Cracking The Dam:
A Guide To Journalists’ Right of Equal Access To
Information

By Robert Arcamona
2010 Pulliam Kilgore Intern

Bruce W. Sanford
Bruce D. Brown
Laurie A. Babinski
BAKER & HOSTETLER LLP
Washington, D.C.

Counsel to the Society of Professional Journalists

October 2010

 TABLE OF CONTENTS
Page
I.

INTRODUCTION ............................................................................................................. 1

II.

GETTING TO THE SHOW . . . : THE LAW OF ISSUING PRESS PASSES ............... 5

III.

IV.

A.

If It Quacks Like A Duck: What Constitutes A Content-Based Regulation
When Issuing Press Credentials? ........................................................................... 7

B.

Show Me The Money: Must Credentialing Policies Be Articulated?................. 13

C.

Times They Are A-Changin‟: Can Reporters Be Denied Access To An
Event Because Of The Medium In Which They Publish? ................................... 16

D.

One For All: Can A Reporter Be Excluded From A Press Conference
Because Other Means Are Available To Gather Information? ............................ 20

. . . AND THE COLD SHOULDER ONCE YOU‟RE THERE: THE LAW OF
UNEQUAL AND DISCRIMINATORY ACCESS TO INFORMATION ..................... 23
A.

A Newsroom Nightmare: Two Worst-Case Scenarios Of Public Officials
Discriminating Against Reporters........................................................................ 25

B.

Straight Up: Does The First Amendment Protect Reporters From
Vengeful Public Officials? ................................................................................... 29

C.

An Eye For An Eye: Do Constitutional Protections Against Retaliation
Bar Discriminatory Policies? ............................................................................... 31

D.

Old Faithful: Will The Public Forum Doctrine Save Reporters From
Policies Promoting Unequal Access? .................................................................. 35

E.

The Power Of The Pen: What Else Can A Reporter Do To Fight A
Discriminatory Policy? ........................................................................................ 36

CONCLUSION ................................................................................................................ 36

-i-

 I.

INTRODUCTION
It should be no surprise that a class of professionals charged with dramatically sketching

and then coloring the day‟s events would adopt powerful analogies to describe their life‟s work.
Mention the phrase “the fourth estate” and journalists‟ chins will rise.1 Celebrate the term
“watchdog journalism” and reporters may clutch their press passes with pride.2 Finally, describe
the press as those preserving “the full and free flow of information to the general public” and
expect an approving nod from any newsman within earshot.3 There are three separate elements
inherent in the free flow of information analogy: the mouth of this information river, the source,
and the current. Each of these parts have an equally important role in informing the public,4 and
yet all three have different levels of legal protection.5
The flow‟s delta is the eyes and ears of news consumers, who under Supreme Court
precedent, have a First Amendment “right to receive information and ideas.”6 In Red Lion
Broadcasting Co. v. FCC the Supreme Court held that “[i]t is the right of the public to receive
suitable access” to information that “is crucial.”7 Similarly, in Stanley v. Georgia, a case decided
the same year as Red Lion, the Court proclaimed, “It is now well established that the [First
Amendment] protects the right to receive information and ideas.”8 Although Red Lion and

1

Potter Stewart, Or of the Press, 26 HASTINGS L.J. 631, 634 (1975).
See Tavoulareas v. Piro, 759 F.2d 90, 121 n.39 (D.C. Cir. 1985) (“Newspapers provide a vital service
by acting as watchdog for the public.”).
3
Houchins v. KQUED, Inc., 438 U.S. 1, 30 (1978) (Stevens, J., dissenting) (“The preservation of a full
and free flow of information to the general public has long been recognized as a core objective of the First
Amendment.”).
4
In re Mack, 126 A.2d 679, 689 (Pa. 1956) (Musmanno, J., dissenting) (“Freedom of the press means
freedom to gather news, write it, publish it, and circulate it. When any one of these integral operations is
interdicted, freedom of the press becomes a river without water.”).
5
Barry P. McDonald, The First Amendment and the Free Flow of Information: Towards A Realistic
Right to Gather Information in the Information Age, 65 OHIO ST. L.J. 249 (2004) (hereinafter
“McDonald”).
6
Id. at 250 (emphasis added).
7
395 U.S. 367, 390 (1969).
8
394 U.S. 557, 564 (1969).
2

1

 Stanley remain good law, some see this interpretation of the First Amendment as somewhat
limited by later Supreme Court precedent.9
The flow‟s current is the function of actually publishing information and delivering it to
the public. This stage is strongly protected by the First Amendment‟s prohibition on “prior
restraints.”10 A prior restraint is government action that prohibits an individual or organization
from publishing information.11 As far back as 1769, 22 years before the First Amendment was
ratified, a commentator stated that the “liberty of the press” depends on “no previous restraints
on publication.”12 More modern legal authorities have echoed this understanding. For instance,
according to a 1971 Supreme Court decision, a prior restraint bears “a heavy presumption against
its constitutional validity.”13
The least protected segment of the “free flow of information” analogy is access to the
river‟s source, the information itself. Professor Barry McDonald has noted that jurisprudence in
regard to access to information is both “erratic and fragmented.”14 For example, in Branzburg v.
Hayes15 the Supreme Court held that there is no blanket First Amendment right for a journalist to
keep confidential sources. The decision struck a blow to the press‟s claim that the First
Amendment should protect a journalist‟s ability to gather and access information. However, the
Court did offer a consolation when it noted that “without some protection for seeking out the
9

