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Pembroke will play for the Rotary Tournament championship on Thursday after knocking off Notre Dame in a first-round game on Tuesday, 50-43.

Elle Peterson scored 15 points, and had five assists and four rebounds to help lead the Dragons to the win in the Girls Basketball game.

Seneca Calderon scored 11 points and had four assists and five rebounds. Jaden Hootman scored seven points. Morgan Conibert scored six and blocked three shots. Regan Schneider grabbed seven rebounds while scoring four points.

For the Irish, Nina Bartz scored 15 points, Emma Sisson, 10, and Sofia Falleti, eight.

Jasmin Macdonald's 19 points weren't enough to lift Batavia over Cal-Mum in Tuesday's opening game of the 2023 Rotary Tournament at GCC.

Batavia lost 52-54.

Isabella Walsh scored eight points, Anna Varland, six, and Violet Lopez, five.

Photos by Debra Reilly.

It was another busy news year in Genesee County, with lots of big stories, such as the ongoing saga of Ellicott Station, which even cast a shadow over a planned development for Pembroke.

That wasn't the only sign of economic growth in Pembroke, which is the site of a distribution center under construction and a planned new travel center, growth that seems largely driven by anticipated new jobs at WNY STAMP in Alabama, a GCEDC project that was mired in controversy in 2023, beset by lawsuits and environmental concerns.

In 2023, the environment didn't always play nice with Genesee County.  In June, wildfires in Canada raised concerns locally over air quality, and Bethany, along with Pavilion and Pembroke, have been suffering through water shortages.

Counties throughout upstate New York hit the panic button in the spring when rumors circulated that New York City was planning to bus asylum seekers and other immigrants to rural parts of another state, causing Genesee County to join in declaring a state of emergency and banning local facilities from housing migrants.

The return of Wings Over Batavia capped Genesee County's 2023 summer.

There were no major crimes, but a spate of random gunfire incidents caused concerns among Batavia residents. 

In the arts, Batavia Players opened 56 Main Theater and The Harve made for a more entertaining June.  

In sports, both Notre Dame (baseball) and Byron-Bergen (Boys Soccer) made runs at state championships. Pembroke won its second consecutive state championship in 8-Man Football.

Readers visited the site 1.4 million times in 2023 and viewed 9.2 million pages.

The big stories aren't always the most read stories.  Here are the 15 most viewed stories according to stats for The Batavian in 2023.

• Air quality alert issued for Sunday, by Howard Owens
• Pavilion school board hears public outcry over SRO issue and chooses to remain silent, by Howard Owens
• Puerto Rican restaurant to serve up 'a nice little change' in Batavia, by Joanne Beck
• Zeliff residence up for sale, businessman to remain locally involved, by Joanne Beck
• O'Lacy's closes, owner thanks patrons and staff with 'heavy heart,' by Joanne Beck
• A friendly merger: H.E. Turner and Gilmartin sign deal, by Joanne Beck
• Soft opening launches WNY Plate at downtown takeout, by Joanne Beck
• Lawsuit by ex-wife against David Bellavia, Orleans County, alleges false arrest as part of ugly divorce, by Howard Owens
• Hawley criticizes NYS plan to require background checks for ammo purchases, by Press Release
• Sweet Betty's reopens with new owners and ready to please,  by Joanne Beck
• Nightmare on Bank Street gives the green light to a Halloween scare, by Howard Owens
• Batavians purchase Oakfield Hotel and Bowling Lanes, plan significant upgrades throughout, by Mike Pettinella
• Person ejected from vehicle that strikes tree in Stafford, by Howard Owens
• Troopers investigating serious injury accident on Route 98 in Batavia, by Howard Owens
• Sheriff's Office looking for person of interest in hit-and-run in Batavia Downs parking lot, by Howard Owens

Many of our stories were reported first on The Batavian, and we broke some important stories, most notably the travails of Ellicott Station.  If you value great local reporting, you can help ensure it continues.  Join Early Access Pass today.  As a member of Early Access Pass, not only are you supporting your local community by supporting local news coverage, you are getting early exclusive access to our most important stories.  You also get early access to Deal of the Day.  Currently, you get a four-hour advance (look for this window of time to increase in 2024) on important stories and Deal of the Day.

We wish you a Happy New Year and thank all of our loyal readers and sponsors for your ongoing support.

The Christmas Eve Service at City Church starts at 10 a.m.

I wrote these words in March 2016.

For at least two weeks, I'm going to be unable to do much work.

