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As two federal appellate courts consider reporter freeze-outs by public officials, the trend continues in at least four states. From…

As two federal appellate courts consider reporter freeze-outs by public officials, the trend continues in at least four states.

From the Summer 2005 issue of The News Media & The Law, page 19.

By Jennifer Myers

Federal appeals courts in two circuits are considering whether journalists have a right of access to public officials.

Echoing a February federal court decision that two Baltimore Sun journalists do not have a First Amendment right of access to Maryland public officials, a federal judge in Ohio dismissed a similar case in May brought by The Business Journal, a bimonthly newspaper, against the Youngstown, Ohio, mayor.

The Journal sued Mayor George M. McKelvey in February after he forbade city workers from speaking to its reporters. “A reporter may achieve privileged access to government information, but a reporter does not have a constitutional right to maintain privileged access,” U.S. District Judge Peter J. Economus wrote, citing the ruling in the Sun case.

The Sun sued Gov. Robert Ehrlich Jr. late last year after he banned government employees from speaking with Sun columnist Michael Olesker and then-Statehouse Bureau Chief David Nitkin, now Maryland political editor. U.S. District Judge William D. Quarles Jr. dismissed the case, ruling that the Sun was seeking “privileged status beyond that of the private citizen.”

The Journal and the Sun have appealed to the U.S. Circuit Court of Appeals in Cincinnati (6th Cir.) and Richmond (4th Cir.), respectively. The issue, they argue, is not privileged access for reporters, but retaliatory measures taken by government officials unhappy with how they are portrayed in the publications.

Maureen Haney of Frost Brown Todd in Cincinnati, who is representing the Business Journal, said appealing is in the media’s best interest.

“Simply put, we need precedent in this circuit that makes clear that public officials cannot punish the media for their exercise of First Amendment rights,” she said. “All of these cases have one thing in common: a public official who unilaterally decided that he or she simply did not like the content of a particular newscast or newspaper article. And based on nothing more than this subjective displeasure, they then took official action to silence the particular media entity. That simply cannot be tolerated in a society that values freedom of the press.”

The need for such precedent is evident in the number of retaliatory freeze-outs cropping up nationwide. Journalists are finding it increasingly difficult to access many public officials. Often, unfavorable coverage is cited as the reason.

After a series of articles in The Virginian-Pilot questioning the city’s handling of chemical waste, Chesapeake, Va., changed its media policy in April. City Manager Clarence Cuffee’s office removed a section from the policy that allowed department heads to give out “basic information” to reporters. All press inquiries must now be channeled through the Public Communications Department.

Cuffee told the Pilot that inaccuracies in its stories spurred the change, but city spokesman Mark Cox said it was more a matter of reporters disturbing employees. “Simple requests for information were turning into interviews,” he said. “In the middle of their workday, it’s hard for employees to determine when it went beyond ‘basic information.'”

Cox said the city tries to have basic public information readily available to reporters and the public on the city’s Web site and in public libraries. Still, some reporters turned a few straightforward questions into conversations about policy changes, he said.

“Let’s work this out,” Cox said. “The city needs to better understand journalists, but journalists need to be more realistic about the government’s duties.”

Such a conciliatory attitude is not necessarily the norm. Alaska Gov. Frank Murkowski, unhappy with press coverage of his administration, has clamped down on access.

In a letter to the online newsletter Sitnews, Murkowski wrote: “I will continue to make time for serious reporters who focus on issues and policy and not personality. The gossip columnists however, can continue to film each other outside of my office door should that continue to be their priority.”

The letter came days after a contentious news conference in which reporters repeatedly sought clarification in the governor’s response to questions about an elections bill amendment, according to Deputy Press Secretary Mike Chambers. He said press conferences were not the governor’s strong suit and characterized them as generally “a big free for all” and “not even close to a productive event.”

