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Home > Reading Room > Maryland ruling strikes at heart of press freedom

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Maryland ruling strikes at heart of press freedom

By Charles Davis

Government officials, the flacks who curry favor with them by misshaping the events of the day and out-and-out propagandists are enjoying an unprecedented boom market these days, as the citizenry watches, entertained if misinformed.

At every level of government, it seems, journalism is losing ground to news control.

In Maryland, a three-judge panel of the 4th U.S. Circuit Court of Appeals handed The Baltimore Sun a stinging defeat in its lawsuit against Maryland Gov. Robert L. Ehrlich Jr. that challenged his ban on talking with two Sun reporters.

As the Sun dutifully reported, the judges affirmed a lower court decision that rejected the newspaper’s claim that the reporters’ First Amendment rights had been violated by the order, issued Nov. 18, 2004, banning state executive branch employees from speaking with Sun reporter David Nitkin and columnist Michael Olesker, who has since left the paper.

Timothy Franklin, editor of the Sun, said the paper would not appeal the decision.

The judges said the reporters “have not been chilled to any substantial degree in their reporting, as they have continued to write stories for the Sun, to comment, to criticize, and otherwise to speak with the full protection of the First Amendment.”

Following that logic, so long as the Sun reporters are not utterly silenced from writing about, say, the Ravens or the DMV or the weather or any topic that doesn’t involve the state’s chief executive — all is well.

All is not well.

Upholding the legality of a policy so clearly designed to punish critics — including a columnist, whose role, last I checked, is to provide opinion — brings legal gravitas to any public official in Maryland bent on creating an official “enemies list” of disfavored journalists, on behalf of whatever half-cooked rationale the flackery can concoct.

Think I’m overstating things? Take a look at Ehrlich’s response to his legal victory:

Ehrlich said the ruling “goes to the heart of this issue — the responsibility of every member of the press to report in a fair and objective manner, and the right to hold accountable those journalists who fail to adhere to these basic tenets of journalistic integrity.”

In other words, we decide, you report, and if we don’t like the results — you’re outtahere!

In fact, the ruling never addressed the issue of objective reporting, for the First Amendment would have made that a no-go, but it didn’t really have to, did it?

The practical effects of the ruling are bad enough, for here stands an official government policy of media exclusion based on content, upheld by a federal court. Whether the reporters can continue to report on anything not involving access to the governor is little solace, if the state’s chief executive can so cavalierly retaliate through use of legal force to punish his critics.

The court’s myopic focus on the external “chilling effects” of the policy ignores its more sinister side: providing the executive branch of government with the first-ever legal battering ram to bash its critics within a completely discriminatory manner, picking and choosing who gets to provide information to the people.

The marriage of news control — long sought by politicians everywhere — and the long arm of the law is what is new here. Ehrlich could have refused to return a call, and many an elected official has failed to hear the phone ring. But to give such behavior legal sanction is a whole other matter.

That the First Amendment long has forbidden precisely this sort of discrimination was lost on the court. But it won’t be lost on the spinmeisters, who must be salivating at the prospect of similar bans in the future. While the ruling is limited in scope to the 4th Circuit, its ramifications are likely to be felt in far-flung corners of the country, anywhere a churlish politico wishes to control the press.

Rarely are news controls as blatant as the Maryland saga. More typical is the sort of hyperactive public affairs officer currently making headlines at NASA, where daily attempts to curtail scientific openness have career scientists crying foul.

SPJ must remain vigilant in fighting any and all attempts at discriminatory media access policies. Only by fighting each such attempt, as vigorously as the Baltimore Sun fought this one, will we beat back controls on the news.

Charles Davis, co-chairman of SPJ’s Freedom of Information Committee, is the executive director of the Freedom of Information Center at University of Missouri School of Journalism.
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