Baltimore Sun lawsuit against Maryland governor thrown out

• Journalists have no greater right to government information than the general public and may be shut-out by blanket bans against them, a federal judge ruled Monday.

Feb. 14, 2005 — Journalists do not have a greater First Amendment right than private citizens to access government information, a federal judge ruled today in dismissing a lawsuit against Maryland Gov. Robert Ehrlich for freezing out a Baltimore Sun reporter and columnist.

Ehrlich did nothing illegal Nov. 18 when his press office ordered state public information officers and executive branch officials “not to return calls or comply with any requests” from Statehouse Bureau Chief David Nitkin or columnist Michael Olesker, who both write about state government, Judge William D. Quarles ruled.

“The right to publish news is expansive. However, the right does not carry with it the unrestrained right to gather information,” Quarles wrote in an eight-page ruling which rejected the contention of the Sun’s Dec. 3 lawsuit that Ehrlich’s ban violated the First Amendment. The Sun sought what Quarles called “privileged status beyond that of the private citizen.”

“Because . . . the Sun seeks the declaration of a constitutional right that neither the Supreme Court nor the [U.S. Court of Appeals for the] Fourth Circuit has recognized — and, in fact, seeks more access than that accorded a private citizen — the Governor’s motion to dismiss will be granted,” Quarles wrote.

A history of cases show that “a government may lawfully make content-based decisions in the way it provides press access to information not available to the public generally,” he wrote.

The lawsuit, which named Ehrlich, Press Secretary Shareese Deleaver and Gregory Massoni, deputy director of communications, was filed after several meetings between Sun officials and Ehrlich failed to settle the disagreement over the Nitkin-Olesker ban.

The ban came several days after The Sun published an article by Nitkin about a proposed land transaction that Ehrlich viewed as a personal attack.

Both Nitkin and Olesker recounted in court documents the chilling effect of the order. Nitkin said the governor’s press secretary, the state’s top budget official and a spokeswoman for the Maryland Department of General Services have refused to talk with him about comments made by legislators, state employee health care costs and a public-private contract. Olesker said his phone calls to state workers have not been returned.

Quarles’ ruling cites two recent news articles that did not support the journalists, including a Dec. 9 columnist’s report in The Washington Post that said, “But I don’t see in the Constitution where anyone, even the governor, is obliged to answer the calls of a specific reporter. . . .The Sun should make its case through quality journalism, not legal briefs.” A Jan. 22 editorial in The New York Times said that “[c]ooler heads should prevail in the standoff short of the courthouse.”

Sun Editor Tim Franklin said the newspaper would appeal the ruling to the U.S. Court of Appeals in Richmond (4th Cir.) and seek an expedited hearing from that court, The Sun reported on its Web site.

“The decision is deeply disturbing,” Franklin told the paper. “The court didn’t address the issue of whether it’s OK for a politician to retaliate against any citizen based on what they write or say, and that’s very disappointing. We think he [the judge] missed the point. And hopefully the Fourth Circuit won’t.”

(The Baltimore Sun Company v. Ehrlich; Media counsel Stephanie Abrutyn, Tribune Co., New York, N.Y.; Charles Tobin, Holland & Knight, Washington, D.C.) — KM

Related stories:

• Governor’s press office bans officials from talking to two reporters (11/22/2004)
• Newspaper sues governor over information freeze-out (12/07/2004)

© 2005 The Reporters Committee for Freedom of the Press

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