See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1819 (Thomas, J., concurring); Miami Herald
Publ’g Co. v. Tornillo, 418 U.S. 241 (1974).
10
Patterson v. Colorado, 205 U.S. 454, 462 (1907).
11
As one article notes, its often difficult to define what constitutes a prior restraint. See Marin Scordato,
Distinction Without A Difference: A Reappraisal of the Doctrine of Prior Restraint, 68 N.C. L. REV. 1, 2
(1989).
12
4 William Blackstone, Commentaries *151, *152; see Report on the Virginia Resolutions, Madison‟s
Works, vol iv, p. 543 (“security of the freedom of the press requires that it should be exempt . . . from
previous restraints.”).
13
New York Times Co. v. United States, 403 U.S. 713 (1971).
14
McDonald at 251; see Harvard Law Review Association, Developments in the Law – The Law of
Media, IV. Viewpoint Discrimination & Media Access to Government Officials, 120 HARV. L. REV. 1019
(2007) (hereinafter “Viewpoint Discrimination & Media Access”).
15
408 U.S. 665 (1972).

2

 news, freedom of the press could be eviscerated.”16 Unfortunately, the Court did not define what
“some protection” meant. Later cases further muddied the already cloudy water. The Court‟s
holdings in Pell v. Procunier,17 Saxbe v. Washington Post Co.,18 and Houchins v. KQUED,19
taken together, weaken the idea that journalists have “some” legal right to access valuable
information.20 But, in the 1980 Richmond Newspapers, Inc. v. Virginia case, the Court seemed
to backtrack on the logic used to underpin Pell, Saxbe, and Houchins, holding that there was a
First Amendment right to gather information at criminal trials.21 Finally, just 11 years later, the
Court in Cohen v. Cowles Media Co. returned to the approach taken prior to the Richmond
Newspapers case.22 Professor David A. Anderson said that until Cohen, observers could at least
make sense of the Court‟s decisions with respect to access to information, even if they did not
agree with it.23 But after Cohen, Anderson said, “If there‟s a theoretical sense to this area of law,
it confuses me.”24
Whatever the logic banding these cases may be, “at least one proposition seems to be
well settled: The First Amendment does not „guarantee the public a right of access to
information generated or controlled by government . . .‟”25 As a corollary to this understanding,
Justice Potter Stewart stated, and a recent Court decision appears to affirm,26 that the

16

Id. at 681.
417 U.S. 817, 834 (1974).
18
417 U.S. 843 (1974).
19
438 U.S. 1.
20
McDonald at 302-03.
21
448 U.S. 555 (1980).
22
501 U.S. 663 (1991).
23
Telephone Interview with David A. Anderson, Fred & Emily Marshall Wulff Centennial Chair in Law
at The University of Texas at Austin School of Law (July 6, 2010).
24
Id.
25
Viewpoint Discrimination & Media Access (quoting Branzburg v. Hayes, 408 U.S. 665, 707 (1972)).
26
L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 40 (1999) (Justices Souter, Breyer,
Ginsburg, Stevens, O‟Connor, and Kennedy all expressly stated that once information is generally
available to the public, a government official may not withhold information from some people and offer it
to others based on some criteria).
17

3

 “Constitution does no more than assure the public and the Press equal access [to information]
once government has opened its doors.”27 If that is the case,28 the natural question becomes:
When has government opened its doors? When must the government offer all members of the
press equal access to information?
The 2010 Pulliam/Kilgore Freedom of Information Report will examine the question of
unequal access to government-held information. This Report will proceed in three parts. The
first part will examine the law of issuing press passes, a situation that has been a recent problem
for many journalists working for blogs and other new media outlets. The second will examine
government officials‟ attempts to discriminate among members of the press by ordering
subordinates not to talk to a particular reporter. The final part will summarize the Report‟s
findings and describe how they may be used to aid a reporter in the future.
The goal of this Report is to inform journalists – of all forms – about the scope of their
First Amendment right of equal access to information. If a government official were to deny a
reporter this right, Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of
the Press, said the first thing a reporter should do is to arranging a meeting with the official to
discuss the legal issues are at stake.29 This Report aims to supply reporters with the legal
precedent and constitutional theory that can be used to convince a public official that denying a
reporter equal access to information violates the First Amendment.

27

Houchins, 438 U.S. at 16 (Stewart, J., concurring).
Most courts have agreed with Justice Stewart‟s proposition. However, at least one judicial opinion took
an opposing view. See Snyder v. Ringgold, No. 97-1358, 1998 U.S. App. LEXIS 562, at *8 (4th Cir. Jan.
15, 1998). This Report presumes the existence of a right of equal access in some form and scope given
the volume of court holdings supporting the view.
29
Interview with Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press,
in Arlington, Va. (June 28, 2010).
28

4

 I.

GETTING TO THE SHOW . . . : THE LAW OF ISSUING PRESS PASSES
To an established reporter, obtaining a press pass is normally nothing more than a

formality. But to a blogger or less well-known journalist, receiving a press pass is a badge of
legitimacy, a way to display credibility, and a means to earn respect among peers in the media
and public. Despite their desire to achieve this level of recognition, bloggers and new media
journalists have had a tough time acquiring press credentials.
One such blogger was Rafael Martínez Alequin, who writes for the blog Your Free
Press.30 A few years ago, Alequin and two other bloggers had their New York City Police
Department (NYPD) press credentials revoked.31 Alequin had held a NYPD press pass for the
previous 15 years. At the time, a press pass – also known as a Working Press Card – permitted
journalists to cross police lines in certain situations and to attend New York City Mayor Michael
Bloomberg‟s press conferences. According to one news report, Alequin believed that he and his
associates were unfairly denied their press passes because they worked for “online or
nontraditional news outlets.”32 Alequin appealed the NYPD‟s revocation, but nearly a year after
his appeal the department still had not made a final judgment. It was then that Alequin and
Norman Siegel, a New York City civil rights lawyer, sued. According to Siegel, shortly after
filing suit the NYPD issued Alequin and the two other bloggers press passes.33
Even after receiving his credentials, Alequin and Siegel continued to press the NYPD
demanding that the department “address the systemic issues” inherent in the press pass policy.34
Over the course of the following year, Siegel met with NYPD officials and successfully worked

