Yesterday, in a case that attracted wide spread media attention (stories here and here), a jury in federal court ruled that the City of Philadelphia violated my client’s first amendment free speech rights when a Philadelphia City Councilperson blocked the sale of two city owned vacant lots to him in retaliation for my client challenging him for office. The decision has been declared a landmark decision and the first of its kind. It is humbling that the jury agreed with my argument and ruled in favor of my client.
The case involved an official custom and practice in Philadelphia known as Councilmanic Prerogative, which requires anyone wishing to acquire land owned by the City of Philadelphia to first obtain permission from the City Councilmember in whose District the property is located. It then requires the same City Councilmember to introduce legislation approving the sale. Obviously, this practices gives City Councilmembers a vast amount of power of land sales in their respective district. If the City Councilmember does like you, you cannot acquire a parcel of land owned by the City.
In my case, my client was the highest bidder for two lots at a public auction for City owned land. At the time, my client was was in a pitched election campaign against the City Councilmember in whose District the land was located. When it came time for the City Councilmember to introduce legislation approving the sale, the City Councilmember did something he has never done before (nor since) he refused to introduce the legislation. After a two day trial, the jury agreed that the City Councilmember refused to introduce the legislation in retaliation against my client for engaging in protected political speech.
Some have asked if the jury’s verdict does away with Councilmanic Prerogative. It does not. However, it does mean that the City of Philadelphia can be held liable when it is used in an unconstitutional manner.
Of course, not everyone that is thwarted in an attempt to obtain City owned land happens to be a political candidate. But, the breadth of the jury’s verdict is not limited to that. The First Amendment protects both our right to free speech and not to speak at all. Although controversial, donating money to a campaign or using money for political purposes is a form of speech. Conversely, not giving money to a political candidate or cause is also free speech. In other words, you cannot be treated differently because you chose to remain neutral or disinterested.
Sadly, in the City of Philadelphia, the birth place of freedom, unequal treatment because of political affiliation and support is common place. Campaign contributors have a better chance of obtaining City owned land from City Councilmembers because the Citycouncilmembers support them. Under Councilmanic Perogative, if you have no support, you cannot obtain any land.
After yesterday, that is no longer possible. If a Philadelphia City Councilmember treats a person that is NOT a campaign contributor differently than the way they treat someone that DOES contribute, then they have violated that non-contributor’s First Amendment right not to speak. And, if they do the City will be liable for damages.
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
