The Clerk of the Court is directed to amend the official caption in accordance with… v. Amicone 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August…

*The Clerk of the Court is directed to amend the official caption in
accordance with this opinion.
10-37-cv
Zherka v. Amicone
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
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6
7
August Term, 2010 8
9
(Argued: January 11, 2011 Decided: March 2, 2011) 10
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Docket No. 10-37-cv 12
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S ELIM Z HERKA , 15
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Plaintiff-Appellant, 17
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–v.– 19
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P HILIP A MICONE , IN HIS C APACITY AS M AYOR OF THE C ITY OF Y ONKERS , 21
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Defendant-Appellee. *
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Before: 26
P OOLER , W ESLEY , and C HIN , Circuit Judges. 27
28
Appeal from judgment of the United States District 29
Court for the Southern District of New York (Seibel, J.), 30
entered on December 22, 2009, which dismissed with prejudice 31
Plaintiff-Appellant’s First Amendment retaliation claim on 32
the ground that state-law per se defamation does not 33
constitute concrete harm as required to maintain a cause of 34
action for constitutional tort against a public official 35

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Page 2 of 12
where plaintiff does not allege “actual chilling.” 1
2
A FFIRMED. 3
4
5
R ORY J. B ELLANTONI , Lovett & Bellantoni, LLP, 6
Hawthorne, NY, for Plaintiff-Appellant. 7
8
B RIAN T. B ELOWICH , DelBello Donnellan Weingarten Wise 9
& Wiederkehr, LLP, White Plains, NY, for 10
Defendant-Appellee. 11
12
13
WESLEY, Circuit Judge: 14
Under the law of this Circuit, the viability of a prima 15
facie First Amendment retaliation claim depends on context. 16
Private citizens alleging retaliation for their criticism of 17
public officials must show that they engaged in protected 18
speech, persons acting under color of state law took adverse 19
action against them in retaliation for that speech, and the 20
retaliation resulted in “actual chilling” of their exercise 21
of their constitutional right to free speech. While in 22
certain situations a showing of some other form of concrete 23
harm may substitute for “actual chilling,” a state-law 24
theory of per se defamation does not sufficiently 25
demonstrate harm and therefore does not establish a federal 26
retaliation claim. Accordingly, the district court’s 27
judgment is A FFIRMED. 28

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1It is arguable that Amicone was not speaking in his official capacity
when he made the alleged statements, but we assume for purposes of analysis
that he was.
Page 3 of 12
I. BACKGROUND 1
2
Selim Zherka owns and publishes the Westchester 3
Guardian, a weekly periodical covering Westchester County, 4
which encompasses the City of Yonkers. In the fall of 2007, 5
the Guardian was highly critical of the Mayor of Yonkers, 6
Philip Amicone, accusing him and his administration of, 7
inter alia, corruption, fiscal mismanagement, and police 8
brutality. 9
Zherka alleges that in retaliation for his publications 10
Amicone publicly defamed him at a campaign event. 1
11
Specifically, Zherka alleges that Amicone stated that Zherka 12
is a “convicted drug dealer,” “Albanian mobster,” and 13
“thug,” and that Zherka would, if Amicone lost his re- 14
election bid, open “drug dens” and “strip clubs” throughout 15
Yonkers and “loot” the “pension funds” of Yonkers residents 16
and the city’s own funds. 17
Shortly thereafter, Zherka sued Amicone, claiming 18
Amicone violated his First Amendment rights, and that 19
Amicone’s alleged statements constitute per se defamation 20

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2Zherka also alleged a violation of his right to travel under the
Fourteenth Amendment. He wisely withdrew this claim prior to the judgment
below.
3Only costs were sought on the state-law claim. Attorneys’ fees and
costs were sought on the two federal claims, pursuant to 42 U.S.C. § 1988(b)
(allowing for discretionary awards of “a reasonable attorney’s fee” to
prevailing parties other than the United States in suits brought under § 1983
and other civil rights statutes).
Page 4 of 12
under New York common law. 2 Zherka alleged prospective 1
chilling of his First Amendment rights; per se defamation; 2
irreparable injury to professional reputation; emotional 3
upset; anxiety; public humiliation; public shame; public 4
embarrassment; and being otherwise rendered sick and sore. 5
Zherka sought compensatory and punitive damages, as well as 6
attorney’s fees and costs. 3
7
Amicone admitted that he was present at the meeting, 8
but denied making the alleged statements. He raised 9
multiple affirmative defenses, including failure to state a 10
claim upon which relief could be granted, and no cognizable 11
injury or damages. Amicone moved for judgment on the 12
pleadings with an award of fees and costs. 13
Judge Seibel dismissed Zherka’s First Amendment 14
retaliation claim with prejudice, on the ground that per se 15
defamation cannot constitute harm under this Court’s 16
standard for this type of claim. She declined to exercise 17
supplemental jurisdiction over the remaining state-law 18