30

YOUR FREE PRESS, http://yourfreepress.blogspot.com (last visited July, 14, 2010).
Sewell Chan, N.Y.P.D. Is Sued Over Denial of Press Credentials, CITYROOM (Nov. 12, 2008, 5:38
P.M.), http://cityrom.blogs.nytimes.com/2008/11/12/nypd-is-sued-over-denial-of-press-credentials.
32
Id.
33
Telephone Interview with Norman H. Siegel, Esq. (July 7, 2010).
34
Id.
31

5

 to change the department‟s credentialing policy. “Bloggers are now recognized as journalists,”
Siegel said. “City officials came to realize that by giving bloggers equal rights, they could be on
the forefront of the 21st Century of journalism.”35 Bloggers and online journalists in Maryland,36
New Jersey,37 and Oregon38 have reported similar problems in recent years.
To understand the law concerning press passes, it is vital to understand a fundamental
doctrine within First Amendment jurisprudence. When the government establishes a press
conference or some other meeting generally open to the news media,39 many courts agree40 that it
has created a “designated public forum.”41 These forums are government-controlled places or
events that have been voluntarily opened to the general public (or media) for a specific type of
expressive activity.42 Once government officials create these forums, they may not deny a
particular reporter access to them because of something the journalist published – known as a
content-based regulation – without first satisfying the most rigid mode of judicial analysis called

35

Id.
Danny Jacobs, Lawyer/Blogger granted press pass, THE DAILY RECORD (May 09, 2010),
http://mddailyrecord.com/2010/05/09/lawyerblogger-granted-press-pass.
37
New Jersey Blogger Gets Press Pass Yanked, BELTWAY BLOG ROLL (July 03, 2007),
http://beltwayblogroll.nationaljournal.com/archives/2007/07/new_jersey_blog.php.
38
Telephone Interview with Mark Bunster, publisher of the Loaded Orygun blog (July 8, 2010); see
LOADED ORYGUN, http://www.loadedorygun.net (last visited July 14, 2010).
39
Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977).
40
See ABC, Inc. v. Cuomo, 570 F.2d 1080, 1083 (2d Cir. 1977) (access to post election activities at
political candidates‟ headquarters requires public forum analysis); Telemundo of L.A. v. Los Angeles, 283
F. Supp. 2d 1095, 1102-03 (C.D. Cal. 2003) (media event on government property is a public forum);
Nation Magazine v. Dep’t of Def., 762 F. Supp. 1558, 1573 (S.D.N.Y. 1991) (invoking the public forum
doctrine); Westinghouse Broad. Co. v. Dukakis, 409 F.Supp. 895 (D. Mass. 1976) (council meetings are a
public forum); Borreca v. Fasi, 369 F. Supp. 906 (D. Haw. 1974) (“If [a public official] chooses to hold a
general news conference in his inner office, for that purpose and to that extent his inner office becomes a
public gathering place.”).
41
Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).
42
See Telemundo of L.A., 283 F. Supp. 2d at 1102-03.
36

6

 “strict scrutiny.”43 Courts have noted that holding a law to this high judicial bar is often a way of
signaling that the regulation is presumptively unconstitutional.44
A.

If It Quacks Like A Duck: What Constitutes A Content-Based Regulation
When Issuing Press Credentials?

Determining what constitutes a content-based restriction is often difficult. Public
officials who deny a reporter a press credential are unlikely to state bluntly that there are doing
so because of something the journalist has aired or written.45 Instead, officials are likely to give
an alternate justification for the denial, one that makes no reference to a particular news story, in
an attempt to mask their true motive. By doing so, officials could circumvent strict scrutiny
analysis, making the denial more likely to pass constitutional muster if the matter found its way
before a judge. For instance, in May 2010, Associated Press photographer Erik Schelzig was
ejected from the Tennessee Statehouse after taking pictures of House Speaker Kent Williams,
who had collapsed on the House floor.46 After the incident, some legislators attempted to strip
Schelzig of his press credentials claiming that the reporter had interfered with medical
personnel.47 On its face, the legislators‟ reasoning make no reference to Schelzig‟s reporting and
is facially content-neutral. However, in a letter written to Williams, Laura Leslie, president of
the Association of Capitol Reporters and Editors (known as Capitolbeat),48 argued that stripping

Times-Picayune Publ’g Corp. v. Lee, Civ. A. No. 88-1325, 1988 U.S. Dist. LEXIS 3506, at *26-27
(E.D. La. Apr. 18, 1988) (“The selective denial of access to a governmental forum based on content is
unconstitutional regardless of whether a public forum is involved unless the government can show a
compelling state interest and is the least restrictive means available to achieve the asserted governmental
purpose”) (citing Perry Edu. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37 (1983)).
44
ACLU v. Reno, 217 F.3d 162, 173 (3d Cir. 2000), vacated sub nom. Ashcroft v. ACLU, 535 U.S. 564,
(2002); see Adarand Constructors v. Pena, 515 U.S. 200, 237 (O‟Connor, J., concurring) (when
government officials are forced to show that a law must meet strict scrutiny, the analysis is “strict in
theory, but fatal in fact”).
45
But see Raycom Nat’l, Inc. v. Campbell, 361 F. Supp. 2d 679, 681 (N.D. Ohio 2004).
46
A video of the incident can be found at: http://www.wsmv.com/video/23546129/index.html.
47
Joe Strupp, Statehouse Reporter Protests Colleague’s Credential Fight, MEDIA MATTERS (May 17,
2010, 2:34 PM), http://mediamatters.org/strupp/201005170042.
48
CAPITOLBEAT, http://capitolbeat.wordpress.com/ (last visited July 14, 2010).
43