As a result of that conference, Murkowski invited only three members of the capital press corps &#151 journalists for The Associated Press, Alaska Public Radio Network and the local ABC affiliate &#151 to question him in a smaller, more casual setting. Other members of the press corps tried to enter the interview, but were asked to leave. Bob Tkacz, freelance writer and publisher of Laws of the SEA, a fishing legislation newsletter, was escorted out.

Chambers said that smaller interviews work better for Gov. Murkowski. “We’re trying to do more one-on-one interviews, smaller, and in a more relaxed setting, rather than having two or three reporters chipping away like it’s a cross examination. It’s just a more productive environment for him.”

Tkacz has covered four Alaska governors and said gaining access is generally much more difficult under Murkowski.

“There has never been an interview before where only certain reporters were called,” he said. “Those who were uninvited had asked pointed questions and given him the hardest time the week before.”

Brian O’Donoghue, president of the Alaska Press Club and former Juneau legislative reporter, worries about the effect such favoritism has on the public.

“Obviously, the public is poorly served when the state’s top elected official plays favorites and excludes credentialed capital correspondents from his press conferences,” he said. “In this case, the black list apparently extended to reporters from Alaska’s biggest newspaper and top-rated broadcast news station, a sure indication that plenty of Alaska readers and viewers were left in the dark by the governor’s heavy-handed bid to control coverage.”

Although there is no written policy in Alaska forbidding state employees from speaking to the media, simple questions are often referred to press agents or answered on the condition of anonymity.

“More and more people I have known for years are being more cautious and sending me to a spokesperson,” Tkacz said.

Larry Persily, a former Anchorage Daily News reporter who works in the city’s finance department agreed. “There’s a paranoia that is spreading. People whose job it is to speak on the record are saying ‘off the record.'”

In a similar case in Kansas, Wichita’s KSNW-TV was the only major media outlet not invited to a police department briefing on Dennis Rader, who pleaded guilty in June to 10 counts of murder in the city’s “Bind, Torture and Kill” killings spanning almost 20 years.

Van Williams, public information officer for Wichita, said the police department and KSNW have had a rocky relationship. “Lingering issues and past incidents led to a decision by the police department not to invite that outlet,” he said.

KSNW News Director Todd Spessard responded with an op-ed in The Wichita Eagle calling the police department’s decision “dangerous to freedom of speech and freedom of the press.” The department requested a meeting to resolve the tension.

The two parties met a week later and agreed to a “new beginning” in their relationship, Williams said.

Spessard said the station was “promised it would not happen again. They understand it’s not acceptable.”

In Colorado, the Greeley Tribune is suing public trustee Mary Hergert for violating the First Amendment and engaging in unfair trade practices because Hergert stopped using the Tribune for posting legal notices and took the more than $400,000 worth of business to the weekly Windsor Beacon.

The notices, which had been running in the Tribune for more than 40 years, were removed weeks after a February editorial questioning the necessity of the trustee’s office and calling it “obsolete.”

Hergert maintains the Beacon offered her a better deal and better technology, but Tribune Publisher Jim Elsberry said Hergert declined his subsequent offer of a lower price and new technology.

“It’s a clear cut case of retaliation,” Elsberry said. “We have a long history of bringing suits against those who break the public trust. We’d do it whether there was money involved or not.”

The public and press are not the only groups affected by officials who choose to block access; public employees often feel their interests are better served when they have clear access to the media.

In the one-square-mile town of South Tucson, Ariz., Police Chief Sixto Molina is unsure if he can answer questions regarding the city’s media policy. “According to the memo, I can’t talk about it,” he said, referring a June memo sent out by City Manager Fernando Castro requiring all city employees to submit any media requests for interviews or information to his office for approval.

But in an interview, Castro said he has “no intention of keeping employees from speaking with the media” and that employees can use their best judgement when deciding whether to inform him before or after speaking to reporters. “I don’t know why the media is calling it a gag order,” he said. Castro said the directive was sent out to “keep me from being blindsided.”

Until the ban in South Tucson is resolved, however, Molina said he will continue to serve the public while trying to honor the city’s policy. “Our First Amendment rights have been cut off,” he said.