NEWS MEDIA UPDATE · FOURTH CIRCUIT · Newsgathering · Feb. 16, 2006
Maryland governor’s retaliation against journalists upheld
Feb. 16, 2006 · Maryland Gov. Robert Ehrlich’s freeze-out of a Baltimore Sun reporter and columnist was an inconvenience but did not chill the journalists’ or the paper’s First Amendment rights, a federal appeals court ruled Wednesday, upholding a lower court’s dismissal of the case.
Statehouse Bureau Chief David Nitkin and columnist Michael Olesker failed to prove that Ehrlich trampled on their free speech rights on Nov. 18, 2004, when his press office ordered state public information officers and executive branch officials “not to return calls or comply with any requests” from them, a three-judge panel of the U.S. Court of Appeals in Richmond (4th Cir.) ruled unanimously.
“As typical reporters, they are used to currying their sources’ favors, and even though they may have been foreclosed from directly accessing sources when the sources became unhappy with how their information was being reported, they have not been chilled to any substantial degree in their reporting, as they have continued to write stories for The Sun, to comment, to criticize, and otherwise speak with the full protection of the First Amendment,” Judge Paul V. Niemeyer wrote. Olesker has since left the paper, where Nitkin is now an editor.
Nothing about the e-mail directive from Ehrlich’s press office was threatening or concerned private information about an individual, Niemeyer wrote. Had the e-mail revealed private information about someone or contained language “threatening, coercive, or intimidating so as to intimate that punishment, sanction, or adverse regulatory action will follow,” the journalists might have had a valid case, wrote Niemeyer, who was joined by Judges J. Michael Luttig and William B. Traxler.
Allowing Nitkin’s and Olesker’s retaliation claim to stand would turn the relationship between journalists and government officials on its head, the panel said. “Having access to relatively less information than other reporters on account of one’s reporting is so commonplace that to allow The Sun to proceed on its retaliation claim addressing that condition would ‘plant the seed of a constitutional case’ in ‘virtually every’ interchange between public official and press,” Niemeyer wrote.
Charles Tobin, who represented the Sun in the case, said that the ruling “separates journalists into a class” apart from ordinary citizens. “Until now, courts have been loath to do that,” he said.
“When it comes to protecting free speech, journalists have less right than the ordinary citizen” under this ruling, Tobin said.
The Sun argued that journalists from other media outlets could be chilled by Ehrlich’s edict, an argument the court panel rejected.
“It would be inconsistent with the journalist’s accepted role in the ‘rough and tumble’ political arena to accept that a reporter of ordinary firmness can be chilled by a politician’s refusal to comment or answer questions on account of the reporter’s previous reporting,” Niemeyer wrote.
The Sun will not appeal the decision, the paper reported Thursday.
“We don’t agree with the ruling at all, but we’ve decided not to take it up to the U.S. Supreme Court on appeal,” Sun Editor Timothy A. Franklin told the paper. “We don’t want this to be an issue in the 2006 governor’s race.”
Ehrlich’s ban came several days after The Sun published an article by Nitkin about a proposed land transaction that Ehrlich viewed as an attack. The Sun sued after several meetings between Sun officials and Ehrlich failed to settle the disagreement.
U.S. District Judge William D. Quarles dismissed the case one year ago, ruling that journalists do not have a greater First Amendment right than private citizens to access government information.
(The Baltimore Sun Company v. Ehrlich; Media counsel: Charles Tobin, Holland & Knight, Washington, D.C.) — KM