El Dia, Inc. v. Rossello

• Court: Court of Appeals for the First Circuit
• Decided: January 28, 1999
• Docket: 98-2114
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2114



                          EL DIA, INC.,



                       Plaintiff, Appellee,



                                v.



            GOVERNOR PEDRO J. ROSSELLO, ANGEL MOREY, 

                    AND PEDRO ROSARIO URDAZ,

                                

                    Defendants, Appellants.


APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

                                

         [Hon. Jose Antonio Fuste, U.S. District Judge]


Before

                                

                     Boudin, Circuit Judge,

                 Aldrich, Senior Circuit Judge,

                   and Stahl, Circuit Judge.


Joseph D. Steinfield, with whom Hill and Barlow, James F.

Hibey, William R. Sherman, Verner, Liipfert, Bernhard, McPherson

and Hand, Chartered, John Garcia, Garcia & Fernandez Law Offices,

David H. Marion, Jeremy D. Mishkin, Howard J. Bashman, Montgomery,

McCracken, Walker & Rhoads, LLP, Andres Guillemard-Noble, Nachman,

Guillemard & Rebollo, William L. Patton, Thomas B. Smith, Ropes &

Gray, Gustavo A. Gelpi, and Feldstein, Gelpi & Gotay, were on brief

for appellants.

     Bruce W. Sanford, with whom Mark A. Cymrot, Lee H. Simowitz,

Bruce D. Brown, Baker & Hostetler, LLP, Arturo Trias, Miguel R.

Garay Auban, Trias, Melendez & Garay, and Michael Avery.


January 25, 1999


STAHL, Circuit Judge.  Puerto Rico Governor Pedro

Rossello and other members of his administration (collectively,

"the Defendants") seek to raise a qualified immunity defense to a

claim that they violated the constitutional rights of plaintiff-

appellee El Dia, Inc. ("El Dia").  Specifically, the Defendants

argue that they did not violate "clearly established" First

Amendment law by allegedly withdrawing substantial government

advertising from a newspaper to punish the paper for criticizing

the Rossello administration.  On this interlocutory appeal, we

affirm the district court's denial of the Defendants' motion to

dismiss on qualified immunity grounds.

                               I.

  In reviewing a motion to dismiss, we accept all well-

pleaded facts as true and draw all reasonable inferences in favor

of the plaintiff.  See Aybar v. Crispin Reyes, 118 F.3d 10, 13 (1st

Cir. 1997).  El Dia owns, operates, and publishes El Nueva Dia, a

daily Spanish-language newspaper circulated in Puerto Rico. 

Beginning in January 1997, El Nueva Dia published a series of

articles alleging patterns of fraud and waste in the Rossello

Administration.  On April 13, 1997, El Nueva Dia published an

article critical of Governor Rossello's first one hundred days of

his second term in office.  On April 14, 1997, eighteen government

agencies that had routinely advertised in El Nueva Dia terminated

advertising contracts with the newspaper.  El Dia alleges that the

Defendants ordered withdrawal of the advertising in retaliation for

the critical articles.  El Dia also alleges that, in a series of

meetings over several months, the Defendants subsequently offered

to return the advertising to El Dia if the newspaper wrote

favorable editorials regarding certain of the government's

initiatives. 

  On December 9, 1997, El Dia filed a three-count civil

rights complaint under 42 U.S.C.  1983.  Count one, the only count

that is the subject of this appeal, requested both damages and

injunctive relief for violations of El Dia's First Amendment rights

predicated on the allegedly retaliatory withdrawal of advertising. 

On January 28, 1998, the Defendants moved to dismiss all claims

seeking to recover money damages against them in their individual

capacities on grounds of qualified immunity.  On August 28, 1998,

the district court denied the motion to dismiss.  The court found

that the acts alleged in count one, if proven, would violate

"clearly established" law and that the qualified immunity defense

was therefore unavailable.  The Defendants now bring an

interlocutory challenge to this ruling.                              II.

     This court reviews a district court's denial of a motion

to dismiss on qualified immunity grounds de novo.  See Elder v.

Holloway, 510 U.S. 510, 516 (1994); Rivera-Ramos v. Roman, 156 F.3d

276, 279 (1st Cir. 1998).  

     Under the doctrine of qualified immunity, public

officials "generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known."  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

The doctrine protects such officials from liability for mere

"mistaken judgments" about the legality of their actions.  Malleyv. Briggs, 475 U.S. 335, 343 (1986).  

     To determine whether a public official has violated

clearly established law, a court must evaluate the objective

reasonableness of the alleged conduct in light of legal precedent. 

