3 judges hear Sun's appeal in access case

A three-judge panel of the 4th U.S. Circuit Court of Appeals pointedly dissected arguments yesterday from lawyers for Maryland Gov. Robert L. Ehrlich Jr. and The Sun, who are embroiled in a legal battle over the governor's decision to deny two journalists access to him or his administration.

The judges questioned The Sun's contention that its ability to gather news had been harmed by Ehrlich's decision to exclude the two journalists, veteran columnist Michael Olesker and reporter David Nitkin.

In their queries, the judges, J. Michael Luttig, Paul Niemeyer and William B. Traxler Jr., challenged claims by the newspaper that, in denying them access to state executive branch employees, the governor had prevented the journalists from doing their jobs.

The judges were equally sharp in their questioning of an attorney for the governor. Luttig flatly contradicted the lawyer, Margaret Ann Nolan, in her initial summary of what the case was about. She contended that the case centered upon a demand by The Sun for special access to the governor.

But Luttig interjected his summation of The Sun's arguments: "They're saying, 'You cut our people out and not anybody else.' "

The exchanges occurred during a hearing in the newspaper's appeal of a lower court's dismissal of a lawsuit filed against Ehrlich a year ago. The Sun took legal action after Ehrlich, upset with the paper's coverage of his administration, ordered executive branch employees not to speak with Olesker and Nitkin. A ruling could take months.

Luttig surmised that it is not always possible for the government to comply with every journalist's requests. "You cannot invite all of the media all of the time," he said.

The Sun's lawyer, Charles D. Tobin, acknowledged that there were limits to what a journalist, or anyone else, could expect from the government, and that there was nothing anyone can do to compel a public official to speak with a specific journalist.

But Tobin insisted the governor's ban was constitutionally untenable because, by targeting the two journalists, it denied them even the most rudimentary access to government officials to which any resident is entitled.

The judges questioned whether officials may pick and choose whom to seek out for coverage of specific issues, even if the deciding reason for the choice is a reporter's sympathetic stance toward the administration.

Tobin was asked whether it would be a violation of the First Amendment if, for example, the president chose to speak with one network and not another, based on whether he had been treated well in the past.

Tobin conceded that it would not.

Luttig said Tobin's response on that point "may be fatal" to The Sun's case.

But Tobin insisted that the governor's exclusion of Nitkin and Olesker was discriminatory because their names were "on an executive blacklist."

"We are the only ones left out of the room," Tobin said. "My clients can't call and ask questions of thousands of state employees."

Tobin, a member of the Washington law firm Holland & Knight, urged the panel to order the governor to set aside the ban and let the case be litigated.

The case comes at a time when the relationship between reporters and the government is under increased scrutiny, particularly in the aftermath of the outing of CIA operative Valerie Plame by White House officials intent on diminishing a critic of President Bush. The officials -- including Vice President Dick Cheney's chief of staff, I. Lewis Libby Jr., who was later indicted on charges that he lied to a federal grand jury -- sought out reporters to reveal Plame's name, a special prosecutor said.

Luttig, the most vocal of the three judges in the courtroom here, alluded to that dispute as he questioned Nolan, chief of litigation for the attorney general's office. He said it was normal for officials and reporters to try to use each other for their own ends.

Luttig also said the governor was treating Nitkin and Olesker "differently than any other reporter."

Nolan replied that The Sun has not been prevented from publishing stories about Ehrlich or his administration. "Both Nitkin and Olesker have continued to write unabated," she said.

Nolan argued that for the court to attempt to regulate the "symbiotic relationship" between government officials and reporters "is simply unworkable."

She then added that, because he is a columnist and not a reporter, Olesker publishes his own opinions and "doesn't need access to sources."

After the hearing, Olesker described Nolan's comment as "absurd."

"I don't write opinions without talking to the people who are involved in what I'm writing about," he said. Referring to the contention that Ehrlich's ban had "chilled" his ability to gather news, Olesker said: "People I've known for 30 years and who I've had a very civil and friendly relationship with have suddenly made it clear they're uncomfortable to be seen with me in public. That's pretty chilling."

Nitkin, now the paper's Maryland political editor, had a similar view. "There are days," he said, "when it dawns on me that I'm trying to do my job with one hand tied behind my back. There are stories that I can't do and that editors agree I can't pursue because of a handicap that the governor has placed on me."

For Sun editor Timothy A. Franklin, the issue of access is crucial. He said that Olesker and Nitkin, despite their experience and connections, "can't get anybody in the state government to talk to them."

"This ban has prevented them from performing their basic watchdog function," Franklin said. "The question for the public is, who's next on the enemies list?"

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