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Selim Zherka v. Philip Amicone


March 2, 2011


Appeal from judgment of the United States District Court for the Southern District of New York (Seibel, J.), entered on December 22, 2009, which dismissed with prejudice Plaintiff-Appellant's First Amendment retaliation claim on the ground that state-law per se defamation does not constitute concrete harm as required to maintain a cause of action for constitutional tort against a public official where plaintiff does not allege "actual chilling."

The opinion of the court was delivered by: Wesley, Circuit Judge:


Zherka v. Amicone

Argued: January 11, 2011

Before: POOLER, WESLEY, and CHIN, Circuit Judges.


Under the law of this Circuit, the viability of a prima facie First Amendment retaliation claim depends on context.

17 Private citizens alleging retaliation for their criticism of 18 public officials must show that they engaged in protected 19 speech, persons acting under color of state law took adverse 20 action against them in retaliation for that speech, and the 21 retaliation resulted in "actual chilling" of their exercise 22 of their constitutional right to free speech. While in 23 certain situations a showing of some other form of concrete 24 harm may substitute for "actual chilling," a state-law 25 theory of per se defamation does not sufficiently 26 demonstrate harm and therefore does not establish a federal 27 retaliation claim. Accordingly, the district court's 28 judgment is AFFIRMED.


Selim Zherka owns and publishes the Westchester 4 Guardian, a weekly periodical covering Westchester County, 5 which encompasses the City of Yonkers. In the fall of 2007, 6 the Guardian was highly critical of the Mayor of Yonkers, 7 Philip Amicone, accusing him and his administration of, 8 inter alia, corruption, fiscal mismanagement, and police 9 brutality.

10 Zherka alleges that in retaliation for his publications 11 Amicone publicly defamed him at a campaign event.*fn2 12 Specifically, Zherka alleges that Amicone stated that Zherka 13 is a "convicted drug dealer," "Albanian mobster," and 14 "thug," and that Zherka would, if Amicone lost his re- 15 election bid, open "drug dens" and "strip clubs" throughout 16 Yonkers and "loot" the "pension funds" of Yonkers residents 17 and the city's own funds.

18 Shortly thereafter, Zherka sued Amicone, claiming 19 Amicone violated his First Amendment rights, and that 20 Amicone's alleged statements constitute per se defamation 1 under New York common law.*fn3 Zherka alleged prospective 2 chilling of his First Amendment rights; per se defamation; 3 irreparable injury to professional reputation; emotional 4 upset; anxiety; public humiliation; public shame; public 5 embarrassment; and being otherwise rendered sick and sore.

Zherka sought compensatory and punitive damages, as well as attorney's fees and costs.*fn4

8 Amicone admitted that he was present at the meeting, 9 but denied making the alleged statements. He raised 10 multiple affirmative defenses, including failure to state a 11 claim upon which relief could be granted, and no cognizable 12 injury or damages. Amicone moved for judgment on the 13 pleadings with an award of fees and costs.

14 Judge Seibel dismissed Zherka's First Amendment 15 retaliation claim with prejudice, on the ground that per se 16 defamation cannot constitute harm under this Court's 17 standard for this type of claim. She declined to exercise 18 supplemental jurisdiction over the remaining state-law defamation claim, dismissing it without prejudice. Zherka 2 timely appealed to this Court, seeking reversal of the grant 3 of judgment on the pleadings.


7 "To state a claim under Section 1983, a plaintiff must 8 allege facts indicating that some official action has caused 9 the plaintiff to be deprived of his or her constitutional 10 rights - in other words, there is an injury requirement to 11 state the claim." Colombo v. O'Connell, 310 F.3d 115, 117 12 (2d Cir. 2002) (per curiam). Various forms of harm have 13 been accepted as satisfying this injury requirement in the 14 context of a claim that a public official has injured the 15 plaintiff in retaliation for her exercise of her First 16 Amendment rights.

17 "We have described the elements of a First Amendment 18 retaliation claim in several ways, depending on the factual 19 context." Williams v. Town of Greenburgh, 535 F.3d 71, 76 20 (2d Cir. 2008). For example, public employees must show 1 adverse employment action. Id. For their part, inmates 2 must show "retaliatory conduct that would deter a similarly 3 situated individual of ordinary firmness from exercising .. 4 . constitutional rights." Gill v. Pidlypchak, 389 F.3d 379, 5 381 (2d Cir. 2004) (internal quotation marks and citation 6 omitted).

7 By contrast, private citizens claiming retaliation for 8 their criticism of public officials have been required to 9 show that they suffered an "actual chill" in their speech as 10 a result. Id. (citing Spear v. Town of W. Hartford, 954 11 F.2d 63, 68 (2d Cir. 1992)). However, in limited contexts, 12 other forms of harm have been accepted in place of this 13 "actual chilling" requirement. See, e.g., Dougherty v. Town 14 of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d 15 Cir. 2002) (alleging retaliatory revocation of building 16 permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195 (2d 17 Cir. 1994) (alleging retaliatory failure to enforce zoning 18 laws); see also Gill, 389 F.3d at 383 (explaining that "the 19 Gagliardi plaintiffs' retaliation claim apparently survived 20 a motion to dismiss because . . . they adequately pleaded 21 non-speech injuries"). Despite these limited exceptions, as 22 a general matter, First Amendment retaliation plaintiffs 1 must typically allege "actual chilling."