7

 Schelzig‟s press pass “looks like an attempt to punish a reporter for covering something a
lawmaker didn‟t want him to cover,” which could qualify as a content-based regulation.49
Schelzig‟s story is not the only time that reporters have had their livelihoods threatened
by facially content-neutral policies. The legal analysis provided below describes a few instances
where facially content-neutral rules, cited in the denial or revocation of a press credential, were
in fact held to be impermissible facades for content-based regulations. Using this precedent, a
reporter may be able to convince a public official that withholding a press pass because of
something a journalist has published – even if the explanation is dressed in the form of a contentneutral reaction – likely violates the First Amendment.
Not long ago, reporter Annette Katz was banned from attending press conferences hosted
by the school board in Miami-Dade County, Florida. For more than 20 years Katz had served as
an editor and reporter for UTD Today, a monthly newspaper published by the United Teachers of
Dade, a local teachers union. In 2002, Merrett Stierheim, then the Superintendent of MiamiDade Public Schools, enacted a policy regulating the school district‟s press room, where press
conferences often took place. These “Press Room Procedures” restricted access to the press
room to “working media representatives,” which were defined as “individuals employed by a
newspaper or broadcast organization intended for general circulation.”50 Stierheim contended
that UTD Today, which had a circulation of 19,000, was not part of the “general-circulation
media” because the newspaper‟s intended audience was “members of a particular profession or
occupation.”51

Tom Humphrey, Taking Pictures of Collapsed Speaker ‘Despicable’ or ‘Distasteful,‟ KNOXNEWS.COM,
(May 13, 2010, 4:58 PM), http://blogs.knoxnews.com/humphrey/2010/05/taking-pictures-of-collapseds.html.
50
United Teachers of Dade v. Stierheim, 213 F. Supp. 2d 1368, 1371 (S.D. Fla. 2002).
51
Id.
49

8

 Katz sued the school board and requested a preliminary injunction that would prohibit
Stierheim from enforcing the Press Room Procedures until a court could fully adjudicate the
issue.52 Stierheim defended the procedures by claiming that they were enacted “because of the
overcrowding and disruption” in the press room.53 Katz rebutted this facially content-neutral
explanation by asserting that the proceedures were promulgated to discriminate against UTD
Today because of its “opposition to the [s]chool [b]oard administration,” a content-based
restriction.54 Despite Katz‟s argument, there was no direct proof that the Press Room Procedures
were enacted because of UTD Today‟s content. Instead of attempting to decipher Stierheim‟s
true motive for enacting the Press Room Procedures, which would require a judge to conduct a
subjective inquiry into her state of mind, the court embarked on a novel line of reasoning:
Defendants purport to rely on the scope of a publication‟s circulation to
make their classification. It follows that a publication‟s circulation results
from its subscriber‟s interest in the content of the newspaper. Thus, in order
classify UTD Today as a [newspaper of general circulation] Defendants
necessarily are considering “content-based criteria” in excluding the veteran
reporter.55
The court thus held that a regulation could be construed as content-based even if there was no
direct proof that Stierheim enacted the Press Room Procedures with animus toward Katz‟s
reporting or UTD Today‟s content. By enacting a policy focused on the popularity of the
publication, the court held, school board officials attempted to “distort public debate” similar to
any other content-based regulation.56 As a result, the procedures were examined through the lens

52

In order for a plaintiff to succeed on a preliminary injunction claim, the plaintiff must show that there is
a “substantial likelihood” that he or she would win their case in addition to meeting other criteria. Thus,
the court‟s holding in United Teachers of Dade does not state whether a First Amendment violation took
place. Rather, it holds that there was a “substantial likelihood” of a First Amendment infringement. Id. at
1375.
53
Id. at 1371.
54
Id. at 1372.
55
Id. at 1373.
56
NLRB v. Glendale Assoc., Ltd., 347 F.3d, 1145, 1155 (9th Cir. 2003).

9

 of strict scrutiny and the court thus interpreted the regulation to be presumptively
unconstitutional.57
A similar situation occurred 15 years earlier when Gene Stevens, publisher and
photographer for the Post Time USA,58 a newspaper focused on thoroughbred horse racing, was
banned from bring his camera into the paddocks of New York Racing Association (NYRA) race
tracks. The paddock is the section of a race track where the jockey, horse owner, and trainer all
meet to discuss the upcoming race.59 When Stevens inquired as to why the NYRA had restricted
his ability to take photographs in the paddocks, association officials stated that the publisher had
a habit of “collaring” people into taking pictures.60 By “collaring,” officials meant that Stevens
was simply too pushy when it came to taking photographs. On its face, the NYRA‟s decision to
restrict Stevens appeared content-neutral because it centered on Stevens‟ behavior, not the
material he published. A judge, however, found that the NYRA‟s justifications for the restriction
were unsubstantiated and contradictory. As a result, the court concluded that Stevens‟ denial
must have been motivated by some undisclosed (likely content-based) reason disguised by the
NYRA‟s facially content-neutral explanation.61 Thus, as in Katz, the court concluded that the
NYRA‟s policy was a thinly veiled content-based regulation and therefore likely violated the
First Amendment.62
Yet another egregious case of content-based discrimination came in 1971 when the police
department in Davenport, Iowa denied CHALLENGE, a bi-weekly newspaper, media

