Sun files suit to lift ban on journalists by Ehrlich

First Amendment is basis for unprecedented lawsuit

December 04, 2004|By Greg Barrett and Stephanie Hanes | Greg Barrett and Stephanie Hanes,SUN STAFF

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."

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