The Maryland governor’s ban on talking to two reporters trickles down
From the Spring 2005 issue of The News Media & The Law, page 17.
By Kirsten B. Mitchell
When Maryland Gov. Robert Ehrlich’s press secretary clicked “Send” on a now infamous e-mail limiting government employee contact with two Baltimore Sun journalists, she snapped a collective muzzle onto Maryland public information officers and state agency officials and sent Ehrlich into the ranks of politicians whose similar edicts landed them in legal trouble.
In February, a federal district judge dismissed a lawsuit the Sun brought against the governor over the November order, but a handful of federal trial and appellate court decisions in cases with similar circumstances indicate journalists have a constitutional right of access to government information. At issue is the extent to which the First Amendment bars government officials from controlling access to public officials and information.
The U.S. Court of Appeals in Richmond (4th Cir.) could rule in the Sun‘s appeal later this year. Neither that court — which includes federal courts in Maryland — nor the U.S. Supreme Court has decided the specific issue, though a Fourth Circuit panel ruled in a similar case in 1998. Briefs in the Sun‘s appeal were due May 16.
The Ehrlich freeze-out began with a Nov. 18 e-mail from Press Secretary Shareese DeLeaver directing everyone in the state’s executive branch not to speak with Sun Statehouse Bureau Chief David Nitkin — now the paper’s Maryland political editor — and columnist Michael Olesker.
“Do not return calls or comply with any requests,” the e-mail read. “The Governor’s Press Office feels that currently both are failing to objectively report on any issue dealing with the . . . Administration.”
Ehrlich’s attorneys say in court papers that the edict was aimed at 225 state officials who received the e-mail, which the Sun‘s attorneys dispute, saying the directive was aimed at thousands of employees in the executive branch. Still, it doesn’t really matter whether “four or 4,000” were gagged, the edict is unconstitutional, the Sun‘s attorneys say.
The ban came after Ehrlich was angered by a series of articles on a proposed no-bid land deal between the state of Maryland and Willard J. Hackerman for an 836-acre forest that the state bought with land-preservation money. The land deal, which never materialized, would have given Hackerman the same price the state paid for the property and tax breaks worth millions of dollars.
Ehrlich called reporters’ access to information “an arrow in my quiver” and said that the ban is intended to “chill” Nitkin’s and Olesker’s words. The Sun said Ehrlich and his press officers made “retaliation against free expression the official policy of the State of Maryland.”
U.S. District Judge William D. Quarles Jr. in Baltimore dismissed the case in February, ruling that journalists do not have a greater First Amendment right than private citizens to access government information.
“The right to publish news is expansive. However, the right does not carry with it the unrestrained right to gather information,” Quarles wrote, saying the Sun sought “privileged status beyond that of the private citizen.”
Quarles missed the point, said Charles D. Tobin of Holland & Knight, outside counsel for The Sun.
“If you read the judge’s decision you will not see the word retaliation once. He did not rule on what we argued. Instead he bought into the governor’s recasting of what our argument was about and then ruled against us,” he said.
Among the cases Judge Quarles cited is Branzburg v. Hayes, in which the U.S. Supreme Court ruled in 1972 that reporters have no privilege from testifying before grand juries. Judge Quarles reasoned that the ruling does not apply just to grand jury testimony.
But Tobin says Branzburg doesn’t apply. “It’s a red herring because the argument we made is not that we have a right to force the government to give us information. Here they are giving it out to ordinary citizens in Maryland — unless you are Mr. Nitkin or Mr. Olesker,” he said.
Legal precedent in Hawaii, Illinois
Thirty years ago, Honolulu Mayor Frank F. Fasi issued a directive that his personal policy was not to deal with Honolulu Star-Bulletin city hall reporter Richard Borrecca, whom he concluded was “irresponsible, inaccurate, biased and malicious in reporting on the mayor and the city administration,” according to U.S. District Court documents from the 1974 case Richard Borreca v. Frank F. Fasi.
“Fasi expressed his dislike for Borreca personally and stated that he would not talk to Borrecca ‘until Hell freezes over,'” but it was Borreca’s barring from four city hall news conferences in November and December 1973 that sparked the paper to ask a federal judge for a preliminary injunction.
U.S. District Judge Samuel P. King issued the injunction, ruling that the First Amendment includes “a limited right of reasonable access to news” and that excluding Borreca would “result in irreparable injury to Borreca and to his newspaper.” He also ruled that there was no compelling government interest in banning Borreca and that the mayor’s actions were “a form of censorship.”
A federal judge in Illinois ruled similarly 27 years later in a case involving a reporter barred from observing Cook County’s Chicago Legal Aid for Incarcerated Mothers classes. Accredited reporters were routinely admitted, but Tori Marlan of The Chicago Reader was refused access in retaliation for a story she wrote.
“The [Department of Correction] may not have had a legal obligation to admit Marlan. But it may not refuse to do so because she exercised her First Amendment rights,” U.S. District Judge James Moran wrote in 2001 in The Chicago Reader v. Michael Sheahan.
Neither the Hawaii or Illinois cases were appealed, but the U.S. Court of Appeals in Cincinnati (6th Cir.) ruled in 1996 that officials in the Village of Michiana were not legally immune for retaliating against journalist Noreen McBride, a freelance reporter for New Buffalo Times, the South Bend Tribune and WEFM radio.