Friday morning I was diagnosed with a detached retina in my right eye. I'm having surgery this morning. I get to spend the next week in a constant facedown position. It will be at least two, possibly three, weeks before I can return to work.

Well, history repeats.  Almost exactly.

Last Wednesday, I covered the food distribution at St. Anthony's and noticed no issue with my vision.  I remember specifically looking through the viewfinder on a couple of photos and lining up how the scene was framed and didn't notice any problem with my vision.  That night, I covered a candlelight service in Le Roy, and as soon as I put the viewfinder to my right eye, I knew something was wrong.

I was diagnosed with a detached retina on Friday.  Today, surgery.  

Again, at least two weeks of facedown recovery.  I looked just now at notes to readers in 2016 and I was actually out of work for three weeks.  This time, the doctor is saying a week or two of recovery.  The detachment in 2016 occurred because I got hit in the eye with a basketball.  This time -- it happened on its own.  This time, I also got to the doctor faster and am getting treatment sooner.

In 2016, after surgery, I was told I couldn't read, no email, no websites, no books, no magazines, nothing. I haven't been told that yet, but I'm assuming I'll get the same instructions.

• The main point of contact for news is News Editor Joanne Beck, joanne@thebatavian.com
• Advertising issues/inquiries should be sent to Lisa Ace, lisa@thebatavian.com
• Issues with Deal of the Day should be directed to Kara Richenberg, kara@thebatavian.com
• Press releases and news announcements, as always, should be sent to news@thebatavian.com

Mike Pettinella will help a little more with coverage, which I greatly appreciate, but he has limited availability because of other responsibilities.  

We have a big pool of freelance photographers available to help us out now -- many more than in 2016 -- but they all have full-time jobs, families, etc. I'm sure they will step up where they can, but we also encourage community groups to submit their own photos and information about events to news@thebatavian.com.

I will be turning off the scanners in my house for the duration. I don't want to feel tempted to get on the computer to post something or feel frustrated that I can't go out to cover something.

We will inevitably miss some stories.  This wouldn't be as much of an issue if we had more help.  We would have more help if more people would sign up for Early Access Pass.  This circumstance clearly highlights why it is important for you to join Early Access Pass.  To join, click here.

In honor of Bob Zeagler, who was well known in Batavia for decorating his Jeep Cherokee for the various holidays throughout the year, especially Christmas, and dressing up in detailed costumes to match, area residents again on Sunday held the Third Annual Bob's Christmas at Batavia First Presbyterian Church.

This year included a Santa's Workshop with presents for kids.

Photos by James L Burns. 

At a gala night celebrating the holiday season -- with the movie theme "White Christmas -- and helping raise funds to benefit students at Genesee Community College through scholarships, Jeremy and Sandra Liles were honored as co-chairs of the 31st Encore event in the Stuart Steiner Forum.

Jeremy Liles is owner of Oliver's Candies in Batavia and Sweet Life Country Store in Elba.

The brief program was followed by a performance of the Genesee Symphony Orchestra.

Previously: Encore gala returns for 31st season to spread 'White Christmas' cheer

Town of Batavia Fire has been dispatched to Veterans Memorial Drive in Batavia following a report of a box truck on fire that is hauling mattresses.

UPDATE 1:42 p.m.: Fire is under control.

Free speech and the right to petition your government over grievances: two rights clearly protected in the United States by the First Amendment.

But when does complaining to government officials cross the line into harassment?

That's a high bar to cross, and should be, according to Constitutional scholar Jared Carter.

Carter is counsel with the Cornell Law School First Amendment Clinic, based in Ithaca, and a professor of Law at Vermont Law and Graduate School. Carter specializes in First Amendment cases.

Wherever that line is between protected speech and harassment, a Batavia mother who became upset in November with how her son's Spanish class at the Middle School was being taught didn't cross it, Carter told The Batavian after reviewing available documents.

The Batavian provided him with documents received from Batavia City Schools, which included emails sent by Kate Long to Superintendent Jason Smith, School Board Vice President John Reigle, along with other district officials, and the charging documents obtained from Batavia City Court.

The Charge
Long, 39, mother of three children, was issued a summons in November and charged with a single count of harassment in the second degree, a violation of Penal Law 240.26(3), which reads:

He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Carter said the language of the statute is too vague and overly broad to fairly apply to speech and is the same language that was once part of the state's aggravated harassment law, which was struck down by a federal court as unconstitutional in 2014.

