The hearing, in the 4th U.S. Circuit Court of Appeals, is the latest round in a running feud between the state's largest newspaper and Ehrlich, elected in 2002 as Maryland's first Republican governor in 36 years.
The Sun's lawsuit said that the governor's directive, issued on Nov. 18, 2004, discourages "speech by any citizen of Maryland who disagrees with the Governor, and it will leave the door open for any public official to punish any individual who says something the government does not like."
Timothy A. Franklin, The Sun's editor, said yesterday that Ehrlich "made clear this was a retaliatory act."
"In America, the government doesn't get to pick and choose who covers the government," he said. "That's something that repressive regimes used to do, but it's not part of the fabric of our democracy. The public should be concerned if a politician has the right to decide who can talk to taxpayer-paid government officials."
Henry Fawell, the governor's press secretary, declined a request yesterday to comment on the case, saying it was a "judicial matter."
The Sun lost the first round in the case last February, when U.S. District Judge William D. Quarles Jr. rejected its request that he lift Ehrlich's ban and granted the governor's motion to dismiss the case.
Quarles said The Sun was seeking "the declaration of a constitutional right that neither the Supreme Court nor the 4th Circuit has recognized - and, in fact, seeks more access than that accorded a private citizen."
The paper's appeal is being heard today by a three-judge panel. An opinion could come in a few months.
In May, a coalition of news organizations, including The New York Times Co., The Washington Post, CNN and the American Society of Newspaper Editors, filed a legal brief supporting The Sun's appeal.
"The First Amendment is designed to protect the press and the public against governmental attempts to restrict speech disapproved of by those in power," the brief said. "Yet the Governor's order, by his own admission, seeks to do precisely that: he seeks to coerce journalists into providing coverage that is pleasing to him on pain of being subject to an official boycott if they do not."
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, suggested last week that Ehrlich might be too thin-skinned. "When you get yourself elected to a major statewide office you should become accustomed to the rough-and-tumble of dealing with the media," she said.
Dalglish, whose organization reviews governmental attempts to muzzle the press around the world, said that Quarles "seemed to view this case as The Sun wanting some special access that the public doesn't get." But she added, "I expect that, as a resident of Maryland, I could call a state employee and have my call returned. These two guys wouldn't."
Ehrlich has been at odds with the newspaper since it published a 2002 editorial that endorsed Lt. Gov. Kathleen Kennedy Townsend, the Democratic gubernatorial candidate, and wrote that Ehrlich's running mate, then-state Republican Party Chairman Michael S. Steele, who is black, brought "little to the team but the color of his skin."
The legal standoff began in October 2004 after The Sun published the first of several stories by Nitkin about the state's proposal to sell 836 acres of preserved forestland in St. Mary's County to Willard Hackerman, a politically connected construction company owner. Several days after a story described the governor's role in moving the proposed deal forward, Ehrlich pulled Nitkin aside at a news conference and complained that he viewed Nitkin's reports as a personal attack, the lawsuit said.
Ehrlich's staff also complained about a front-page map accompanying one of Nitkin's stories published to highlight properties across the state that were "being considered" by the administration for sale. The map - which Nitkin had no part in creating - mistakenly highlighted all 450,000 acres of state-owned preservation land. A correction ran the next day
The governor's staff also complained about a Nov. 16, 2004, column in which Olesker wrote about a hearing that raised ethical questions about Ehrlich's office using taxpayer money for state tourism commercials featuring the governor. Although Olesker was not present at the hearing, he wrote that Ehrlich's communications director, Paul E. Schurick, was "struggling mightily to keep a straight face" when he said political gain was "not a consideration" in making theads. Olesker acknowledged he did not attend the hearing and apologized, saying the reference was intended metaphorically, not literally.
In addition, Ehrlich and his administration accused Olesker of making up quotes in one of his columns but backtracked from that charge after Steele said he remembered having a conversation with Olesker about the matter.
In an appearance on WBAL radio, Ehrlich said that as a public official, the only arrow in his quiver is access.
The Sun's lawyers are likely to argue otherwise today. In a 50-page brief filed in May supporting the paper's appeal, the lawyers said Ehrlich had "boldly punished two journalists and their newspaper based solely upon the governor's subjective displeasure with what they had to say."