Legal experts divided on Ehrlich ban affecting 2 Sun writers

Paper suing governor, arguing constitutionality

December 07, 2004|By Matthew Dolan | Matthew Dolan,SUN STAFF

Lawyers and legal scholars were divided yesterday as to whether Gov. Robert L. Ehrlich Jr.'s ban on two Sun journalists is legally permissible or an unconstitutional abuse of his executive power.

More than two weeks ago, Ehrlich ordered state officials to stop talking to two of the newspaper's journalists, saying the reporter and columnist failed to report on his administration fairly.

On Friday, The Sun, joined by State House Bureau Chief David Nitkin and columnist Michael Olesker, sued Ehrlich and two of his press representatives in U.S. District Court in Baltimore, alleging the governor's actions violated the First Amendment.

Several experts in media law said yesterday that the unusual court challenge had a strong chance of success because of the ban's explicit direction and wide scope.

"I think that the ban itself is unconstitutional because the ban is too broad," said David C. Vladeck, an associate professor at the Georgetown University Law Center who specializes in First Amendment and open-government litigation.

But others, including Ehrlich's personal legal counselor, argued that a separate federal appeals court ruling lays out a solid foundation for the governor's actions.

"The case found that a public official can determine to whom he or she wishes to speak," said David Hamilton, Ehrlich's former law partner who now advises the governor on legal matters.

"Once the reporter breaches the standard of trustworthiness ... the governor can say, `Enough is enough.'"

Jervis S. Finney, the governor's chief counsel, did not return a call for comment yesterday.

The lawsuit argues that a Nov. 18 e-mail from the governor's press office telling state agencies to stop communicating with Nitkin and Olesker was a violation of their First Amendment rights.

Ehrlich and his staff complained, in part, that the newspaper published an inaccurate map with one of Nitkin's stories and allowed Olesker to publish a column describing people at a hearing that he never attended. The Sun published a corrected map, and Olesker wrote in a subsequent column that the reference was metaphorical and apologized for any misunderstanding.

"This is just a back-door effort to get a reporter who has published stories that the governor didn't like kicked off the beat and a back-door effort to get a columnist to be forced to write with one hand behind his back," said Tribune Co. attorney Stephanie S. Abrutyn, who filed the suit on behalf of The Sun, a Tribune-owned newspaper.

She continued: "On a broader level, this is not about just these two reporters. If the governor is allowed to do this, any reporter ... would be foolish not to think twice about what they say or write."

Abrutyn cited a recent federal case from St. Mary's County in which the 4th U.S. Circuit Court of Appeals ruled that sheriff's deputies acted illegally when they bought up all of the copies of a newspaper in order to try to stop its circulation before Election Day.

If the deputies believed the newspaper's "attacks to be scurrilous, their remedy was either to undertake their own response or to initiate a defamation action," the court ruled last year. "It was not for law enforcement to summon the organized force of the sheriff's office to the cause of censorship and dispatch deputies on the errands of suppression in the dead of night."

Legal experts interviewed yesterday said the governor alone could have decided to stop talking to the two journalists, but his executive order to silence other state employees could raise a problem.

Vladeck, the Georgetown professor, said the courts have upheld restrictions on public employees that prevent the distribution of certain materials, such as classified data, trade secrets held by a private company or personal information such as a Social Security number.

"But this is an effort to muzzle all state employees," said Vladeck, who has also done legal work for Public Citizen Litigation Group. "What I'm concerned about is that the governor has pushed this issue in a way that almost necessitates a visit to the courts. I would hope that cooler heads will prevail soon."

Floyd Abrams, one of the nation's leading First Amendment attorneys working for news organizations, sees two violations of the law committed by Ehrlich.

"A public official is not allowed to punish anyone for the exercise of his First Amendment right," said Abrams, who is known for having represented The New York Times in its Pentagon Papers case. "A public official is not allowed to discriminate against one individual or newspaper as opposed to all others."

But Thomas Dienes, a professor of constitutional law at George Washington University, said there might be legitimate arguments that favor Ehrlich's ban.

"It's a different kind of lawsuit," Dienes said, "There will be a question - to what extent what is being denied is a privilege and to what extent what is being denied is a right."

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