The Fourth Estate’s Property Line

We depend, in this country, on freedom of speech and a free press, and the courts have been properly protective of the media, maybe at times too protective. Since New York Times v. Sullivan, the media in particular has been shielded from liability for merely negligent publication of falsehoods. Since the Pentagon Papers, it has been clear that the government can not prevent the publication of even the most sensitive information in wartime, however unlawfully obtained, though in appropriate cases there can still be legal consequences after the fact. And by law, under McCain-Feingold, the press has been granted special rights to speak about political candidates at election time that are denied to ordinary citizens. Only the development of the internet and the blogosphere and the demise of the “Fairness Doctrine” have chipped away at the monopoly power these freedoms have granted to the mainstream media, or “MSM”.
While the freedom to speak may be – and should be – nearly absolute, however, developments in recent years have dealt one legal blow after another to the MSM’s claim to special, privileged right to gathering news that the rest of us don’t employ. To put it bluntly, the media thinks it is like the legal profession, which can use subpoenas to drag information out of the unwilling and use legal privileges to shield the contents of its communications. The recent White House press corps snit over Dick Cheney notifying the local authorities and the Corpus Christi press about his hunting accident, without giving a full and immediate confession to the White House press corps, is a sample of this attitude. When reporters go to court, however, they often discover that judges know the difference between the law and the media. Thus, Judith Miller jailed for not disclosing information about sources to a criminal investigation, among other setbacks in the courts regarding protection of sources.
Now, the lastest setback, which came yesterday in the Fourth Circuit’s ruling in The Baltimore Sun Co. v. Ehrlich, No. 05-1297 (4th Cir. Feb. 15, 2006). (Via Bashman). At issue in the Sun’s lawsuit against Maryland’s (Republican, naturally) Governor Robert Ehrlich was whether Ehrlich was permitted to refuse to talk, and order his staff to refuse to talk, to two specific Sun reporters (one of them an opinion columnist) in response to what the Governor felt was biased and unfair coverage. Specifically, Ehrlich’s press office issued the following order:

Effective immediately, no one in the Executive Department or Agencies is to speak with [Baltimore Sun reporter] David Nitkin or [Baltimore Sun columnist] Michael Olesker until further notice. Do not return calls or comply with any requests. The Governor’s Press Office feels that currently both are failing to objectively report on any issue dealing with the Ehrlich-Steele Administration. Please relay this information to your respective department heads.

Slip op. at 3 (emphasis in original). The ban included barring the two from select press briefings, but they continued to have access to open press conferences, press releases and state FOIA requests, and other Sun reporters did not suffer the same fate. Id. at 4-5. The Sun sued, claiming unconstitutional retaliation under the First Amendment and 42 U.S.C. 1983 – a claim that, at bottom, rests on the theory that the Sun has a constitutional right to have the Governor and his staff compelled to talk to them. After all, if a public official can’t choose when and whether not to speak to particular reporters, he can’t really choose at all.
The Fourth Circuit recognized that executive officials not only have freedom not to speak, but have the authority to control their own staff, and its decision reflected the fact that media competition for access is a routine feature of reporting on the government:

It is common knowledge – and the parties so concede – that reporting is highly competitive, and reporters cultivate access – sometimes exclusive access – to sources, including government officials.
Public officials routinely select among reporters when granting interviews or providing access to nonpublic information. They evaluate reporters and choose to communicate with those who they believe will deliver their desired messages to the public. By giving one reporter or a small group of reporters information or access, the official simultaneously makes other reporters, who do not receive discretionary access, worse off. These other reporters are sometimes denied access because an official believes them to be unobjective.

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[T]he challenged government response is a pervasive feature of journalism and of journalists’ interaction with government. Having access to relatively less information than other reporters on account of one’s reporting is so commonplace that to allow The Sun to proceed on its retaliation claim addressing that condition would “plant the seed of a constitutional case” in “virtually every” interchange between public official and press. See Connick v. Myers, 461 U.S. 138, 149 (1983). Accordingly, we conclude that, in the circumstances of this case, no actionable retaliation claim arises when a government official denies a reporter access to discretionarily afforded information or refuses to answer questions.

Id. at 10-12. Instead, the scope of a reporter’s claims are limited to more direct forms of coercion implicating the unique powers and public megaphone of government:

When the challenged government action is government speech, there is no retaliation liability – even if the plaintiff can demonstrate a substantial adverse impact – unless the government speech concerns “private information about an individual” or unless it was “threatening, coercive, or intimidating so as to intimate that punishment, sanction, or adverse regulatory action will imminently follow.”

Id. at 9 (citation omitted). The rule could not be otherwise. We all have freedom to speak and petition for redress of grievances, but not everyone in a land of 300 million souls has the right to an unlimited claim on the time and attention of high government officials to answer questions. Even leaving aside the fact that – as the Fourth Circuit recognized – it can be difficult if not impossible to draw the line between impermissible retaliation and ordinary discretion and favoritism among working reporters, a rule that allowed the use of litigation to compel government to cooperate with particular reporters would inevitably require some limits on who could invoke that process. And have we any doubt that the entrenched MSM would demand a rule giving it preferential status and access compared to the average citizen or blogger?
The media has a right to speak, in some ways greater than the rest of us. But its right to gather news is no greater than the rights of the average citizen in a democracy. As it should be.