Since the beginning of our Republic, politicians have viewed the press with respectful skepticism at best and utter disdain at worst. “Journalists are a sort of assassins, who sit with loaded blunder-busses at the corner of streets and fire them off for hire or for sport at any passenger they may select,” opined John Quincy Adams.
To listen to Maryland Governor Robert Ehrlich, Jr. these days, it’s clear that he believes The (Baltimore) Sun is a modern-day assassin. So last November the first-term Republican governor fired back, using what he said was the only arrow available in the quiver of a public official—cutting off access to information. His administration issued a written directive banning allemployees in Maryland’s executive branch of government—potentially tens of thousands of taxpayer-paid state workers—from talking to two Sun journalists. Why? He said the two journalists, then-State House Bureau Chief David Nitkin and metro columnist Michael Olesker, were “failing to objectively report” on his administration.
In the history of our nation, angry politicians have employed many tactics to try to manipulate journalists. They’ve deliberately leaked stories to competing publications. They’ve personally frozen out certain reporters by refusing to talk to them. They’ve ridiculed their work in public. They’ve protested bitterly to publishers. Those tactics are all part of nature’s order in the give-and-take political jungle of American politics. But rarely, if ever, in our nation’s history has the chief executive of a state gagged an entire branch of government from speaking with two specific journalists—just because he didn’t like what they wrote.
Ehrlich, the first Republican elected governor of Maryland in 36 years, has said that he did so because he was upset by stories and columns that called his integrity into question. His critics have suggested that the ban was nothing more than a cynical, politically calculated act designed to capitalize on public skepticism of newspapers and to divert attention away from his own missteps.
Issues Raised By the Governor’s Actions
Whatever his motivation, there is no doubt about this: Ehrlich’s order raises a number of profound questions, with implications for journalists and, indeed, all citizens. In the next year or so, some answers likely will come from the federal appeals courts where this case is now being argued, and they could alter the relationship between government officials and the press.
Here are just a few of the questions being considered:
- Is it a violation of the First Amendment for a government official to retaliate against any citizen based on what that person writes or says?
- Does the government effectively get to pick and choose who covers the government?
- Can an elected official blacklist individuals—business people, public interest groups, political foes, journalists or others—from getting information from taxpayer-paid public employees?
- Does a journalist deserve the same right of access to taxpayer-paid government officials as any other citizen?
The Sun believes these questions all are raised by the curt, one-paragraph gag order issued by the governor’s press office last November 18th.
What had Nitkin and Olesker done to provoke such an extreme reaction?
On October 14th, Nitkin broke a story about the Ehrlich administration’s plan to sell 836 acres of prime conservation land to a politically connected Baltimore contractor, a deal that could have netted the developer millions in tax breaks. The Sun’s revelation of the proposal, which was masked in public documents as a deal between the state and an “unnamed benefactor,” created a political firestorm that will burn into next year’s governor’s race.
On November 16th, columnist Olesker chided the governor for playing the starring role in taxpayer-financed television ads intended to promote Maryland tourism. Olesker opined that the $2.7 million ad campaign was more about promoting Bob Ehrlich than tourism.
Two days after that column appeared—and the same day the paper published a follow-up story from Nitkin on the administration’s possible sale of 3,000 acres of other public lands—the governor’s press office issued the ban.
The day on which this extraordinary directive was issued, I called the governor’s press secretary, Greg Massoni, to try to set up a meeting to talk about the governor’s concerns with our coverage. He said the governor would not meet with senior editors of the newspaper until The Sun apologized for a 2002 editorial in which it endorsed Ehrlich’s opponent. In that editorial, The Sun criticized Ehrlich’s selection of running mate Michael Steele, saying the African-American lieutenant governor candidate “brings little to the team but the color of his skin.”
The newspaper refused to apologize for expressing its view in an editorial, but The Sun’s attorney continued to talk to the governor’s lawyer to try to set up a meeting. After two weeks, the governor’s office still wouldn’t even agree to set a time for a meeting. In the meantime, Ehrlich launched a series of scathing attacks on the newspaper, accusing The Sun of publishing “serial inaccuracies” and “volumes of fabrications.” Chief among those attacks was that Olesker had fabricated a conversation he had last spring with Steele. After hurling that allegation for days on radio and television, the governor’s press office suddenly and stunningly reversed itself, acknowledging that Olesker had, in fact, talked to Steele for his column.
