The Baltimore Sun Co. sued Gov. Robert L. Ehrlich Jr. yesterday, asking a federal judge to lift the administration's order banning state government employees from talking to two of the newspaper's writers.
The newspaper, along with State House Bureau Chief David Nitkin and columnist Michael Olesker, filed the lawsuit, which media experts say raises significant constitutional issues, including whether the First Amendment protects journalists and others from being retaliated against by government officials for what they write or say.
The lawsuit says that the governor's directive, issued in a Nov. 18 e-mail by Ehrlich press secretary Shareese DeLeaver, 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."
Sun editor Timothy A. Franklin says in a letter to readers today: "The governor's action sets a dangerous precedent for all citizens. No governor, Republican or Democrat, should be allowed to pick and choose whom state employees speak to based on whether the governor approves of their views.
"Left unchallenged, Gov. Ehrlich could prevent any citizen with whom he disagrees from gaining access to information from taxpayer-paid state government employees."
News media observers yesterday called Ehrlich's order and The Sun's response to it unprecedented. The suit comes at a time when the relationship between the Fourth Estate and its government leaders appears increasingly rancorous.
Media experts noted that President Bush boasts of not reading newspapers and has held the fewest news conferences of any modern president; and Democratic Sen. John Kerry declined to speak with reporters from the Maryland-based Sinclair Broadcast Group during this year's presidential campaign.
"From time to time, public officials become angry at the press and say they won't talk to reporters, but soon they recognize that they have a responsibility to inform the public and doing so through the press is really the only effective way to do that," said Robert H. Giles, curator of the Nieman Foundation for Journalism at Harvard University.
Deputy Director of Communications and Press Secretary Gregory Massoni, named in the suit with Ehrlich and DeLeaver, declined yesterday to comment. Ehrlich has said publicly that his directive stems from reporting by Nitkin and Olesker that he considers biased and unfair.
Although Ehrlich did not bar state government employees from speaking to all Sun reporters, the effect of his order handicaps the work of two of the newspaper's top journalists.
Nitkin, The Sun's lead State House reporter, says regular sources who used to drop by to discuss public policy no longer do so, and government contacts have stopped returning his phone calls.
'A chilling effect'
"The policy was intended to have and has had an impermissible chilling effect on The Sun's right to free expression," the five-page lawsuit concludes.
Politicians have through the years tried to control media content, Giles said, as when President John F. Kennedy's administration asked The New York Times to reassign correspondent David Halberstam after his critical coverage of the Vietnam War. But Giles couldn't recall a case of a blanket embargo of specific reporters.
"This is really highly unusual," said Giles, former president of the American Society of Newspaper Editors. "The governor may be trying to change the people on the beat or [intimidate] the columnist. ... It is not the responsibility of the governor to take matters into his hands and influence the selection of journalists covering stories."
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, likened Ehrlich's directive to former Minnesota Gov. Jesse Ventura, who stopped talking to local reporters who were critical of him and distributed media badges that labeled the political news media as "jackals."
"The people who suffer here isn't the media, for God's sake," Dalglish said. "Yeah, their job gets a little tougher, but what happens is the public doesn't get information."
Sinclair Broadcasting executive Mark Hyman, who writes and narrates editorials for his company's 60 stations, said rifts between the news media and politicians are fair game. He did not think The Sun had any legal standing in its claims of First Amendment violations.
"To my knowledge no one is prohibiting David Nitkin and Michael Olesker from writing anything - and that is what the First Amendment is all about," he said. "We all know anecdotally of politicians favoring particular media outlets," he said. "The elected officials just haven't all been as frank about it as the [Maryland] governor."
The Sun's lawsuit, filed in Baltimore's U.S. District Court, was just the latest exchange in a running feud between the state's largest newspaper and Ehrlich, elected in 2002 as Maryland's first Republican governor in 36 years. Ehrlich has shunned the newspaper since a 2002 Sun editorial endorsed Democratic Lt. Gov. Kathleen Kennedy Townsend and said Ehrlich's running mate, then state GOP chairman Michael S. Steele, who is black, was chosen because of "the color of his skin."
The latest standoff
This latest standoff began in October after The Sun published the first of several stories by Nitkin about the state's plan to sell 836 acres of St. Mary's County preserved forestland to Willard J. Hackerman, a politically connected construction company owner.
Several days after an Oct. 20 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 alleges.
Ehrlich's staff has 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 - incorrectly highlighted all 450,000 acres of state-owned preservation land. A correction ran in the next day's newspaper.
Of Olesker's columns, the governor's staff complained about a Nov. 16 column in which Olesker wrote about a hearing that questioned the ethics of Ehrlich's office using taxpayer money for state tourism commercials featuring the governor. Although Olesker wasn't 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 the commercials.
Olesker later apologized and said the reference was intended metaphorically, not literally.
Ehrlich and his administration also 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. In Nitkin's case, the governor said on WBAL radio that his problem is "not just one fact or one story, but a series of noncontextual innuendo."
He said that as a public official, the only arrow in his quiver is access.
"It's meant to have a chilling effect on them," Ehrlich said of barring Nitkin and Olesker.
Franklin has sought a meeting with Ehrlich to resolve the conflict. The first disagreement in 2002 predates Franklin's arrival in Baltimore last winter, but the governor has declined. Franklin said yesterday that the newspaper would still like to sit down with Ehrlich to work through the problem.
Press secretary Massoni said last week that it is unlikely Ehrlich will meet with Franklin until the newspaper apologizes for the 2002 editorial that claimed that Ehrlich's selection of Steele was based on race.
To our readers
Yesterday The Sun filed a complaint in federal court challenging Gov. Robert Ehrlich's ban prohibiting state officials from talking to two Sun journalists, reporter David Nitkin and columnist Michael Olesker.
We have tried hard to avoid taking this to the courts. For two weeks, The Sun has attempted unsuccessfully to meet with the governor so we could listen to his specific complaints about the newspaper's coverage and so we could appeal to him to lift his gag order.
The governor's action sets a dangerous precedent for all citizens. No governor, Republican or Democrat, should be allowed to pick and choose whom state employees speak to based on whether the governor approves of their views.
Left unchallenged, Governor Ehrlich could prevent any citizen with whom he disagrees from gaining access to information from taxpayer-paid state government employees. The gag could conceivably extend from The Sun to other organizations and individuals the governor dislikes. That is a prospect that should be unacceptable to any Marylander.
In recent days, Governor Ehrlich and his aides have accused The Sun of less-than-truthful coverage. We take these allegations seriously, because it damages the credibility of the newspaper, demeans the character of the journalists involved and confuses our readers. We are confident in our reporting and think that after a fair examination of all the facts, the governor and our readers would conclude that we strive for accuracy. And, on the occasions when we're not completely accurate, we are quick to correct the record.
We want to make one point emphatically: We will oppose any public officeholder who attempts to stem the flow of information about local government to the readers we serve. Indeed, we did it earlier this year when The Sun successfully sued Mayor Martin O'Malley for access to public records regarding the police department.
An open, transparent government is the very foundation of our democracy, and it is what every citizen deserves.
Timothy A. Franklin