Maryland, Ohio Lawsuits Test First Amendment Limits of Government Retaliation
 
February 6, 2006
 
Roxan Kerr - Washington
Charles D. "Chuck" Tobin- Washington

Two federal appeals courts in different parts of the country soon will decide whether the Constitution prevents government officials from ordering subordinates to completely ignore particular journalists because of unfavorable news coverage. The cases will help define the rights of journalists – and perhaps all other citizens – to be free from retaliation by their government for the exercise of First Amendment rights.

In Baltimore Sun Co. v. Ehrlich, Maryland Governor Robert L. Ehrlich ordered every employee in Maryland’s executive department to ignore phone calls and any requests from two Sun journalists. His press assistant’s email announcing the ban alleged the journalists were “failing to report objectively on any issue dealing with” the administration. The ban came several days after The Sun published the first of several articles relating to a proposed land sale by the state that would have yielded millions of dollars in tax breaks for a construction magnate. Following the ban, The Sun and the two reporters filed suit alleging violation of their First Amendment rights and asking the court to enter an injunction prohibiting the governor from enforcing the ban.

Similarly, in Youngstown Publishing Co. v. McKelvey, Mayor George M. McKelvey of Youngstown, Ohio – unhappy with articles published in The Business Journal that examined his administration’s actions in planning and constructing a convocation center – issued an oral directive prohibiting city officials from talking to reporters from the newspaper. After a related public records battle in which the newspaper prevailed, the mayor sent a letter to The Business Journal detailing his policy against all oral commentary from the city, specifically claiming its reporters were “failing to report objectively” on his administration. The Business Journal responded by filing a federal lawsuit mirroring The Sun’s in Baltimore, alleging unlawful retaliation for exercise of its First Amendment rights. The Business Journal also moved for an immediate injunction.

Neither newspaper was successful in its initial effort to strike down the bans. After a hearing early last year, the federal court in Baltimore analyzed the case – not as a claim of retaliation by the government – but as a request for special access, akin to asking for an order that forces every official to answer the journalists’ questions on demand. A few months later, the federal court in Cincinnati followed suit, also holding that the newspaper lacked authority to force the Youngstown mayor to grant one-on-one interviews, which was that court’s view of what the newspaper sought.

The Sun’s appeal is pending decision in the United States Court of Appeals for the Fourth Circuit, which held a hearing in November. The Business Journal’s appeal, which has not yet been scheduled for a hearing, is pending in the Court of Appeals for the Sixth Circuit. Both newspapers have argued that, under traditional government-retaliation law, the lower courts should not have required the newspapers to demonstrate the deprivation of a right of access. Instead, the newspapers argue, the burden falls on the government official to justify why he took the adverse action in response to news coverage, a clear exercise of the newspapers’ First Amendment rights of freedom of the press and speech. The newspapers also reiterate in their appeals that they do not ask the courts to force anyone to speak with them, just to lift an unconstitutional impediment that stands in the way of commentary by willing officials.

Both appeals are being watched closely by journalists as well as media companies and organizations. The outcomes undoubtedly will have a significant impact on the ability of journalists to gather the news, and the ability of the government to restrict that process.

Holland & Knight LLP represents Baltimore Sun Co. in the lawsuit against the governor of Maryland. The firm also represents a coalition of twelve media companies and associations as amici curiae in the appeal in the Youngstown litigation.

For more information, e-mail Roxan Kerr at roxan.kerr@hklaw.com or Charles Tobin at charles.tobin@hklaw.com or call toll free, 1-888-688-8500.