In leveling these broadsides against the paper, Ehrlich was outspoken about his motivations for the ban. Speaking on a talk-radio show, Ehrlich said that he intended for his gag order to have a “chilling effect” on the two journalists’ coverage of his administration. In response to a question about whether he should have ordered all government officials not to talk, Ehrlich responded forcefully, “That’s my government. That’s my government. I’m the chief executive.” In a February interview, Ehrlich told The Washington Post that he “intensely” dislikes the banned journalists.
At an off-the-record meeting held on December 17, 2004, the governor’s staff gave The Sun a list of 23 grievances with the paper’s coverage during the past three years. The list included complaints about stories, headlines, editorials and even the balance of letters to the editor on a specific day. We decided that it was critical to have the newspaper’s public editor, Paul Moore, investigate each of the governor’s grievances. In this position, Moore reports directly to the publisher—not to the paper’s editor or its editorial page editor—and, thus, has the independence to conduct a credible review.
After a thorough investigation, on April 21st The Sun published a lengthy report with the public editor’s findings. And in an effort to be as open with readers as possible, The Sun posted the governor’s unedited grievance list on its Web site, with the evidence Moore unearthed and his findings regarding each complaint. As a result of his investigation, The Sun has published two corrections and two clarifications. Moore’s overall conclusion was: “While there is no doubt that some mistakes have been made in The Sun’s coverage of the Ehrlich administration, there is no evidence of the grievous, purposeful mistakes publicly referred to by the governor. As I see it, those claims are grossly exaggerated.”
The Newspaper’s Response
With the banishment of Nitkin and Olesker showing no signs of ending, The Sun had three basic options, none of which was desirable.
- Do nothing and hope that the ban would melt away over time. But there were drawbacks with that course. The Sun’s veteran statehouse bureau chief would be forced to cover an impending legislative session with one hand tied behind his back, unable to communicate with one of the major branches of government. And, indeed, the ban has resulted in Nitkin’s calls going unanswered. Moreover, The Sun was concerned that the governor’s action, left unchallenged, could embolden other politicians in Maryland and the rest of the nation to create their own enemies list and ban journalists deemed to be unfriendly.
- Reassign Nitkin to a beat that didn’t involve coverage of the governor. That, too, was simply unpalatable. Nitkin had built a deep reservoir of sources and expertise in state government and politics, which we were not eager to jettison. Even if we moved Nitkin out, there was no guarantee that the governor wouldn’t just ban the next Sun reporter he didn’t find sympathetic to his cause. Our bottom line: The government shouldn’t get to pick and chose who covers the government. (Nitkin was promoted to Maryland political editor and has begun his new job in the paper’s Baltimore offices. In this position, he is involved with coverage of the governor and will play a critical role in coordinating coverage of the 2006 governor’s race.)
- File a First Amendment lawsuit. This was our last resort, and we understood the inherent risk of going to court and potentially getting a bad ruling that could affect other journalists.
After carefully weighing all these options, The Sun opted to challenge the governor’s directive in court. We did so with the support of virtually every major print and broadcast professional organization in the nation. We did it to stand behind our journalists. We did it because of our belief in this fundamental principle of the First Amendment: The government cannot punish, or discriminate against, any individual because of the content of his words.
There’s considerable case law to back up that proposition. In 2001, a federal court in Chicago sided with a reporter from The Chicago Reader who was denied access to a jail because officials didn’t like a story she wrote about strip searches. The court concluded that denying the reporter access to the jail because of the content of her story violated the First Amendment. The court wrote, “The DOC [Department of Corrections] may not have a legal obligation to admit [her]. But it may not refuse to do so because she exercised her First Amendment rights.” And there have been many other federal court rulings upholding the notion that government cannot discriminate or retaliate against individuals—not just journalists—based on their viewpoints.
Despite those precedents, Baltimore U.S. District Court Judge William Quarles, Jr. ruled against The Sun in February. In his opinion, he wrote that the paper was seeking a special access to government “beyond that of the private citizen,” a privilege for which journalists have no Constitutional guarantee. In our view, Judge Quarles got it wrong. In fact, The Sun’s two banished journalists have less access to government than a private citizen. They can’t get a phone call returned from a state employee. One would like to think that if any other citizen called a taxpayer-paid government employee, that person would be able to get an answer to a question.
Having the ability to question government officials and, in turn, hold them accountable to the public they serve, is at the core of this case. James Madison once said, “A popular government without popular information, or the means of acquiring it, is but a prologue to farce or tragedy—or both.” If left in place, Ehrlich’s ban is both a farce and a tragedy that could reverberate for journalists and citizens well beyond the boundaries of Maryland.
Timothy A. Franklin is the editor of The (Baltimore) Sun.