57

United Teachers of Dade, 213 F. Supp. 2d at 1373.
POST TIME USA, http://www.posttimeusa.com (last visited July 14, 2010).
59
Stevens v. New York Racing Ass’n, 665 F. Supp. 164, 166 (E.D.N.Y. 1987).
60
Stevens, 665 F. Supp. at 166-67.
61
Id. at 176.
62
Stevens, 665 F. Supp. at 175.
58

10

 credentials.63 At the time, investigative police reports were kept in a file known as the
“Miscellaneous Reports,” which was not accessible to the general public.64 Police officials did,
however, permit reporters with department-issued credentials to access the file because doing so
“alleviate[d] the necessity of calling periodic press conferences.”65 In order to obtain a press
pass, police officials required that a reporter work for a “legitimate” or “established” media
outlet, which the police department said CHALLENGE was not.66 Since the newspaper was
unable to acquire credentials, its reporters were banned from accessing the Miscellaneous
Reports and were therefore unable to cover the Davenport Police Department in the same way
that other media outlets could. The department had no written regulations, guidelines or
standards defining what constituted a “legitimate” and “established” newspaper.67 It was also
unclear whether the police department applied the rules governing access to the Miscellaneous
Reports to any publication other than CHALLENGE.
When the newspaper‟s publishing company, the Quad-City Community News Service,
sued the police department, a judge found that other reporters covering the department “had
never been asked to present” a press pass before accessing the police file.68 Quad-City argued
that this evidence showed CHALLENGE‟s reporters were denied access to the Miscellaneous
Reports because of their combative reporting style as opposed to any content-neutral
justifications the public officials could conjure.

63

Quad-City Cmty. News Serv., Inc., v. Jebens, 334 F. Supp. 8 (S.D. Iowa 1971).
Id. at 12.
65
Id.
66
Id.
67
Id.
68
Id.
64

11

 In holding that the Davenport Police Department‟s media credentialing policy likely
violated the First Amendment,69 the federal court stated that public officials cannot “impede the
free exercise of speech or press simply because the content is insulting, disturbing or critical.”70
The court also noted that the police department may not “funnel[] information to the public
through only certain representatives who are considered more responsible because they
„cooperate‟ in presenting [ideas that] the Department believes to be appropriate.”71 The court
concluded that the policy‟s “interpretation and application” violated the First Amendment even
though it made no reference to CHALLENGE‟s content.72
Not all courts, however, have been willing to accept the idea that facially content-neutral
laws can be so easily interpreted as content-based regulations. For example, in JB Pictures v.
Department of Defense, media organizations challenged the DOD‟s policy of prohibiting
reporters from covering the arrival of the caskets of soldiers killed overseas during Operation
Desert Storm.73 JB Pictures, along with other media and veterans‟ organizations, argued that
“precluding access to the war dead at Dover while permitting access to other activities – ones
allegedly placing Desert Storm in a more positive light – constituted impermissible „viewpoint
discrimination.‟”74 The court dismissed the media‟s claim, holding that “if the plaintiffs‟ theory
of „viewpoint discrimination‟ were accepted, virtually any restriction on access to government

69

See supra note 44, at 7.
Quad-City Cmty. News Serv., Inc., 334 F. Supp. at 13 (citing Terminiello v. Chicago, 337 U.S. 1
(1969)).
71
Id. at 14.
72
Id. at 13.
73
JB Pictures, Inc. v. Dep’t of Def., 86 F.3d 236, 238 (D.C. Cir. 1996). The bodies of these veterans
arrived at Dover Air force Base in Dover, Delaware. The blanket ban on media access to Dover was
lifted in 2009, giving reporters limited access to certain ceremonies at the base. See Obama
Administration Lift Blanket Ban on Media Coverage of the Return of Fallen Solders, NATIONAL
SECURITY ARCHIVE (Feb. 26, 2009), http://www.gwu.edu/~nsarchiv/news/20090226/index.htm.
74
JB Pictures, Inc. v. Dep’t of Def., 86 F.3d at 238.
70

12

 facilities . . . would be vulnerable to a challenge.”75 JB Pictures demonstrates some courts‟
reluctance to impute more meaning into a credentialing regulation than apparent on its face.
When a government official denies a reporter a press pass because of something he or she
has published, the denial is presumptively unconstitutional.76 However, government officials are
unlikely to expressly state that they are withholding a credential for this reason. Instead, some
officials have cited other, content-neutral explanations to mask their intentions. The UTD Today,
Stevens, and Quad-City cases show that even in the face of credentialing policies that, for a
variety of reasons, appear to be content-neutral, courts have devised ways to expose public
officials‟ invidious motives. In UTD Today, the size or popularity of a publication could not be
used to deny a press pass. In Stevens, the court did not permit phony or over-exaggerated
rationale to mask a content-based restriction. Finally, in Quad-City, the selective enforcement of
an apparently neutral press pass policy was held to be presumptively unconstitutional
government action. If reporters believe that they have been denied press passes or equal access
to information because of something they have published, the cases mentioned above show that
public officials may have a difficult time hiding such presumptively unconstitutional actions
beneath facially content-neutral policies.
B.

Show Me The Money: Must Credentialing Policies Be Articulated?

One of the most high-profile cases involving a reporter who was denied a press pass
came in the 1970s when Robert Sherrill, who had served as a Washington correspondent for The
Nation magazine, was left standing at the wrong side of the White House gate. After a year with
The Nation, Sherrill, who had already obtained credentials to the U.S. House and Senate press
galleries, applied for a White House press pass. The Secret Service denied Sherrill‟s application
75
76

Id. at 240.
See supra note 44, at 7.

