Digital Media and Data Privacy Law Blog

U.S. Attorney Patrick Fitzgerald released a sealed indictment and supporting affidavit against Illinois Governor Rod Blagojevich Tuesday after Blagojevich was arrested on a wide range of corruption and "pay-to-play" charges.  Public attention has focused thus far on the first count, which accuses Blagojevich of attempting to leverage his power to appoint President-Elect Barack Obama's successor to the U.S Senate into cash and campaign funds, a choice appointment of his own, or a substantial salary for himself or his wife on a foundation or corporate board.

Fitzgerald called the charges against Blagojevich "a truly new low" and "conduct [that] would make Lincoln roll over in his grave."  In a press release issued on Tuesday, Fitzgerald described the allegations against Blagojevich as follows:

The breadth of corruption laid out in these charges is staggering.  They allege that Blagojevich put a "for sale" sign on the naming of a United States Senator; involved himself personally in pay-to-play schemes with the urgency of a salesman meeting his annual sales target; and corruptly used his office in an effort to trample editorial voices of criticism.  The citizens of Illinois deserve public officials who act solely in the public's interest, without putting a price tag on government appointment, contracts and decisions.

Peddling a U.S. Senate seat as if it were detritus at a Saturday morning yard sale is clearly a serious, serious charge.  However, the second count against Blagojevich should be particularly troubling to editors and reporters -- it accuses Blagojevich and his chief of staff John Harris of threatening to withhold public financing for Wrigley Field if the Tribune Company did not fire certain members of the Chicago Tribune editorial board who were particularly critical of Blagojevich and his administration.

The allegations against Blagojevich -- many of which stem from conversations overheard as part of a court-approved wiretap -- are detailed in a 76-page affidavit that accompanied the indictment.  The Tribune Company had apparently explored in recent months the possibility of securing assistance from the Illinois Finance Agency in connection with the company's efforts to sell the Chicago Cubs and with the financing or sale of Wrigley Field, where the Cubs play. 

Harris apparently explained to Blagojevich that an IFA deal would save the Tribune Company approximately $100 million.  In a phone call intercepted on November 4, Blagojevich allegedly told Harris that he should tell upper management within Tribune that "our recommendation is fire all those [expletive] people, get 'em the [expletive] out of there and get us some editorial support."  On November 6, in another intercepted call, Harris told Blagojevich that the previous day he had informed a person described as "Tribune Financial Advisor" that things "look like they could move ahead fine but, you know, there is a risk that all of this is going to get derailed by your own editorial page."  In an intercepted call on November 11, Harris told Blagojevich that Tribune Financial Advisor had talked to a person described as "Tribune Owner" and that Tribune Owner "got the message and is very sensitive to the issue."  Harris said further that, according to Tribune Financial Advisor, "certain corporate reorganizations and budget cuts [would be] coming and, reading between the lines, he's going after that section."  Blagojevich's alleged response was "Oh.  That's fantastic" and "Wow.  Okay, keep our fingers crossed.  You're the man."  Thereafter, Blagojevich is alleged to have held a series of conversations with Cubs representatives concerning IFA financing for Wrigley Field.

These allegations are particularly troublesome for media organizations because, if true, they provide a stark example of government retaliation on the basis of protected First Amendment speech.  Such retaliation itself violates the First Amendment.  For example, the Second Circuit has held:

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003).  Another federal appeals court has held that a plaintiff must prove the following elements in order to make out a First Amendment retaliation claim:

[1] his speech or act was constitutionally protected; [2] the defendant’s retaliatory conduct adversely affected the protected speech; and [3] a causal connection [existed] between the retaliatory actions and the adverse effect on speech.

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).  A "causal connection," in turn, exists when:

the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.

Bennett, 423 F.3d at 1254.

First Amendment retaliation claims have most commonly arisen when a local government body terminates a public contract with a publisher (such as a contract to provide legal advertising on behalf of the local body) because of unfavorable editorial coverage.  See North Mississippi Communications, Inc. v. Jones, 951 F.2d 652 (5th Cir. 1992); El Dia, Inc. v. Rossello, 165 F.3d 106 (1st Cir. 1999); Review Publ’n, Inc. v. Navarro, 19 Media L. Rep. 1337 (S.D. Fla. 1991).  Nevertheless, a strong argument can be made that the facts set out in the Blagojevich indictment and supporting affidavit -- the threat to withhold $100 million in financing to the financially strapped owner of a prominent newspaper -- would likely chill speech, even if the threat were never formally carried out.

The charges against Blagojevich therefore serve as an important reminder that you should always be vigilant about efforts by government officials to shape your reporting or editorializing through threats of any sort.  Those efforts may give rise to a legal claim against the official.  It also underscores that the broader a publisher's financial exposure, the more pressure points the publisher may have for politicians to try to exploit.