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Judge refuses to dismiss Lockport candidate's First Amendment lawsuit

A federal judge has refused to dismiss a $100,000 lawsuit filed by a political candidate who claims his free speech rights were violated during the 2013 election campaign.

David J. Mongielo, who has a long history of run-ins with the town government, ran for Lockport town supervisor as a Conservative in 2013. He lost to the Republican incumbent, Marc R. Smith, who is now the town's economic development director.

During the race, Mongielo self-published a free newspaper that accused Smith of "ballot manipulation."

The paper also carried an advertisement for a fundraising event to benefit the South Lockport Fire Company, of which Mongielo was then a member.

But not for long.

According to the lawsuit, the fire company's then-president, Peter Smith - no relation to Marc Smith - suspended Mongielo on Election Day 2013 after Marc Smith threatened to cut the fire company's aid from the town. Mongielo immediately resigned from the fire company and has never been reinstated.

The town did not reduce its funding for the fire company.

His lawsuit contends his resignation was forced and resulted from retaliation for Mongielo's exercise of freedom of speech.

"He was suspended. That's the retaliation," said James M. Ostrowski, who's Mongielo's attorney. "Whether they carry out a threat doesn't matter."

Mongielo filed suit in U.S. District Court last November, three years after the alleged incident, against Marc Smith, Peter Smith and the South Lockport Fire Co., seeking $100,000 plus punitive damages.

U.S. District Judge Michael A. Telesca rejected the defendants' effort to have the case dismissed in a May 16 ruling.

The case may turn on a text message Peter Smith sent to Mongielo on Election Day 2013.

According to the lawsuit, the text said, "I hate to do this but I feel I need to suspend u until Friday when we have a special ex meeting. I ts over the articles/ad in the community news. Judt  got off phone with marc smith and his council is all over this. If we don’t act I’m afraid the situstion will only worsen. So for now please stay away per your suspension. We will discuss it further on Friday."

Peter Smith's lawyer, Eric M. Gernant, acknowledged in his written answer to Mongielo's complaint that Peter Smith sent a text to Mongielo, but denied that Smith told Mongielo that the supervisor had threatened the fire company's town funding.

Daniel T. Cavarello, attorney for Marc Smith, denied in a court filing that the then-supervisor threatened South Lockport's funding. He argued that Smith couldn't have taken unilateral action against the fire company, and at any rate, the fire company had a binding contract with the town to receive its annual stipend.

"The legal relationship between the Fire Company, Marc Smith, and the Town Board may ultimately foreclose (Mongielo's) claim against Marc Smith," the judge noted.

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