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4We review de novo the grant of a motion for judgment on the pleadings.
See, e.g., Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). In this
review, we accept all factual allegations in the complaint as true and draw
all reasonable inferences in the plaintiff’s favor. Id.
Page 5 of 12
defamation claim, dismissing it without prejudice. Zherka 1
timely appealed to this Court, seeking reversal of the grant 2
of judgment on the pleadings. 3
4
II. DISCUSSION4
5
6
“To state a claim under Section 1983, a plaintiff must 7
allege facts indicating that some official action has caused 8
the plaintiff to be deprived of his or her constitutional 9
rights – in other words, there is an injury requirement to 10
state the claim.” Colombo v. O’Connell, 310 F.3d 115, 117 11
(2d Cir. 2002) (per curiam). Various forms of harm have 12
been accepted as satisfying this injury requirement in the 13
context of a claim that a public official has injured the 14
plaintiff in retaliation for her exercise of her First 15
Amendment rights. 16
“We have described the elements of a First Amendment 17
retaliation claim in several ways, depending on the factual 18
context.” Williams v. Town of Greenburgh, 535 F.3d 71, 76 19
(2d Cir. 2008). For example, public employees must show 20

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Page 6 of 12
adverse employment action. Id. For their part, inmates 1
must show “retaliatory conduct that would deter a similarly 2
situated individual of ordinary firmness from exercising . . 3
. constitutional rights.” Gill v. Pidlypchak, 389 F.3d 379, 4
381 (2d Cir. 2004) (internal quotation marks and citation 5
omitted). 6
By contrast, private citizens claiming retaliation for 7
their criticism of public officials have been required to 8
show that they suffered an “actual chill” in their speech as 9
a result. Id. (citing Spear v. Town of W. Hartford, 954 10
F.2d 63, 68 (2d Cir. 1992)). However, in limited contexts, 11
other forms of harm have been accepted in place of this 12
“actual chilling” requirement. See, e.g., Dougherty v. Town 13
of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d 14
Cir. 2002) (alleging retaliatory revocation of building 15
permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 195 (2d 16
Cir. 1994) (alleging retaliatory failure to enforce zoning 17
laws); see also Gill, 389 F.3d at 383 (explaining that “the 18
Gagliardi plaintiffs’ retaliation claim apparently survived 19
a motion to dismiss because . . . they adequately pleaded 20
non-speech injuries”). Despite these limited exceptions, as 21
a general matter, First Amendment retaliation plaintiffs 22

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5Indeed, it would be difficult for him to do so. After the alleged
defamatory statements, the Guardian continued to publish articles critical of
Amicone, with headlines (quoted by the defense in its motion for judgment on
the pleadings and not contested in Zherka’s memo of opposition) such as “Mayor
Amicone Stumbles Over the First Amendment,” “Dumb, Dumber and Dumbest,” and
“Scrooge Amicone – Rapes Taxpayers; Rewards Cronies.” Far from chilling
Zherka’s speech, Amicone’s alleged statements seem rather to have inflamed it.
6There are “four established exceptions [to the requirement that
plaintiff allege special damages] consist[ing] of statements (i) charging
plaintiff with a serious crime; (ii) that tend to injure another in his or her
trade, business or profession; (iii) that plaintiff has a loathsome disease;
or (iv) imputing unchastity to a woman.” Liberman v. Gelstein, 80 N.Y.2d 429,
435 (1992) (citations omitted). This final category is codified: “In an
action of slander of a woman imputing unchastity to her, it is not necessary
to allege or prove special damages.” N.Y. Civ. Rights Law § 77 (McKinney
2009). The other three categories are uncodified. See generally 2 Ernest P.
Seelman, The Law of Libel and Slander in the State of New York 869-75; see
also Restatement (Second) of Torts §§ 570-74 (1977).
Page 7 of 12
must typically allege “actual chilling.” 1
In this case, Zherka does not allege actual chilling. 5
2
Rather, he seeks to meet the injury requirement by asserting 3
that defamation per se as recognized under New York law 4
identifies a cognizable injury without the necessity of 5
showing actual damage to his business or reputation. The 6
district court disagreed and concluded that presumed damages 7
under the New York law of per se defamation, unaccompanied 8
by any allegations of particular injury, were not 9
sufficiently tangible to serve as a substitute for “actual 10
chilling.” We agree. 11
New York law has long recognized that “[w]hen 12
statements fall within” established categories of per se 13
defamation, 6 “the law presumes that damages will result, and 14

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Page 8 of 12
they need not be alleged or proven.” Liberman v. Gelstein, 1
80 N.Y.2d 429, 435 (1992). Defamation law plays an 2
important role, in that the state “has a pervasive and 3
strong interest in preventing and redressing attacks upon 4
reputation.” Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). 5
But § 1983 has a quite different purpose: it 6
“provide[s] a remedy when federal rights have been violated 7
through the use or misuse of a power derived from a State.” 8
Kletschka v. Driver, 411 F.2d 436, 448-49 (2d Cir. 1969). 9
To that end, a requirement that plaintiffs allege “actual 10
chilling” ensures an identified injury to one’s right to 11
free speech is established. Hurt feelings or a bruised ego 12
are not by themselves the stuff of constitutional tort. 13
See, e.g., Sadallah v. City of Utica, 383 F.3d 34, 38 (2d 14
Cir. 2004) (requiring a “state-imposed burden or alteration 15
of status . . . in addition to [a] stigmatizing statement”) 16
(emphasis in original, internal quotation marks omitted). 17
Where chilling is not alleged, other forms of tangible 18
harm will satisfy the injury requirement, since “standing is 19
no issue whenever the plaintiff has clearly alleged a 20
concrete harm independent of First Amendment chilling.” 21
Gill, 389 F.3d at 383 (emphasis added). In our view, the 22