13

 “for reasons relating to the security of the President and/or the members of his immediate
family.”77 Prior to applying for the pass, Sherrill had been convicted of assaulting the press
secretary to a Florida Governor and faced another assault charge in Texas.78
Sherrill sued the Secret Service claiming that the denial violated his First Amendment
rights. The case made its way to the federal Court of Appeals for the District of Columbia where
a judge noted that the White House had no “written procedures” governing the issuance of press
passes.79 Instead, the White House Press Office had established unwritten criteria that required,
among other things, a reporter to be cleared by the Secret Service after a security check.80 The
appeals court acknowledged that the Secret Service had a “compelling” if “even an
overwhelming” interest in denying Sherrill a press pass in order to protect the safety of the
President.81 The problem with the White House‟s policy, however, was that it was not
“publish[ed] or otherwise ma[d]e publicly known.”82 The court clarified its holding by stating
that a published credentialing policy “is necessary in order to assure that the agency has neither
taken additional, undisclosed information into account, nor responded irrationally to matters put
forward by way of rebuttal or explanation.”83 The court further held that the White House need
not articulate “narrow and specific standards or precise identification of all the factors which

Sherrill, 569 F.2d at 126. “Security issues” have often been cited as a reason to deny a particular
reporter a press pass.
78
Id. at 128 n.13. In Quad-City Cmty. News Serv. Inc., 334 F. Supp. at 12, the Davenport Police
Department similarly stated that it denied a reporter a press credentials because “some of the members of
the [publishing company] had been convicted of a felony.” The court found that justification to be a
“classic example of post-factor rationalization.”
79
Sherrill, 569 F.2d. at 126.
80
Id.
81
Id. at 130.
82
Id.
83
Id. at 131.
77

14

 may be taken into account” when issuing press pass so long as the policy is accessible to
reporters before they apply for credentials.84
A District of Columbia federal court later came to a similar conclusion in a different
context. In 2002, Getty Images News Service sued the Department of Defense (DOD) after the
news service was denied access the Guantánamo Bay military base. Like the White House‟s
policy in Sherrill, the DOD did not have a written regulation governing access to the base. Getty
Images claimed that the lack of a written policy violated the First Amendment.85 The court
agreed and held that since the DOD‟s criteria were not “written or published or in any way made
known to the media organization seeking access,” there was no way to ensure the agency was not
using improper means to select who received credentials.86 Quoting from an earlier case, the
court noted that “where public officials . . . employ criteria that are either vague or completely
unknown, the party affected has no way of knowing how to achieve compliance with the criteria
nor even of challenging them as being improper.”87
The Sherrill and Getty Images decisions hinged on the fundamental constitutional rule
that government actors may not enact arbitrary policies. As a way to protect against subjective
government action, the courts mentioned above required written press pass regulations. Other
courts, however, have gone even further. In Quad-City, the court stated that not only must a
press pass policy be written, but also must be “guided by narrow and specific standards.”88 This

84

Id.
Getty Images News Serv, Corp., 193 F. Supp. 2d 112, 115-116 (D.D.C. 2002) (the policy considered:
1) “a mix of media types”; 2) offered some preference to media organizations “that consistently reach
large audiences”; 3) whether the media outlet broadcasted internationally; and 4) offered “regional news
media” preferred selection).
86
Id. at 120.
87
Id. at 121 (citing Quad-City Cmty. News Serv, Inc., 334 F. Supp. at 17).
88
Quad-City Cmty. News Serv., 344 F. Supp. at 17; see also Housing Works, Inc. v. Safir, 98 Civ. 4994
(HB), 1998 U.S. Dist. LEXIS 18515, at *18 (S.D.N.Y. Nov. 25, 1998) (use of the New York City Hall
steps required a narrowly articulated policy governing who may use them for expressive activity).
85

15

 understanding directly conflicts with the requirements articulated in Sherrill and Getty Images,
which stated that a credentialing policy does not have to articulate narrow criteria.
If a reporter is denied a press pass pursuant to an unwritten credentialing policy, the
denial may very well violate the Constitution. However, even when a policy is on paper, it may
still be challenged on the basis that it is so vague, inaccessible, or overbroad that it does not give
reporters adequate notice of the policy‟s requirements or permits government officials to issue
credentials in an arbitrary or subjective manner.
C.

Times They Are A-Changin’: Can Reporters Be Denied Access To An
Event Because Of The Medium In Which They Publish?

Of course, government officials must establish some limits on who may attend media
events. If the government were forced to accommodate every person who wanted to attend a
press conference,89 the forums would lose much of the give-and-take atmosphere that is
cultivated.90 The problem, however, is determining which justifications offered to exclude a
reporter from a press conference comport with the First Amendment. The case law is currently
unsettled whether a public official may deny a reporter access to a media event because of
medium in which that reporter publishes. For instance, where bloggers have been denied
credentials because of their non-traditional medium, many complained that the denial violated
their First Amendment right of equal access to information.91 According to Mark Bunster, who
publishes the Loaded Orygun blog and was recently excluded from a government meeting
because, he claimed, he publishes in a non-traditional medium, “If you publish on the Internet

89

In terms of legal standing, the press is no different than any other citizen. See David A. Anderson,
Freedom of the Press, 80 TEX. L. REV. 429 (2002).
90
Luke M. Milligan, First Amendment Discussion Group: Rethinking Press Rights of Equal Access, 65
WASH. & LEE L. REV. 1103, 1106-07 (2008) (“The relationship between public officials and the press is
market, to a large degree, by its transactional nature.”).
91
See supra notes 30-38, at 5-6.

