so insignificant that there is no
way the undersigned could find that Taylor’s advising her staff to communicate
with her orally would have a chilling effect on Bartley’s speech. “The
determination of whether government conduct or speech has a chilling effect or an
adverse impact is an objective one -- we determine whether a similarly situated
person of "ordinary firmness" reasonably would be chilled by the government
conduct in light of the circumstances presented in the particular case.” Balt. Sun
Co., 437 F.3d at 416, citing Constantine, 411 F.3d at 500; Wicomico County, 999
F.2d at 786; see also Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999)
(tailoring adverse impact analysis to specific circumstances presented). “Because
our analysis of the adverse impact is objective, it can be resolved as a matter of
law.” Balt. Sun Co., 437 F.3d at 416.
34

As a matter of law, the Court finds that a person of ordinary firmness would
not be chilled by a supervisor telling her staff to communicate with her orally. It
simply does not rise to the level of actionable retaliation.
6. Bartley alleges he was retaliated against because Taylor “attempt[ed] to charge
broadcast fees for NCAA events when she had no authority to do so.”
This allegation is the most insubstantial of all of Bartley’s myriad
allegations. Bartley claims that Taylor retaliated against him for his speech based
on an email chain which attemped to charge broadcast fees for NCAA events.
However, according to the undisputed facts, this email exchange took place in May
2009. According to the undisputed facts Taylor heard Bartley’s broadcast for the
first time in June 2009. The retaliation claim based on this set of facts fails
because this particular exchange takes place before Taylor heard Bartley’s speech.
Therefore, Taylor could not possibly be retaliating against Bartley for speech she
was then unaware of.
9. Bartley alleges he was retaliated against because Taylor “prevent[ed] Plaintiff
from establishing an internship program at Lock Haven University.”
This final allegation also lacks merit. The failure to establish an internship
program is certainly is a prime example of a “'de minimis inconvenience' to [one’s]

35

exercise of First Amendment rights."”9 Constantine, 411 F.3d at 500. Bartley was
denied no public benefit in an internship program at his radio station. See, e.g.,
Board of County Comm'rs v. Umbehr, 518 U.S. 668, 686, 135 L. Ed. 2d 843, 116
S. Ct. 2342 (1996). Nor was he injured with the disclosure of sufficiently
embarrassing, humiliating, or emotionally distressful information about him. See
Bloch v. Ribar, 156 F.3d 673, 681 (6th Cir. 1998). The failure to establish an
internship program is precisely the type of “mundane” action that would "plant the
seed of a constitutional case" in "virtually every" interchange.” Balt. Sun Co., 437
F.3d at 416, citing Connick v. Myers, 461 U.S. 138, 148-49, 103 S. Ct. 1684, 75 L.
Ed. 2d 708 (1983); see also id. at 143.
III. CONCLUSION:
None of Bartley’s propositions are persuasive. Consequently, defendant’s
motion for summary judgment will be granted and final judgment will be entered
in favor of defendant and against plaintiff.
An appropriate Order in accordance with this Memorandum will follow.

Moreover, this allegation is not logical. The desirable interns for a radio
station would be those studying for a journalism major. It appears to the
undersigned that the individual or individuals to approach for interns would be the
Dean of Academics or the head of the journalism program.
9

36

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

37