County seeks gag order on videotape

A federal judge would order the jail closed if the sales tax fails, the prosecutor said.
By PETER H. MILLIKEN
VINDICATOR STAFF WRITER
YOUNGSTOWN -- A visiting judge will view a videotape of a program featuring excerpts of video depositions from Mahoning County Commissioners Anthony Traficanti and David Ludt before deciding whether the program can be aired on local TV stations.
Judge Richard M. Markus took under advisement the county's request for a temporary gag order to bar the Ohio Valley Mall Co. and its lawyers from publicly disseminating matters pertaining to OVM's lawsuit, which seeks to block the county from spending money to renovate Oakhill Renaissance Place to accommodate the county's Department of Job and Family Services.
The county bought Oakhill, the former Forum Health Southside Medical Center, last summer in U.S. Bankruptcy Court for 75,000.
The tape, containing excerpts from depositions taken for OVM's lawsuit, was sent to Judge Markus, after a telephone conference late Wednesday between the judge and lawyers for OVM and the county. OVM, which bills its complaint as a taxpayer's suit, is JFS' current landlord at Garland Plaza on the city's East Side.
John J. Cafaro, executive vice president of the Cafaro Co., parent of OVM, said his company bought a half-hour of air time, and the program is scheduled for broadcast at 11:30 a.m. Sunday on WFMJ-TV, Channel 21, and WKBN-TV, Channel 27.
Concern over tax issue
In its request for the gag order, the county says it believes the program will air again May 6, just two days before the county's half-percent sales tax renewal will appear on the primary ballot.
The tape features statements concerning Oakhill from Traficanti and Ludt, which were made under oath and under questioning by Cafaro's Cleveland lawyer, Tom Anastos, Cafaro said. Whenever Traficanti and Ludt make an inaccurate statement, the screen goes to black and the correct information is presented on a slide, Cafaro said.
In a recent news conference, Anastos suggested the sales tax might be used to subsidize Oakhill.
"Discovery depositions by their nature are not intended for public consumption as news," the county prosecutor's office argues in its motion for the gag order. The county, which asks that the gag order extend until May 9, 2008, also says the excerpts cannot accurately portray the eight hours of depositions taken from Traficanti and Ludt.
"I think it's a restriction on political speech, which is, in fact, a violation of our First Amendment rights, and we hope the judge will see it that way," Cafaro said of the county's gag-order request. "There are no personal attacks of any type within this. It is all policy related," Cafaro said of the program.
Gains' response
"I'm a big fan of our constitution and the amendments, but this is a little different because these depositions were taken in a lawsuit, and I just don't think that it's an appropriate use of the depositions'' to air excerpts from them on TV, County Prosecutor Paul Gains said in a Thursday interview.
"We think that it's not a prior-restraint issue. It's not a First Amendment issue. It's an issue involving the court controlling the conduct of clients" who are parties to a lawsuit, Gains added.
In its request for the gag order, the county said the federal judges overseeing an inmate lawsuit concerning jail crowding have recognized that the county won't be able to operate its jail without the sales tax.
A lack of sales tax revenue would likely force closing of the jail and relocation of up to 300 inmates charged with violent felonies to other lockups and release of all other prisoners, the county said.
Gains said U.S. District Judge Dan Aaron Polster told him he would order the county jail closed if the tax renewal fails.
WKBN-TV's general manager, David Coy, could not be reached to comment.
WFMJ comments
John Grdic, general manager of WFMJ-TV, confirmed that the program is scheduled to air at 11:30 a.m. Sunday and said he believes it will air again at 11:30 a.m. May 6.
"Anybody has a right to buy advertising as long as it's not libelous," Grdic said.
If Judge Markus tells Cafaro to withdraw the broadcast, Grdic said he assumes Cafaro would comply. If Cafaro didn't comply with that order, Grdic said he'd consult with the TV station's lawyer on how to proceed. If the judge were to directly instruct the TV station not to air it, Grdic said he'd appeal the order.
Grdic said he hadn't personally viewed the Cafaro program tape, but he said the station's lawyer, Steve Bolton, did view it and found it nonlibelous and acceptable for broadcast.
The program will begin with a disclaimer saying it is a paid commercial broadcast, which does not necessarily reflect the opinions of the station, its staff or management, Grdic added.