16

 and not for a big newspaper, [government officials] are instantly more suspicious [of you].”92
The analysis below will look at two cases where courts held that journalists may not be excluded
from a media event because of the medium in which they publish.
During the Reagan administration, as is the case today, some newsworthy events
occurred in places where “space limitations or other considerations require limiting the number
of media representatives who may cover a given event.”93 These proceedings were aptly named
“limited coverage” events. In CNN v. ABC, the White House Press Office instituted a new
policy to govern which television media representatives would attend “limited coverage”
events.94 Instead of selecting the television journalists that could attend, the White House
required that “television media representatives themselves determine who will occupy the
available spaces.”95 But when these journalists were unable to decide who should attend, the
White House banned them all.96
The television media sued, claiming that the White House had violated their First
Amendment rights by entirely banning a single type of journalist – television journalists.97 After
initially determining that there was a First Amendment right for television journalists to attend
“limited coverage” events, the court attempted to “balance the interests to be served by the
sought-for newsgathering activity against the interest served by the governmental restraint.”98
92

Telephone Interview with Mark Bunster, publisher of the Loaded Orygun blog (July 8, 2010); see
LOADED ORYGUN, http://www.loadedorygun.net (last visited July 14, 2010).
93
Cable News Network v. ABC, Inc., 518 F. Supp. 1238, 1239 (N.D. Ga. 1981). CNN originally sued the
White House Press Office, ABC, CBS, and NBC claiming that the “big three” were given preferential
treatment to cover “limited coverage” events. Upon CNN‟s suit, the White House Press Office amended
its “limited coverage” policy to the one described above. The above-described case does not involve
CNN‟s original claim against the other media outlets. Rather, the case is only concerned with CNN‟s
challenge of the above-described White House policy.
94
Id. at 1240.
95
Id.
96
Id.
97
See id. at 1245.
98
Id.

17

 The court‟s balancing test, while still being speech protective, was not as strong as a strict
scrutiny analysis.99 The court held that “television news coverage plays an increasingly
prominent part in informing the public at large of the workings of government.” Therefore, the
court held, television reporters could not as a class of journalists be completely excluded from an
event open to other types of media.100
A District of Columbia federal court made a similar finding eight years earlier in
Consumers Union of United States, Inc. v. Periodical Correspondents’ Association.101 At issue
was access to the House and Senate press galleries, which are administered by correspondents‟
associations comprised of credentialed journalists.102 One of these associations, the Periodical
Correspondents‟ Association (PCA), was in charge of administering press passes to the
Periodical Press Gallery for both the Senate and the House.103 Once the PCA issued a credential,
a reporter was not only entitled to access space in the House and Senate chambers set aside from
the general public, but was also permitted to enter exclusive areas where reporters could “seek or
arrange interviews with Senators and Congressmen.”104 Additionally, a congressional press pass
granted the reporter “exclusive permission” to attend daily press conferences.105

Id. at 1244 (citing Richmond Newspapers, Inc., 448 U.S. at 588 (the “enduring and vital tradition of
public entree to particular proceedings or information” and “value” of information gathered at an event
balanced against the government‟s need for a regulation that denied a reporter equal access to
information)).
100
Id.
101
Consumers Union of United States, Inc. v. Periodical Correspondents Ass’n, 365 F. Supp. 18 (D.D.C.
1973), rev’d on other grounds, 515 F.2d 1341 (D.C. Cir. 1975) (reversing because the CPA‟s actions “did
not breach the limits of legislative immunity”).
102
UNITED STATES HOUSE OF REPRESENTATIVES PERIODICAL PRESS GALLERY,
http://periodical.house.gov/index.asp (last visited June 14, 2010).
103
Consumers Union of United States, Inc., 365 F. Supp. at 21.
104
Id. at 21-22.
105
Id. at 22.
99

18

 The Consumers Union, a non-profit organization, published a monthly magazine titled
Consumer Reports, which had a circulation of nearly 2.25 million readers.106 In 1972, the CPA
denied Consumer Reports‟ press pass application. The CPA justified its denial by citing a policy
that prohibited them from credentialing a periodical that was published by “an association or
institution” such as the Consumers Union. The policy only affected journalists working for
periodicals and did not apply to any other type of journalists.107 Consumers Union claimed that
the PCA‟s denial violated the First Amendment and sued. A federal court agreed and rejected
the PCA‟s press credentialing policy, stating that “all types of news compete and all types of
publications are entitled to an equal freedom to hear and publish the official business of
Congress.”108 The court thus held that establishing different rules to govern different types of
journalists bordered on arbitrary, and therefore likely unconstitutional, action.109
The CNN and Consumers Union cases demonstrate that when government officials or
their representatives restrict access to a particular event because of the medium in which a
reporter publishes, the regulation may violate the First Amendment. The court in CNN held that
since television “plays an increasingly prominent part in informing the public at large of the
workings of government,” television journalists could not be excluded from a media event
wholesale.110 Today, the Internet occupies a similar position. Ric Cantrell, Chief Deputy of the
Utah State Senate, said that in the 21st Century, more and more people are receiving their
information about government affairs on the Internet.111 The CNN case can thus be analogized
with bloggers‟ attempts to obtain press passes today. Similarly, any press pass regulation that

106

Id.
Id.
108
Consumers Union of United States, Inc., 365 F. Supp. at 26.
109
Id.
110
CNN, 518 F. Supp. at 1245.
111
Telephone interview with Ric Cantrell, Chief Deputy of the Utah Senate (July 12, 2010).
107

19

 restricts bloggers‟ or other new media journalists‟ access to press events differently than other
types of reporters may run afoul of the court‟s reasoning in Consumers Union. In short, if a
public official denies a journalist access to a media event because that reporter publishes in a
particular medium, the reasoning described above can be used to show that the restriction may
violate the First Amendment.
D.

One For All: Can A Reporter Be Excluded From A Press Conference
Because Other Means Are Available To Gather Information?

