Lawyer: First Amendment Doesn’t Protect Inquirer

The Inquirer may have the right to report on the actions of public officials, an attorney says in filings against the newspaper, but it doesn’t have the right to mislead readers into believing an official has done something wrong.

Dion Rassias, the attorney for Pennsylvania Supreme Court Justice Seamus McCaffery and McCaffery’s wife, Lise Rapaport, made the argument this week in his latest filings against the newspaper over its 2013 story about referral fees Rapaport earned from law firms that later came before her husband on the bench.

Attorneys for the paper had said the case should be dismissed because the Inquirer was reporting on issues of public concern — and thus protected by the Constitution. Rassias rejected that reasoning.

“Contrary to the gratuitous pronouncements throughout the preliminary objections, this case is not about diminishing the First Amendment,” Rassias responded this week. “It is about what happens when the First Amendment is actually used as a weapon but invoked by its abusers as a shield to insulate their wrongdoing.”

McCaffery and Rapaport sued the Inquirer in March, a year after a front-page article by investigative reporter Craig McCoy detailed how Rapaport — who also served from time-to-time as McCaffery’s chief judicial aide — had received hefty case referral fees from firms that later appeared before McCaffery and the state court. McCaffery ruled for those firms in 8 of 11 cases that went before the court, and the story quoted officials questioning the propriety of the transactions.

The articles produced an FBI investigation and the overhaul of some ethics rules at the court. But McCaffery and his wife did nothing illegal or unethical, Rassias has said, pointing out that the Inquirer based its story in part on public disclosure forms filed by McCaffery himself.

The Inquirer, Rassias alleged, knowingly misled readers into believing McCaffery acted improperly.

In its own filings last month, the paper said that McCaffery had presented no evidence the paper had printed anything false — and said that McCaffery’s status as a public official made his actions fair game for scrutiny.

“Because the articles are about matters of public concern — specifically, the workings of the judiciary and the duties of a state Supreme Court justice and his chief judicial aide — they cannot, as a matter of law, constitute false light invasion of privacy,” attorney Amy B. Ginensky wrote.

That’s not true, Rassias wrote in his filings this week.

“The Defendants’ Memorandum of Law repeatedly and incorrectly states that recovery for false light and defamation is not available for publications about matters of public concern,” he wrote.  “However, Pennsylvania courts have very clearly permitted recovery for the disclosure of public, as well as private, facts, and the Defendants’ brief on this issue is simply incorrect.”

The defendants in the case are the paper and its ownership company, Interstate General Media, Inky editor Bill Marimow, investigative reporter Craig McCoy, Daily News editor Mike Days, and Daily News cartoonist Signe Wilkinson — the latter two for an editorial cartoon based on the Inquirer’s reporting on the case.

A hearing on the arguments is scheduled for 10 a.m. Thursday in Harrisburg; all Philadelphia judges have been recused from the case.

Read the filing by Rassias below.