See Harlow, 457 U.S. at 818.  "The contours of the right must be

sufficiently clear that a reasonable official would understand that

what he is doing violates that right."  Anderson v. Creighton, 483

U.S. 635, 640 (1987).  We therefore focus our analysis on specific

facts and not on the right in the abstract, see Rivera-Ramos, 156

F.3d at 279-80, but "the very action in question [need not] ha[ve]

previously been held unlawful," Anderson, 483 U.S. at 640; see alsoMitchell v. Forsyth, 472 U.S. 511, 535 n.12 (1985) ("We do not

intend to suggest that an official is always immune from liability

or suit for a warrantless search merely because the warrant

requirement has never explicitly been held to apply to a search

conducted in identical circumstances."); accord St. Hilaire v. City

of Laconia, 71 F.3d 20, 25 (1st Cir. 1995).  Rather, "a general

constitutional rule already identified in the decisional law may

apply with obvious clarity to the specific conduct in question,

even though the very action in question has [not] previously been

held unlawful."  United States v. Lanier, 117 S. Ct. 1219, 1227

(1997) (alteration in original; internal quotation marks omitted). 

Thus, all that is needed is that, "in the light of the preexisting

law[,] the unlawfulness must [have] be[en] apparent."  Anderson,

483 U.S. at 640.                              III.

     It would seem obvious that using government funds to

punish political speech by members of the press and to attempt to

coerce commentary favorable to the government would run afoul of

the First Amendment.  See Rosenberger v. Rector and Visitors of the

Univ. of Va., 515 U.S. 819, 830 (1995) ("[I]deologically driven

attempts to suppress a particular point of view are presumptively

unconstitutional in funding, as in other contexts."); New York

Times Co. v. United States, 403 U.S. 713, 723-24 (1971) ("The

dominant purpose of the First Amendment was to prohibit the

widespread practice of governmental suppression of embarrassing

information.") (Douglas, J., concurring); Grosjean v. American

Press Co., 297 U.S. 233, 250 (1936) (government action constituting

"a deliberate and calculated device . . . to limit the circulation

of information" is unconstitutional).  The Defendants argue,

however, that there is no "clearly established" law prohibiting

such conduct.  Moreover, the Defendants assert that the withdrawal

of the advertising itself constitutes speech, and that, when acting

as speaker, the government may make content-based choices.  Neither

argument is persuasive: the first we reject and the second is

premature.

     Clearly established law prohibits the government from

conditioning the revocation of benefits on a basis that infringes

constitutionally protected interests, see Perry v. Sindermann, 408

U.S. 593, 597 (1972), and from terminating an independent

contractor such as El Dia in retaliation for exercising its First

Amendment rights, see Board of County Comm'rs v. Umbehr, 518 U.S.

668, 685 (1996); Nestor Colon Medina & Sucesores, Inc. v. Custodio,

964 F.2d 32, 40-41 (1st Cir. 1992) (holding that denial of land use

permit in unjustifiable retaliation for applicant's political

expression is a First Amendment violation).  Indeed, in the words

of the Supreme Court in Anderson, 483 U.S. at 640, "the very action

in question has previously been held unlawful."  See, e.g., North

Mississippi Communications, Inc. v. Jones, 792 F.2d 1330, 1337 (5th

Cir. 1986) (government's withdrawal of advertisements from

newspaper in retaliation for critical editorials and news violates

the First Amendment); Frissell v. Rizzo, 597 F.2d 840, 845 (3d Cir.

1979) (dicta); see also Umbehr, 518 U.S. at 673 (citing North

Mississippi Communications, Inc. with approval).  This is not a

case of "mistaken judgment[]" for which the Defendants ought to be

immune from liability.  Malley, 475 U.S. at 343.  Because the law

was clearly established at the time the Defendants allegedly

withdrew the advertising, the Defendants are not entitled to

qualified immunity.  See Harlow, 457 U.S. at 819 ("Where an

official could be expected to know that certain conduct would

violate statutory or constitutional rights, he should be made to

hesitate; and a person who suffers injury caused by such conduct

may have a cause of action.").

     The Defendants' second and related argument, that the

government was acting as a speaker and therefore may make content-

based choices, must be rejected for a different reason: it rests on

a factual premise we cannot now accept.  In assessing whether a Fed

R. Civ. P. 12(b)(6) motion was properly denied, we confine our

analysis to the pleadings, as did the district court.  See Doyle v.

Hasbro, Inc., 103 F.3d 186, 190 (1st Cir. 1996).  Nowhere in the

complaint is there a hint that the Defendants were "trying to

advance [their] own speech interests" by withdrawing the

advertisements.  Rather, the complaint alleges that the Defendants

punished El Dia for asserting its speech interests.  Discovery may

yet show the Defendants were only, or at least primarily,

interested in "ensuring that the force and credibility of its

advertising messages [we]re not undermined by the surrounding

editorial context."  Br. of Defendants at 16.  If so, the qualified

immunity question may well be cast in a different light.  Cf.Umbehr, 518 U.S. at 685 (giving the government the opportunity to

"persuade the District Court that [its] legitimate interests as

contractor, deferentially viewed, outweigh the free speech

interests at stake"); see also Behrens v. Pelletier, 516 U.S. 299,

307 (1996) (permitting the qualified immunity defense to be raised

at subsequent stages in the same case, even where it has been

previously rejected).  Because the second argument is based on

assertions not found in the complaint, we must decline to consider

it on this appeal.

                              IV.

     For the foregoing reasons, we affirm the district court's

denial of the Defendants' motion to dismiss on qualified immunity

grounds.

     Affirmed.  Costs to appellees.