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Selim Zherka v. Philip Amicone

March 2, 2011

SELIM ZHERKA, PLAINTIFF-APPELLANT,
v.
PHILIP AMICONE, IN HIS CAPACITY AS MAYOR OF THE CITY OF YONKERS, DEFENDANT-APPELLEE.*FN1



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:

10-37-cv

Zherka v. Amicone

Argued: January 11, 2011

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

AFFIRMED.

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.

I. BACKGROUND

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 ...


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