She alleged in her lawsuit against village officials that for three years they retaliated against her for stories on officials mishandling public money, violating the state’s open meetings law and encouraging non-residents to vote in village elections.
The retaliation McBride alleged included officials repeatedly contacting her employers asking that she be barred from reporting Michiana political news and ordering village employees not to speak to her.
Though the case never reached the facts as to whether she was retaliated against, a three-judge panel unanimously upheld a 1995 lower court ruling that the officials could not be granted official immunity.
Ehrlichization of public information
Judge Quarles’ decision in the Ehrlich case appears to be the only recent ruling on the issue. But since the Ehrlich edict, public officials in several communities have issued similar orders.
Charles Davis, executive director of the Freedom of Information Center at the University of Missouri-Columbia, calls the trend “trickle-down fascism” and says the number of government officials who issue commands clamping down on who may speak to reporters is growing.
“It may ebb and flow. I have never seen it anywhere near the flow that it is now. This is a high-water mark,” Davis said.
Youngstown, Ohio, Mayor George M. McKelvey earlier this year barred all city workers from talking with the semimonthly newspaper The Business Journal except to comply with public records requests. The ban came after the Journal won an open records lawsuit against the city seeking public records about a $41 million multipurpose arena and a $1.5 million city land deal that occurred with no formal appraisal and on property with potential environmental problems.
In early February, McKelvey put in writing what he had said orally a few weeks before: that a new city policy forbids city employees from communicating with Journal reporters about any city business.
In the letter to Journal Publisher Andrea Wood, McKelvey said he is not constitutionally bound to speak to the press. He called his actions a “commonly and widely accepted practice of public officials,” quoting but not citing a 1998 case, Snyder v. Ringgold, in which the U.S. Court of Appeals in Richmond (4th Cir.) ruled that reporters don’t have a First Amendment right to equal access of government information. A federal district judge later ruled that an injunction against the Baltimore City Police Department would treat the reporter preferentially and “broaden the existing contours” of the First and Fourteenth Amendments.
McKelvey continued his letter: “The Business Journal should recognize that government officials do not have any obligation to speak with members of the press, and that they cannot be forced to speak with members of the media they believe are untrustworthy. They should also know the ability of the government to ‘control the content of its own speech in ways that it could never regulate or control the content of private speech’ has been recognized as legitimate.”
The Journal sued and awaits a ruling from U.S. District Judge Peter C. Economus. Like the Ehrlich case, Journal lawyers argue that they seek the same access as the public to city officials.
Meanwhile, Journal reporters continue to ask questions in public venues, Wood said.
“It’s very difficult to cover city hall,” she said. “At public meetings we get our questions answered. Otherwise, it’s tedious and difficult.”
City officials are “kind of back-pedaling” since the lawsuit was filed, Wood said. “But the mayor has not lifted his edict.”
In a similar case last year, one of Judge Economus’ colleagues, U.S. District Court Judge Solomon Oliver, refused to grant a Cleveland television station a temporary restraining order it sought against Mayor Jane Campbell. In March 2004, she barred city workers from talking with reporters from WOIO-TV after the station aired a story about Cleveland police officers earning about $84,000 in overtime by driving Campbell and her family around the city and out of state.
“The mayor may exercise her right not to speak to certain reporters that, in her opinion, she views as untrustworthy or irresponsible. . . . Mayor Campbell may make the determination that city administrators and employees may not comment on behalf of the city to members of the media,” Judge Oliver wrote. He relied heavily on Snyder v. Ringgold, as McKelvey did in his letter.
The mayor and the television station later reached an out-of-court settlement that allowed the station’s reporters to return to city hall and interview city employees, The Journal reported.
Such edicts don’t always lead to legal action. Tobin thinks that’s because “most politicians are wiser than the politician who expressly discriminates and retaliates against journalists.”
Frequently, government officials decide such edicts ultimately are not a good idea.
In Phoenix, Ore., Mayor Vicki Bear barred elected officials and city workers from talking with reporters about city business in early March. Instead, journalists were ordered to go through a single contact person, said Scot Bolsinger, editor of The (Ashland) Daily Tidings.
Bear’s February e-mail edict to Daily Tidings reporter Robert Plain read, in part: “Please refrain from contacting department heads or employees as they will not be commenting on issues unless given direction from my office.”
Less than two hours later, Bolsinger said, Bear tried to keep a prescheduled meeting with a city planner and was refused. Plain received another e-mail from Bear: “When I said that there is a contact person for media that is exactly what I mean. That doesn’t mean that you turn around and contact the city’s planning department.”
Bolsinger and Plain did not back down and Bear “completely and utterly rescinded the order within a week,” Bolsinger said.
In Chesapeake, Va., city officials have clamped down on officials talking to reporters from The Virginian-Pilot.
After a series of stories earlier this year about residents of a subdivision finding chemical waste in their backyards and questioning the city’s ability to protect them, city officials further tightened the muzzle in late April, said reporter Claudia Assis.
Information about “everything except the time of meetings” she must now obtain through one person after an order to city officials not to speak with her, she said.
“They don’t do it in a vacuum,” she said. “They do it when they feel cornered or threatened.”
Bolden said cases like Gov. Ehrlich’s that make national news tend to embolden officials.
“Literally, it’s reached the local level where you’ve got volunteer or stipended officials who do not believe in the openness of government,” he said.