Sneaking Suspicions - A First Amendment Wedgie
The unsurprising result issued this week in the Baltimore Sun litigation challenging Maryland Governor Ehrlich’s selective, official freeze-out of two of its staffers makes me wonder about the paper’s judgment.
Did they really think they were going to win?
If so, how?
Or were they going for a sympathetic response from the public?
If so, whatever gave them that idea?
I’m looking at this from the cold-eyed perspective of a government attorney with over 20 years’ experience in dealing with the press, so I know I’m not being fully objective here. Even so, the whole affair has more than a whiff of the slightly ridiculous about it.
The fact that Governor Ehrlich issued a formal memorandum directing public information officers and executive branch agencies not to talk to reporter David Nitkin or columnist Michael Olesker was itself an odd surprise.
Usually these things aren’t that organized, or so openly blatant. Press folks working for governments eventually know who among the press can be trusted and who cannot, and act accordingly. They usually don’t announce a freeze-out; it just happens. Sometimes it’s accompanied by a quiet word or two with an editor, explaining with a typically rueful tone that it’s just become impossible to work with a particular reporter. These conversations sometimes lead to assignment changes, especially if the newspaper feels it will be at a competitive disadvantage with other media outlets who continue to have access.
The smartest thing the Ehrlich administration did as part of their reaction to The Sun was to keep the cut-out as limited as it was. Nitkin and Olesker could continue to obtain documents under the Public Information Act, the same as any citizen. They could continue to attend open press briefings, watching and recording what anyone else could. They just can’t tap into the other sources of information that help provide context, other useful tidbits, and sometimes the occasional scoop.
This, of course, is why they were so annoyed at the new edict, a point that wasn’t lost on the judge, either:
It is clear from the Nitkin and Olesker declarations, that their complaints–e.g., refusal of officials to comment on statements of legislators, refusals to comment on contracts between private firms and the state, refusals to provide information or views for columns, refusals to provide background discussions to identify issues or topics of interest to readers, and refusals to provide personal reasons or justifications for declining comment–are far beyond any citizen’s reasonable expectations of access to his or her government. The enforcement of the Governor’s memorandum has been implemented in a way that is reasonably calculated to ensure the Sun’s access to generally available public information. The Sun seeks a privileged status beyond that of the private citizen; that desire is not a cognizable basis for injunctive relief.
Looks to me like some folks were just given a short, sharp object lesson on the First Amendment and how far it doesn’t go. Perhaps some of the calmer heads in the newspaper management will now be in a position to suggest ways to restore their reporters’ lost privileges.
And maybe now Nitkin and Olesker will understand that privileges are what they lost.
sneakingsuspicions.com |