The former aggravated harassment statute dealt specifically with spoken and written communication that was likely to "cause annoyance or alarm ... for no purpose of legitimate communication." 

In People v. Golb, the court ruled that the former statute violated both the state Constitution and the Bill of Rights.

A similar case, People v. Dietze, struck down Section 240.25 dealing with language that was abusive or obscene with "the intent to harass, annoy, or alarm another person."

In the Golb case, the court held that both cases examined state statutes and said both failed to provide necessary limitations on the scope of communications that were criminally prosecuted. 

"They're (prosecutors) skating on very thin constitutional ice, if any ice at all," Carter said of the arrest and prosecution of Long. "The First Amendment robustly protects Freedom of Speech, and the freedom to criticize government action. That would include criticizing the way that a school handles itself. Now, are some of her emails obnoxious? Perhaps. But the First Amendment very clearly, in my view, protects even obnoxious and, quite frankly, ugly speech, and unless speech fits into one of the very narrow few exemptions to the First Amendment, then it's going to be protected."

Carter said while we're talking about different statutes, they're essentially the same exact language that makes the harassment 2nd statute, when it involves prosecuting speech, is not likely to be found Constitutional if challenged.

Chain of Emails
The trail of events that led to Long's charge began in the middle of September when Batavia Middle School Principal Nate Korzelius informed parents that the teacher originally assigned to teach Spanish would be taking a long-term leave of absence.  He said the district conducted a comprehensive search to find a certified Spanish substitute but was unable to find a qualified teacher to take over the class. 

Instead, he said, "We will utilize an online program called AcceleratedU. This program has been thoroughly vetted and widely used by students nationwide, demonstrating its effectiveness in enhancing students' learning experience."

He invited parents to contact school officials with any problems or concerns.

A couple of weeks later, according to emails obtained from the district through a Freedom of Information Law request by The Batavian, Kate Long did express her concerns.

She said AcceleratedU was not a "long-term solution" for a sub.  

"I think by now, you know this based on the grades of students," she wrote in an email to school officials on Nov. 1.

"The school needs to start looking for a long-term sub and put some actual effort into it," she wrote. "I'm getting pretty sick of spending every single evening being my son's unpaid Spanish teacher. Oh yeah, and I don't get a break on my taxes, either."

Superintendent Jason Smith responded the next morning and wrote, "We fully understand that there have been concerns with this, and despite our efforts to find a sub, including speaking with three retired teachers, networking across several counties for candidates, we literally had no one apply or who was even interested. There is, in fact, a severe shortage of Spanish teachers."

He also said the district had contacted the software company several times with complaints about the program, and while the company responded, "We know issues remain."

Long was not satisfied with the response and began a series of emails, often snarky, accusing district officials of not caring, of not doing enough, and of her role as an "unpaid" teacher.

She sent 16 emails over eight days. (The charging documents say 12 emails over eight days,  but The Batavian counted 16 emails sent by Long in response to its FOIL request.)

Long, who studied Spanish in college and told district officials she lived for a year with a Spanish-speaking family, had specific complaints about grammatical errors she found in the program. 

On Nov. 3, the board's vice president, John Reigle, responded and again reiterated the efforts undertaken by the district to hire a Spanish sub and noted that Smith had replied to her email the day before and invited her to meet with school officials.

That night, she wrote district officials and board members and said, "Hope you all are sleeping very nicely every night. I'm not. Look forward to more messages every single day that you lack to get a Spanish teacher."

She wrote individually to Reigle and said, "What a very eloquent way to say,  'I don't care.' Thanks a lot. That was sarcasm.  Look forward to more emails until you DO SOMETHING."

In all, she sent 11 emails on Nov. 3 alone, concluding one that read, "I guess it would have been in my best interest to say, 'I don't care,' like all of you."

In his sworn complaint, Board President John Marucci quoted from Long's second-to-last email, sent on Nov. 8 at 9:37 p.m. 

"Fuck you all. You are all jokes. You call yourselves educators. You reap what you sow.”

Marucci wrote, in his statement, that Long was complaining about online learning of Spanish in her emails but also stated that she sent "these emails with no legitimate meaning or purpose to the point that we as the City of Batavia School Board of Education feel like we're are being harassed by Kate Long by her alarming and annoying emails. I would like to pursue any and all legal charges against Kate Long."

Political Speech
Carter said Long's emails are political in nature, seeking correction to what she believes is a wrong perpetrated by a government body and is, therefore, protected speech.

