Sun's challenge of Ehrlich order is dismissed by a federal judge

Paper plans to appeal barring of 2 reporters

Judge dismisses challenge to Ehrlich order

February 15, 2005|By Stephen Kiehl | Stephen Kiehl,SUN STAFF

The Baltimore Sun vowed yesterday to continue fighting an order barring state employees from speaking with two of the newspaper's journalists, despite a decision from a federal judge dismissing the lawsuit the paper had brought against Gov. Robert L. Ehrlich Jr.

In an eight-page opinion, U.S. District Judge William D. Quarles Jr. said The Sun was seeking special access beyond what is granted to the general public, and that the governor was within the law to deny that special access to two writers because he did not like what they wrote about him.

"The Sun seeks a privileged status beyond that of the private citizen," Quarles wrote. "The Sun seeks the declaration of a constitutional right that neither the Supreme Court nor the 4th Circuit has recognized - and, in fact, seeks more access than that accorded a private citizen."

Sun editor Timothy A. Franklin said The Sun was only seeking the same access to government officials that any ordinary citizen would receive. He said the paper will file an appeal with the 4th Circuit Court of Appeals in Richmond, Va., in a matter of days and would also seek an expedited review of the appeal.

In a meeting with 100 newspaper staff members yesterday afternoon, Franklin said the paper could not let the ruling stand as precedent.

"We believe that this is a clear case of a government official retaliating against people based on what they write and say, and in a democracy, where government should be transparent, that is a very troubling thing," Franklin said.

The Sun filed its lawsuit in federal court in December, after Ehrlich had issued an order banning employees from speaking with Sun State House bureau chief David Nitkin and columnist Michael Olesker. The order said the two writers were "failing to objectively report" on the administration. The Sun argued that the ban violated the First Amendment rights of the two journalists by denying them the same opportunities to seek information as other news organizations and citizens.

Ehrlich did not comment yesterday on the decision, which he received word of while traveling in Montgomery County. The governor will be briefed by his legal team today before issuing any statements, his staff said.

"He was pleased, but we're not surprised," said Ehrlich communication director Paul Schurick. "He has wasted a lot of his time, others have wasted a lot of their time on what we have always believed was an unwarranted lawsuit. It looks now like we may be forced to waste more time on an unwarranted appeal."

A three-judge panel of the 4th Circuit Court of Appeals will decide whether to grant the case expedited review. Even if that request is denied, the case will still be heard by the court. The 4th Circuit is considered one of the most conservative in the country, but some media and law experts said The Sun was right to challenge the ruling.

"I think the ramifications, if this is not overturned, could be unfortunate," said Gene Roberts, a journalism professor at the University of Maryland and former editor of The Philadelphia Inquirer. "It would mean if this governor or other governors continued along the same track, almost by a process of elimination, they would be deciding who covered them."

He added, "The judge missed the point that government should not be in the business of [choosing]who covers them because the whole message that it sends is if we view you as less than favorable, you can no longer cover us. Which in the end would lead to only favorable news coverage."


Alex Jones, director of Harvard's Shorenstein Center on the Press, Politics and Public Policy, said the decision could embolden other public officials to shut out reporters they dislike. But he said the risk of setting that precedent was one reason he thinks The Sun should not have brought the lawsuit at all.

"I think that this was probably ill-advised on both parts, and if I were The Sun, I'd forget about it and go back to reporting," Jones said. He called the governor's action "silly" and said, "I don't think this is going to be a long-term problem. I think The Baltimore Sun can outlast the governor."

Ehrlich and his staff have said they seek only objective coverage, and they have accused Olesker and Nitkin of misstatements and distortions. They pointed to a front-page map that overstated the amount of state parkland that was being considered for sale and to an Olesker column describing the facial expression of an Ehrlich aide at a hearing.

The Sun ran a correction after the inaccurate map ran in the paper. Olesker acknowledged he did not attend the hearing and said his description was meant metaphorically, apologizing for confusion.

The ban was imposed after Nitkin had written articles about the state's plan to sell 836 acres of preserved forestland in St. Mary's County to Willard Hackerman, a politically connected construction company owner, in a transaction that could have netted him millions in tax breaks.

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