Not a Lexis Advance subscriber? Try it out for free.

Zherka v. Amicone

United States Court of Appeals for the Second Circuit

January 11, 2011, Argued; March 2, 2011, Decided

Docket No. 10-37-cv


 [*643]  WESLEY, Circuit Judge:

] Under the law of this Circuit, the viability of a prima facie First Amendment retaliation claim depends on context. Private citizens alleging retaliation for their criticism of public officials must show that they engaged in protected speech, persons acting under color of state law took adverse action against them in retaliation for that speech, and the retaliation resulted in "actual chilling" of their exercise of their constitutional right to free speech. While  [**2] in certain situations a showing of some other form of concrete harm may substitute for "actual chilling," a state-law theory of per se defamation does not sufficiently demonstrate harm and therefore does not establish a federal retaliation claim. Accordingly, the district court's judgment is Affirmed.


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

Zherka alleges that in retaliation for his publications Amicone publicly defamed him  [*644]  at a campaign event. 2 Specifically, Zherka alleges that Amicone stated that Zherka is a "convicted drug dealer," "Albanian mobster," and "thug," and that Zherka would, if Amicone lost his re-election bid, open "drug dens" and "strip clubs" throughout Yonkers and "loot" the "pension funds" of Yonkers residents and the city's own funds.

Shortly thereafter, Zherka sued Amicone, claiming Amicone violated his First Amendment rights, and that Amicone's alleged statements constitute per se defamation under New York common law. 3 Zherka alleged prospective chilling of his First Amendment rights; per se defamation; irreparable injury to professional reputation; emotional upset; anxiety; public humiliation; public shame; public embarrassment; and being otherwise rendered sick and sore. Zherka sought compensatory and punitive damages, as well as attorney's fees and costs. 4

Amicone admitted that he was present at the meeting, but denied making the alleged statements. He raised multiple affirmative defenses, including  [**4] failure to state a claim upon which relief could be granted, and no cognizable injury or damages. Amicone moved for judgment on the pleadings with an award of fees and costs.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

634 F.3d 642 *; 2011 U.S. App. LEXIS 3944 **; 39 Media L. Rep. 1716


Subsequent History: As Amended March 9, 2011.

Prior History:  [**1] 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."

Zherka v. Bogdanos, 411 Fed. Appx. 440, 2011 U.S. App. LEXIS 3995 (2d Cir. N.Y., 2011)

Disposition: AFFIRMED.


defamation, chilling, retaliation, retaliation claim, damages, allegations, presumed, rights, concrete

Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Torts, Intentional Torts, Defamation, Defamation Per Se, Civil Procedure, Appeals, Standards of Review, De Novo Review, Judgments, Pretrial Judgments, Judgment on Pleadings, Civil Rights Law, Section 1983 Actions, Elements, Protected Rights, General Overview