## Facts

- The Baltimore Sun Company and two journalists (reporter David Nitkin and columnist Michael Olesker) covered Maryland state government and the Ehrlich administration.
- The Governor’s press office issued a written directive instructing executive-department and agency staff not to speak with Nitkin or Olesker, not to return their calls, and not to comply with their requests, citing perceived lack of “objective” reporting.
- The directive was authored by the Governor’s communications deputy and disseminated by the Governor’s press secretary to public information offices and executive departments.
- Plaintiffs alleged the directive was intended to punish and retaliate against protected press activity and to chill future reporting.
- After the directive, Nitkin asserted that executive-branch representatives stopped returning his calls and emails and that his access to sources diminished.
- The Sun continued receiving press releases and could attend public press briefings; invitations to smaller, private briefings were discretionary and capacity-limited.
- Publication output showed little change after the directive (Nitkin published 45 state-government articles in the eight weeks before and 43 after; Olesker wrote one state-government column before and one after).

## Issues

1. Whether a governor’s directive instructing staff not to speak with identified journalists because of disfavored coverage constitutes unconstitutional First Amendment retaliation.
2. Whether the press has a cognizable First Amendment right to continued individualized access to, and communications from, government officials on the same terms as before.

## Decision

- The Fourth Circuit affirmed the dismissal for failure to state a claim and the denial of injunctive relief.
- The court held the First Amendment does not require government officials to grant interviews, return calls, or provide individualized, discretionary access to specific reporters.
- Because plaintiffs identified no underlying constitutional entitlement to the withdrawn access, the alleged retaliatory motive did not, by itself, establish a First Amendment violation.
- The directive did not exclude plaintiffs from generally available public benefits such as public proceedings, public press conferences, or access to public information available to the press and public.
- Allegations of chilling effect were insufficient where the complaint and record showed continued publication of comparable coverage.

## Legal Principles

- The First Amendment protects publication and newsgathering, but it does not confer a general right of special access to government information or to interviews with public officials.
- Government officials may choose to speak with some reporters and not others when the access sought is discretionary and not part of a generally open forum or benefit.
- A First Amendment retaliation claim requires adverse government action that deprives the plaintiff of a protected right or generally available benefit; retaliatory motive alone is not enough.
- Viewpoint-based exclusion from a public forum, public proceeding, or generally available governmental benefit can be unconstitutional, but refusal to provide individualized communications ordinarily is not.

## Conclusion

The Fourth Circuit concluded that a governor’s targeted refusal to communicate with particular journalists, even if prompted by hostility to their reporting, does not violate the First Amendment absent exclusion from generally available public access or deprivation of a legal entitlement.


Balt. Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir. 2006)