There is no evidence that Salt Lake District Attorney Neal Gunnarson was acting "under color of state law" when he grabbed and tossed a pile of Salt Lake City Weekly newspapers.
With that and other findings, U.S. District Chief Judge David Sam has dismissed a lawsuit filed by a reader who said Gunnarson's actions violated her First Amendment rights.Renee Cornelisen, Salt Lake City, filed the suit last year after Gunnarson publicly admitted that he removed all of the free copies of the alternative weekly from a news rack near his Sandy home Aug. 27, 1997.
Protests from the newspaper's management sparked a probe of the incident, but a panel of five city prosecutors voted against filing criminal charges.
Gunnarson apologized for his conduct, explaining he was "infuriated" with the paper for its comic caricature of him rescuing Salt Lake Mayor Deedee Corradini. The edition featured a story on his investigation of cash gifts to the mayor.
That particular edition also contained a letter to the editor from Cornelisen, which established the basis for her free press lawsuit. She argued in her suit that Gunnarson had in effect censored her letter by removing copies of the newspaper from active circulation.
"I felt violated by him taking the issue off the shelves," said Cornelisen, a contract technical writer for a Salt Lake communications firm.
But Sam said Cornelisen's lawsuit, which she filed without the help of a lawyer, suffered from a number of technical and substantive deficiencies. Besides jurisdictional problems, the suit fell short on the First Amendment claim, Sam said.
"The Constitution does not guarantee that the rights upon which it is premised will be protected and upheld against the actions of purely private parties," the judge wrote. "Rather, the protections provided by the Constitution are protections against infringement by the government - state or federal."
Therefore, the plaintiff has the burden of demonstrating that the alleged violation was performed by an individual acting under color of state law, Sam said. "This element is crucial because it provides the distinction between private conduct and government conduct."
While part of that element was established by Gunnarson's position as a government official, Cornelisen failed to show that he was using that position to deprive her of her rights.
"(Cornelisen) has not alleged that (Gunnarson) availed himself of any `badge' of authority in order to commit the act alleged. Likewise, there does not appear to be any construction of the facts that would allow the court to reach that conclusion," Sam wrote.