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7“The constitutionality of the common law rule that nominal damages may
be recovered for a defamatory communication that is actionable per se, even in
the absence of proof of harm to reputation, is now somewhat uncertain.”
Restatement (Second) of Torts § 569 cmt. c (1977).
Page 9 of 12
presumed damages of defamation per se under New York law do 1
not establish a concrete harm sufficient for a federal claim 2
of First Amendment retaliation. 3
“The common law of defamation is an oddity of tort law, 4
for it allows recovery of purportedly compensatory damages 5
without evidence of actual loss.” Gertz v. Robert Welch, 6
Inc., 418 U.S. 323, 349 (1974). Gertz recognized the 7
tension between the state’s interest in protecting a 8
citizen’s reputation on the one hand, and the 9
“constitutional command of the First Amendment” on the 10
other. Id. There, the question was whether the state’s 11
common law of defamation provided an action based upon 12
constitutionally protected speech. The Supreme Court found 13
that states were prohibited by the First Amendment from 14
permitting recovery of presumed or punitive damages absent a 15
showing of malice. Id.7
16
This case does not require us to measure the 17
constitutional dimensions of a state’s tort law. It simply 18
asks: is the injury presumed by state law to arise from mere 19
utterance of words solid enough ground on which to construct 20

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8Some other appellate courts have rejected similar attempts to use
allegedly defamatory statements, without a showing of harm, as a basis to
claim First Amendment retaliation. While our sister circuits apply a
different standard, inquiring in all cases whether a person of “ordinary
firmness” would have been deterred by the alleged retaliation, even under this
standard allowing for a broader range of actionable conduct they have
consistently rejected claims like Zherka’s. This similarity of outcome
confirms our sense that per se defamation is insufficient to establish a
constitutional tort. See, e.g., Zutz v. Nelson, 601 F.3d 842, 849 (8th Cir.
2010); Mezibov v. Allen, 411 F.3d 712, 722 (6th Cir. 2005).
Page 10 of 12
a federal constitutional tort claim? We have before us, in 1
a sense, “speech against speech.” Zherka’s publications are 2
core protected speech under the First Amendment. Amicone’s 3
alleged retaliation did not come in the form of denial of a 4
permit or threat of a lost contract. Rather, it was a group 5
of statements – none very kind – about Zherka. Retaliatory 6
insults or accusations may wound one’s soul, but by 7
themselves they fail to cross the threshold of measurable 8
harm required to move government response to public 9
complaint from the forum of free speech into federal court. 8
10
Our holding today does not rule out the use of non-per 11
se claims of defamation in § 1983 First Amendment 12
retaliation claims. Where concrete harm is alleged and 13
specified, the claim may proceed. Allegations of loss of 14
business or some other tangible injury as a result of a 15
defendant’s statements would suffice to establish concrete 16
harm. But the presumed injury of New York’s theory of per 17
se defamation is inadequate. 18

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9Our sister circuits have explicitly left this possibility open as a
result of their reliance on the “person of ordinary firmness” standard in all
types of First Amendment retaliation cases. See, e.g., Mattox v. City of
Forest Park, 183 F.3d 515, 521 (6th Cir. 1999) (“We recognize that in some
cases ‘injury based on embarrassment, humiliation, and emotional distress’ is
sufficient to be actionable under § 1983.” (quoting Bloch v. Ribar, 156 F.3d
673, 679-80 (6th Cir. 1998))). By contrast, our requirement of actual
chilling or concrete harm in this particular type of retaliation case demands
more than the test applied by our sister circuits.
Page 11 of 12
We need not decide if allegations of emotional and 1
psychological harm would establish compensable injury in a 2
First Amendment retaliation claim. 9 Zherka did allege both, 3
but in a most cursory fashion. As pleaded, the allegations 4
are insufficient to establish facial plausibility under the 5
standard set by Bell Atlantic Corp. v. Twombly, 550 U.S. 6
544, 556 (2007). In any event, Zherka’s attorney affirmed, 7
in response to a direct question from Judge Seibel, that per 8
se defamation was the only harm alleged. 9
The arena of political discourse can at times be rough 10
and tough. Public officials must expect that their 11
decisions will be subjected to withering scrutiny from the 12
populace. A public official’s response to that criticism is 13
subject to limits, but the injury inflicted by that response 14
must be real. Without that limitation, the Constitution 15
would change from the guarantor of free speech to the 16
silencer of public debate. 17
18

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Page 12 of 12
III. CONCLUSION 1
2
The district court’s judgment of December 22, 2009 3
dismissing with prejudice Plaintiff-Appellant’s First 4
Amendment retaliation claim is hereby A FFIRMED. 5

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