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VOCAL NATIONAL FUEL CRITIC WINS APPEAL ON FREE SPEECH

Curtis W. Lee, the whistle-blower who challenged National Fuel Gas Co. in court for years, can at least utter the giant utility's name in public again.

The Appellate Division of State Supreme Court in Rochester ruled late Friday that Lee's constitutional rights of free speech were violated when a lower court prohibited him from making any reference to National Fuel unless it applied to his utility bill, his shares of stock, or his defense.

The appeals court also ruled that State Supreme Court Justice Joseph G. Makowski, who imposed the gag order, overstepped his bounds by ordering Lee to seek psychiatric help and perform 300 hours of community service.

"I'm very happy to get my freedom of speech back," Lee said Saturday. "It's just a shame it took me two years, $14,000 in legal fees, and hundreds of hours of my time."

Lee, an attorney and former National Fuel executive, did not win a complete victory in his appeal of Makowski's rulings.

Still standing is the decision that Lee violated attorney-client privilege by continuing to make allegations against National Fuel. He was found in contempt for ignoring orders to stop making the allegations, and the court found "no merit" in his effort to overturn earlier verdicts against him.

The ruling was hailed by Ross Scott, who represented Lee along with David G. Jay of Buffalo.

"It finally puts a lid on judges who arbitrarily restrict people's freedom of speech," Scott said. "Judges get quite out of line in punishing people for exercising their free speech."

Scott also said the ruling found Makowski exceeded his authority by ordering Lee to seek psychiatric treatment, even ordering drug testing. Scott said the psychiatrist eventually assigned to the case found no reason for Lee to receive psychiatric treatment.

National Fuel spokeswoman Julie Coppola Cox noted that the ruling affirms 35 criminal counts.

Cox explained that while Makowski's order "broadened" restrictions against Lee's speech, earlier rulings prohibited him from violating what the courts determined to be attorney-client privilege.

She said National Fuel lawyers have not studied the decision carefully enough yet to determine any future course.

Makowski was unavailable to comment.

National Fuel had repeatedly sought Lee's incarceration.

During 2003, Lee complained in various letters about compensation given retired National Fuel executive Bernard J. Kennedy that he said will eventually total $67 million; said National Fuel was bluffing about moving out of Western New York if it didn't get tax benefits; and filed Freedom of Information requests seeking court documents on the state Public Service Commission's case against National Fuel in the death of an elderly woman whose heat was turned off by the utility.

e-mail: rmccarthy@buffnews.com

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