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Suit alleging unconstitutional gag by mayor dismissed

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NEWS MEDIA UPDATE   ·   OHIO   ·   Newsgathering   ·   May 24, 2005

NEWS MEDIA UPDATE   ·   OHIO   ·   Newsgathering   ·   May 24, 2005

Suit alleging unconstitutional gag by mayor dismissed

  • A federal judge last week rejected a business newspaper’s argument that a mayoral freeze-out targeting its reporters violates constitutional free speech protections.

May 24, 2005  ·   The Youngstown, Ohio, mayor did not violate the First Amendment when he ordered city officials not to speak with newspaper reporters, a federal judge in Ohio ruled last week, echoing a similar decision earlier this year by a Maryland federal judge.

One-on-one interviews and comments from city officials are not akin to certain government information — including criminal trials, proceedings and records — that the U.S. Supreme Court has said is protected by the First Amendment, U.S. District Judge Peter C. Economus ruled May 16 in dismissing a case brought by The Business Journal, a bimonthly newspaper.

The paper sued Youngstown Mayor George M. McKelvey in February, a few weeks after he notified Business Journal Publisher Andrea Wood that city workers are forbidden from talking to Journal reporters.

In his letter to Wood, McKelvey argued that 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 in a similar case that reporters don’t have a First Amendment right to equal access of government information.

Economus relied on Snyder and several other federal court opinions to rule that enforcing media access to information not otherwise available to the general public would afford the media a special privilege.

“A reporter may achieve privileged access to government information, but a reporter does not have a constitutional right to maintain privileged access,” Economus wrote, noting that McKelvey’s edict explicitly directs city employees to answer all questions relating to public records requests.

Economus also ruled that the Journal did not prove to the court that McKelvey’s policy was motivated by displeasure with the paper’s reporting.

McKelvey’s edict came after the Business Journal successfully sued the city when it failed to release public records about the planning and construction of a convocation center. In December, a judge ordered the city to pay the Journal‘s attorney fees.

The Journal is considering whether to appeal Economus’ ruling to the U.S. Court of Appeals in Cincinnati (6th Cir.), which has not decided the specific issue of such edicts, said Maureen Haney of Frost Brown Todd in Cincinnati.

The ruling follows several recent court decisions unfavorable to the press on the issue.

“None of these courts want to be the judge who goes the other way,” Haney said.

“What’s an even more disturbing trend is governments are doing this more and more,” she said. “I think governments are emboldened [by court rulings] to do it.”

Last week’s ruling echoes a February ruling in which U.S. District Judge William Quarles ruled that journalists do not have a greater First Amendment right than private citizens to access government information and dismissed a lawsuit against Maryland Gov. Robert Ehrlich for freezing out a Baltimore Sun reporter and columnist.

In its brief to the U.S. Court of Appeals in Richmond (4th Cir.), filed May 13, the paper argues that David Nitkin, now the Sun’s Maryland political editor, and columnist Michael Olesker, seek “not preferred access — but the right not to have the highest officials in the state deny them the same privileges afforded to any citizen.”

(Youngstown Publishing Co. v. McKelvey; Media counsel: Jill M. Vollman, Maureen P. Haney, Cincinnati)KM

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