2 In this case, Zherka does not allege actual chilling.*fn6 3 Rather, he seeks to meet the injury requirement by asserting 4 that defamation per se as recognized under New York law 5 identifies a cognizable injury without the necessity of 6 showing actual damage to his business or reputation. The 7 district court disagreed and concluded that presumed damages 8 under the New York law of per se defamation, unaccompanied 9 by any allegations of particular injury, were not 10 sufficiently tangible to serve as a substitute for "actual 11 chilling." We agree.

12 New York law has long recognized that "[w]hen 13 statements fall within" established categories of per se 14 defamation,*fn7 "the law presumes that damages will result, and 1 they need not be alleged or proven." Liberman v. Gelstein, 2 80 N.Y.2d 429, 435 (1992). Defamation law plays an 3 important role, in that the state "has a pervasive and 4 strong interest in preventing and redressing attacks upon 5 reputation." Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).

6 But § 1983 has a quite different purpose: it 7 "provide[s] a remedy when federal rights have been violated 8 through the use or misuse of a power derived from a State." 9 Kletschka v. Driver, 411 F.2d 436, 448-49 (2d Cir. 1969).

10 To that end, a requirement that plaintiffs allege "actual 11 chilling" ensures an identified injury to one's right to 12 free speech is established. Hurt feelings or a bruised ego 13 are not by themselves the stuff of constitutional tort. 14 See, e.g., Sadallah v. City of Utica, 383 F.3d 34, 38 (2d 15 Cir. 2004) (requiring a "state-imposed burden or alteration 16 of status . . . in addition to [a] stigmatizing statement") 17 (emphasis in original, internal quotation marks omitted).

18 Where chilling is not alleged, other forms of tangible 19 harm will satisfy the injury requirement, since "standing is 20 no issue whenever the plaintiff has clearly alleged a 21 concrete harm independent of First Amendment chilling."

22 Gill, 389 F.3d at 383 (emphasis added). In our view, the 1 presumed damages of defamation per se under New York law do 2 not establish a concrete harm sufficient for a federal claim 3 of First Amendment retaliation.

4 "The common law of defamation is an oddity of tort law, 5 for it allows recovery of purportedly compensatory damages 6 without evidence of actual loss." Gertz v. Robert Welch, 7 Inc., 418 U.S. 323, 349 (1974). Gertz recognized the 8 tension between the state's interest in protecting a 9 citizen's reputation on the one hand, and the 10 "constitutional command of the First Amendment" on the 11 other. Id. There, the question was whether the state's 12 common law of defamation provided an action based upon 13 constitutionally protected speech. The Supreme Court found 14 that states were prohibited by the First Amendment from 15 permitting recovery of presumed or punitive damages absent a 16 showing of malice. Id.*fn8

17 This case does not require us to measure the 18 constitutional dimensions of a state's tort law. It simply 19 asks: is the injury presumed by state law to arise from mere 20 utterance of words solid enough ground on which to construct 1 a federal constitutional tort claim? We have before us, in 2 a sense, "speech against speech." Zherka's publications are 3 core protected speech under the First Amendment. Amicone's 4 alleged retaliation did not come in the form of denial of a permit or threat of a lost contract. Rather, it was a group 6 of statements - none very kind - about Zherka. Retaliatory 7 insults or accusations may wound one's soul, but by 8 themselves they fail to cross the threshold of measurable harm required to move government response to public 10 complaint from the forum of free speech into federal court.*fn9

11 Our holding today does not rule out the use of non-per 12 se claims of defamation in § 1983 First Amendment 13 retaliation claims. Where concrete harm is alleged and 14 specified, the claim may proceed. Allegations of loss of 15 business or some other tangible injury as a result of a 16 defendant's statements would suffice to establish concrete 17 harm. But the presumed injury of New York's theory of per 18 se defamation is inadequate.

1 We need not decide if allegations of emotional and 2 psychological harm would establish compensable injury in a 3 First Amendment retaliation claim.*fn10 Zherka did allege both, 4 but in a most cursory fashion. As pleaded, the allegations 5 are insufficient to establish facial plausibility under the 6 standard set by Bell Atlantic Corp. v. Twombly, 550 U.S. 7 544, 556 (2007). In any event, Zherka's attorney affirmed, 8 in response to a direct question from Judge Seibel, that per 9 se defamation was the only harm alleged.

10 The arena of political discourse can at times be rough 11 and tough. Public officials must expect that their 12 decisions will be subjected to withering scrutiny from the 13 populace. A public official's response to that criticism is 14 subject to limits, but the injury inflicted by that response 15 must be real. Without that limitation, the Constitution 16 would change from the guarantor of free speech to the 17 silencer of public debate.


3 The district court's judgment of December 22, 2009 4 dismissing with prejudice Plaintiff-Appellant's First 5 Amendment retaliation claim is hereby AFFIRMED.

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