Sun's challenge of Ehrlich order is dismissed by a federal judge
By By Stephen Kiehl
Feb 15, 2005 at 3:00 AM
The Baltimore Sun vowed yesterday to continue fighting an order barring state employees from speaking with two of the newspaper's journalists, despite a decision from a federal judge dismissing the lawsuit the paper had brought against Gov. Robert L. Ehrlich Jr.
In an eight-page opinion, U.S. District Judge William D. Quarles Jr. said The Sun was seeking special access beyond what is granted to the general public, and that the governor was within the law to deny that special access to two writers because he did not like what they wrote about him.
"The Sun seeks a privileged status beyond that of the private citizen," Quarles wrote. "The Sun seeks 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."
Sun editor Timothy A. Franklin said The Sun was only seeking the same access to government officials that any ordinary citizen would receive. He said the paper will file an appeal with the 4th Circuit Court of Appeals in Richmond, Va., in a matter of days and would also seek an expedited review of the appeal.
In a meeting with 100 newspaper staff members yesterday afternoon, Franklin said the paper could not let the ruling stand as precedent.
"We believe that this is a clear case of a government official retaliating against people based on what they write and say, and in a democracy, where government should be transparent, that is a very troubling thing," Franklin said.
The Sun filed its lawsuit in federal court in December, after Ehrlich had issued an order banning employees from speaking with Sun State House bureau chief David Nitkin and columnist Michael Olesker. The order said the two writers were "failing to objectively report" on the administration. The Sun argued that the ban violated the First Amendment rights of the two journalists by denying them the same opportunities to seek information as other news organizations and citizens.
Ehrlich did not comment yesterday on the decision, which he received word of while traveling in Montgomery County. The governor will be briefed by his legal team today before issuing any statements, his staff said.
"He was pleased, but we're not surprised," said Ehrlich communication director Paul Schurick. "He has wasted a lot of his time, others have wasted a lot of their time on what we have always believed was an unwarranted lawsuit. It looks now like we may be forced to waste more time on an unwarranted appeal."
A three-judge panel of the 4th Circuit Court of Appeals will decide whether to grant the case expedited review. Even if that request is denied, the case will still be heard by the court. The 4th Circuit is considered one of the most conservative in the country, but some media and law experts said The Sun was right to challenge the ruling.
"I think the ramifications, if this is not overturned, could be unfortunate," said Gene Roberts, a journalism professor at the University of Maryland and former editor of The Philadelphia Inquirer. "It would mean if this governor or other governors continued along the same track, almost by a process of elimination, they would be deciding who covered them."
He added, "The judge missed the point that government should not be in the business of [choosing]who covers them because the whole message that it sends is if we view you as less than favorable, you can no longer cover us. Which in the end would lead to only favorable news coverage."
Alex Jones, director of Harvard's Shorenstein Center on the Press, Politics and Public Policy, said the decision could embolden other public officials to shut out reporters they dislike. But he said the risk of setting that precedent was one reason he thinks The Sun should not have brought the lawsuit at all.
"I think that this was probably ill-advised on both parts, and if I were The Sun, I'd forget about it and go back to reporting," Jones said. He called the governor's action "silly" and said, "I don't think this is going to be a long-term problem. I think The Baltimore Sun can outlast the governor."
Ehrlich and his staff have said they seek only objective coverage, and they have accused Olesker and Nitkin of misstatements and distortions. They pointed to a front-page map that overstated the amount of state parkland that was being considered for sale and to an Olesker column describing the facial expression of an Ehrlich aide at a hearing.
The Sun ran a correction after the inaccurate map ran in the paper. Olesker acknowledged he did not attend the hearing and said his description was meant metaphorically, apologizing for confusion.
The ban was imposed after Nitkin had written articles about the state's plan to sell 836 acres of preserved forestland in St. Mary's County to Willard Hackerman, a politically connected construction company owner, in a transaction that could have netted him millions in tax breaks.
Schurick, of the governor's staff, said yesterday that lifting the ban would take "a commitment to fairness and accuracy and objectivity - something that is sorely lacking with that newspaper today." Earlier yesterday, when Ehrlich's private counsel, David Hamilton, was asked on WBAL Radio what Nitkin and Olesker could do to end the ban, he said only, "Relocate."
Hamilton also said, "This lawsuit was all about Nitkin and Olesker and The Sun complaining they didn't have special access. ... They don't have special access. The governor's not required to make their lives more convenient. The governor controls what he says and to whom he says it."
Franklin, The Sun's editor, said the paper was seeking only the access to state agencies and employees granted to any member of the public.
"David [Nitkin] and Mike [Olesker] can't even get a phone call returned, which is something that I think any citizen would be able to expect from a taxpayer-paid government official," Franklin said. "The fact of the matter is we're not asking for special access. We're asking for the same access any other citizen would have."
A friend-of-the-court brief supporting The Sun's lawsuit was filed jointly by the Associated Press, the American Society of Newspaper Editors, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press, the Maryland-Delaware-D.C. Press Association, the Radio-TV News Directors Association and the Association of Capitol Editors and Reporters.
In his decision, Judge Quarles relied heavily on a 1994 case in which Baltimore freelance reporter Terri Snyder sued the Police Department's chief spokesman, arguing that she had been shut out because the department didn't like some of her stories. Snyder won a judgment from a federal district judge but lost on appeal at the 4th Circuit.
Judge cites precedent
The Sun argued that case was different from the paper's lawsuit against the governor because Snyder was seeking special access not afforded the general public. But Quarles cited the case repeatedly in saying that journalists do not have a right to be treated the same as other journalists.
Franklin acknowledged there are risks in appealing the decision. "The risk is that we have a ruling that creates a precedent we don't like," he said. But he added, "If [the ruling] is allowed, it could be open season on any journalist or any citizen."
Franklin said The Sun would continue to aggressively cover state government. Sun publisher Denise Palmer backed her editor in filing the appeal, saying, "This is the right thing to do for the newsroom, it's the right thing to do for our community, it's the right thing to do for our readers."
Columnist Olesker called the decision "a sad and frightening moment for democracy." He said that anyone who casts a critical eye at the government - citizens, as well as reporters - could be subject to being frozen out. "That's an awful thing to happen in a society that values open debate as the very foundation of its liberties."
Sun staff writer Alec MacGillis contributed to this article.