"I think it's fair to say that is some of the most protected speech that there is," Carter said. "I'm not saying at some point, you can't have emails becoming harassment. But I think 16 emails over the course of eight days? I don't see how we've crossed that line. And I think courts are going to look at it very skeptically if she were indeed to be prosecuted."

The Batavian emailed several questions to District Attorney Kevin Finnell.  We wanted to know if Batavia PD consulted with his office prior to the arrest of Long and if he had any Constitutional concerns about the case.

"Our office does not generally participate in the investigation of criminal matters," Finnell said. "While we remain available to consult with law enforcement during an investigation, my office did not offer any input or advice in this particular case.  Even in cases where we do offer advice during an investigation, the choice of what offense(s) to charge is ultimately determined by law enforcement."

As for the Constitutional issue, Finnell said he and all of his ADAs are sworn to uphold the Constitution and are mindful of that in prosecuting every case.

In 2015, former District Attorney Lawrence Friedman, in response to the Golb ruling, sent a memo to local law enforcement warning the departments to no longer arrest people under the portion of the aggravated harassment law that was struck down.  He did not raise concerns about the similar language contained in the harassment 2nd statute, and Finnell noted that there is, in fact, a difference between the statutes.

In the Dietz and Golb cases, Finnell said, the courts were reviewing statutes that dealt specifically with speech. 

"The statute charged here is different in that it does not target pure speech but rather proscribes behavior," Finnell said. "It is a violation of Penal Law 240.26(3) to engage in a course of conduct or repeatedly commit acts which serve no legitimate purpose and which have the effect of alarming or seriously annoying the targeted individual.  While that conduct could include speech, it is the act or conduct itself that constitutes a violation of law."

Carter said that calling Long's emails "conduct" bypasses the fact that she was engaging in speech, and no matter what other word you apply to it, whether you describe hitting the send button an email as "conduct," it's still speech.

"I don't think that's going to carry a lot of water," Carter said. "These are emails, and there's plenty of case law out there that talks about expressive conduct, which I don't even think this is, I mean, these are emails, this is communication, plain and simple. And I just don't think they're going to be able to convince a court, and quite frankly, the material that you sent that the district attorney shared, to my mind -- I just don't see this being prosecuted. I don't know how you could possibly criminalize 16 emails, even one that used a cuss word and be consistent with the First Amendment under a harassment statute, the bulk of which I think has been essentially struck down."

Cases that involve the Supreme Court upholding conduct as speech:

• Stromberg v. California, which, in 1931, protected as free speech, the right to display a red flag;
• United States v. O’Brien, which, in 1968, protected conduct that conveys a message in a case where a war protester burnt his draft card;
• Texas v. Johnson, in 1989, protected flag burning as political expression.

Profane speech, in Cohen v. California (1971), is also protected.

District Response
The Batavian also asked Superintendent Jason Smith and Board President John Marucci questions regarding the Constitutional issues raised by the case. 

Both said they thought Long's emails crossed a line, and they turned to the police to help bring the communications to a halt. Smith said it is up to the justice system to decide whether Long's rights have been violated but that she was arrested within the scope of existing state law. 

Marucci said he and the board respect the legal process and Constitutional rights but that they were facing an escalating concern and needed the assistance of the legal system, which will decide how best to deal with the case.

"Our decision was not about seeking charges against a citizen," Marucci said. "Instead, it was a necessary response to escalating inappropriate emails despite our attempts at dialogue. We value and address all respectful and constructive conversations with parents and community members. In this specific instance, it was essential for us to take a firm stance to protect our administration and staff from unnecessary harassment; we could not stand idly by, and therefore, we made the decisive choice to speak up and act in defense of our school community's well-being."

Smith said there are proper ways for residents to raise issues with the administration and school board, and the district respects the right of residents to disagree with their decisions. He doesn't believe, he said, that administrators and elected officials should necessarily be protected from annoying and upsetting speech but that this was an exceptional case. He said it is important to maintain a respectful and safe environment for everyone in the school community.

"While we fully support the right of individuals to ask questions and hold our school leadership accountable, this does not extend to the point of harassment or the use of inappropriate and inflammatory language," Smith said. "In this particular case, our decision to involve legal action was not taken lightly. It was a response to a pattern of communication from the parent in question that had escalated beyond acceptable norms of civil discourse. Our actions are in no way intended to infringe upon civil rights or to discourage constructive feedback and engagement from our community. Instead, they are a necessary step in protecting the well-being and safety of our school board members and staff and upholding a standard of respect and civility in our communications."

To read the full Q&A with both Smith and Marucci, click here.

Prior Restraint
Among the documents obtained by The Batavian from the school district is a letter from Smith to Long. It is dated Nov. 10 and informs Long that the matter has been referred to Batavia PD. It's the first time, at least in the communications obtained by The Batavian, that anybody with the district notified Long that officials found her emails annoying. 

In it, Smith informs Long that her email address has been blocked, prohibiting her from communicating with any other district official except Smith, that she is not to contact any other district employee, and that she may not use the district's app, Parent Square, to contact staff members.

Carter said this letter is also Constitutionally problematic, though the case law on the matter is not settled.

"I could see a strong argument that blocking a member from the public from being able to send emails to government officials would have First Amendment implications," Carter said. 

A case against former President Donald Trump regarding his practice of blocking people on Twitter never made it to the Supreme Court because he left office before the matter was settled. A lower court had previously ruled against Trump, saying he couldn't block people from using a public forum to criticize him. 

There are two other cases pending before the Supreme Court regarding government officials and agencies blocking communication on social media platforms. 

We couldn't find any cases dealing specifically with individual emails to the government or elected officials or using a government-run platform such as Parent Square.

The letter could potentially constitute "prior restraint." Courts have consistently held that the government cannot restrict speech and publication, regardless of any concern about future communication, that has not yet occurred.

It's this block to communication, along with Long's three children still attending school, that may be why her attorney, Tom Trbovich, from Buffalo, seems hesitant to fight a First Amendment case.

He said he would love to have a case he could take to the Supreme Court and win. It would help his career.  But his first obligation is to his client and what is in the best interest of her and her family. He said while he's willing to do whatever his needed, it's also important to be realistic about the situation.

"As a secondary goal, I want to make sure that, you know, it'd be nice to make sure that relations and stuff like that with the families in the school workout, as well," Trbovich said after Long's initial court appearance, where she entered a not-guilty plea. "I want to make sure it's a win-win situation for everybody. And it's just going to take a little bit of time. I don't want to just do something quick in court. I want to do what's in the best interest of everybody."

Scotty DiMartino, Cassie Piccione and Tom Burke used their stagecraft experience to put on a light show at DiMartino's residence on Woodrow Road in Batavia on Saturday evening.

Photos by Nicholas Serrata

Byron-Bergen was beat Saturday in Girls Basketball by Greece-Arcadia, 40-31.

Janessa Amesbury scored 12 points for the Bees. Oliva Senf scored nine.

Photos by Jennifer DiQuattro

Elba beat Jasper Troupsburg in Boys Basketball on Saturday, 56-33.

Angelo Penna led the way to victory with 24 points. Nicholas Scott scored 15.

Photos by Debra Reilly.

Notre Dame topped rival Elba in Boys Basketball on Friday, 54-42.

For the Irish, Jackson Sherwood scored 26 points.  Makyell Walker scored eight.

For the Lancers, Nichols Scott scored 11, while Angelo Penna scored nine, and Ashton Bezon picked up eight.

Photos by Debra Reilly.

A man has reportedly exited a GMC SUV at Ellicott Street Road and Telephone Road, Pavilion, and is being chased by a female.

The male is described as mid-30s, white, blond, wearing a snowmobile coat and orange shirt.

Law enforcement is dispatched.

The Genesee Community College Foundation hosted its 31st season of Encore on Friday in the Stuart Steiner Forum.

The gala, sponsored by Tompkins Financial, helps the foundation raise money to support student scholarships.

This year's co-chairs were Jeremy and Sandra Liles. The theme of the event took its inspiration from the 1954 classic holiday film, "White Christmas." 

Genesee Symphony Orchestra performed a selection of holiday favorites.

Jeremy Liles is a native of Genesee County, the owner of Oliver's Candies and Sweet Life Group, its parent organization, and has managed Oliver's Candies for over 20 years. Jeremy is actively involved in his local community and currently serves on the Genesee County Chamber of Commerce Board of Directors and has served on the Batavia Town Planning Board. Sandra is a New Hampshire native who moved to Genesee County in 2005. 

Sandra opened Sweet Life Country Store in Elba and has managed the operation for the past five years. She says she enjoys working with many different local product vendors and artisans to make their wares available to the public at this store, as well as partnering with other local businesses to benefit the community. Jeremy and Sandra reside in Batavia with Tahlia, the youngest of their three children.

These photos capture the cocktail hour and dinner service. The Batavian anticipates further coverage on Monday.