As a technical matter, reporters do not need access to a media event in order to report on
public affairs. A reporter who is denied access to an official proceeding could obtain
information in other ways, such as by conducting independent interviews or reading the news
reports written by credentialed journalists. Practically, however, being denied a press pass
restricts how well, and at what pace, reporters can do their jobs. For example, when journalists
were not permitted to access public areas in connection with this year‟s Deepwater Horizon oil
spill in the Gulf of Mexico, many reporters cried “foul.”112 Surely these journalists could have
found other means to report on the oil spill without actually stepping foot on a beach. But as any
reporter knows, first-hand accounts often produce more compelling and true-to-life journalism
than anything that could be achieved through phone conversations and carefully edited press
releases.113
Yet when a reporter has been denied a press pass, public officials often support their
denial by arguing that the lack of a credential does not impede the journalist‟s ability to report

112

Obstructions Continue to Hinder Media Access to Oil Spill, OMB WATCH (July 13, 2010),
http://www.ombwatch.org/node/11132.
113
This Report does not squarely address the controversy surrounding journalists‟ access to the BP oil
spill. In order to properly analyze this issue, the Report would have to address the “state action doctrine.”
See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 168 (1978).

20

 the news.114 That argument was evident in Quad-City, where the newspaper was not permitted
to access certain police records.115 There, the Davenport Police Department argued that
notwithstanding a credential, the reporters was still able to access newsworthy information in
other ways.116 Similarly, in a later case in Illinois, public officials argued that denying a reporter
access to particular events posed no First Amendment concern because “alternate information
sources” were always available.117 This part of the Report will conclude by analyzing one
argument journalists have used to counter public officials‟ contention that no First Amendment
violation attaches to the denial of a press pass because other avenues of obtaining information
exist.
On March 8, 1998, reporter Tori Marlan published an article in The Chicago Reader
regarding a class action lawsuit against the Cook County Department of Corrections (DOC).118
The story pertained to the DOC‟s practice of strip-searching female, but not male, inmates.119
After the article was published, Marlan started working on another story involving the DOC‟s
Chicago Legal Aid for Incarcerated Mothers (CLAIM) program.120 According to CLAIM‟s
website, the program “provides legal and educational services to maintain the bond between
imprisoned mothers and their children.”121 Although the DOC was willing to answer Marlan‟s
questions about CLAIM, it prohibited her from attending the program‟s in-class sessions.122

See, e.g., Smith v. Plati, 258 F.3d 1167, 1177-78 (10th Cir. 2001) (“Plati‟s actions may have made it
more difficult to obtain some information . . . but alternative avenues to information remained open.”).
115
See supra notes 63-68, at 11.
116
Quad-City Cmty. News Serv., Inc., 334 F. Supp. at 16-17.
117
Chicago Reader v. Sheahan, 141 F. Supp. 2d 1142, 1143 (N.D. Ill. 2001).
118
Id.
119
Id.
120
Id.
121
CLAIM, Chicago Legal Advocacy for Incarcerated Mothers, http://www.claim-il.org (last visited July
14, 2010).
122
Chicago Reader, 141 F. Supp. 2d at 1143.
114

21

 Marlan and The Chicago Reader sued the DOC claiming that the denial violated the First
Amendment.
In defense of its decision, the DOC argued that the First Amendment did not prohibit it
from excluding Marlan from the CLAIM sessions because the reporter could have gathered
information about CLAIM in other ways, such as through interviews. A judge, however,
rejected that argument and held that the “alternative sources defendants offered are not adequate
substitutes for first-hand observations. Reporters frequently do resort to alternative sources
when first-hand observations are not possible, but that in no way negates that actually being there
is optimal.”123 In coming to its conclusion, the court echoed the opinion issued 27 years earlier
in Quad-City:
Without the access provided by passes, the press will be limited in these events to
information gleaned from official records, assuming that the press is subsequently
granted access to those records. And even when such records are available, they
may be no way for the press to fulfill its historic function of providing an
independent and perhaps alternative view to the official interpretation.124
Despite these strong holdings, courts are not unanimous when deciding whether alternate
avenues of newsgathering mitigate journalists‟ right of equal access to information. In Smith v.
Plati, for example, the plaintiff published a non-profit website, NetBuffs, focused on athletics at
the University of Colorado at Boulder.125 After the school determined that NetBuffs was “in
some way in competition with the website still operated by the university‟s Office of Media
Relations,” school officials excluded Smith from attending university football practices and
prohibited him from speaking with athletic coaches.126 The blogger challenged the regulation,
but in contrast to the Quad-City and The Chicago Reader cases, lost his battle. According to the

123

Id. at 1146.
Quad-City Cmty. News Serv., Inc., 334 F. Supp. at 17.
125
Smith, 258 F.3d at 1172; NETBUFFS, http://netbuffs.com (last visited July 14, 2010).
126
Smith, 258 F.3d at 1172.
124

22

 court, the university‟s “actions may have made it more difficult to obtain some information
regarding the [u]niversity‟s varsity athletic programs, but alternative avenues to information
remain open.”127 Additionally, the court said that university officials “did nothing to affect an
ordinary person‟s ability to actually maintain a website.”128 The court noted that at all times
during the ban, “Smith retained . . . the ability to speak freely about any political, social or other
concern related to the University of Colorado athletic programs.”129
If a reporter is denied a press pass and challenges the policy, a public official would
likely claim that the First Amendment is not at issue since other means are available to gather
information. To riposte, a journalist may argue that while there may not be a First Amendment
right to gather news,130 denying a reporter a press pass prevents him from offering “an
independent and perhaps alternative view” of the days events, thus stifling his ability to publish
newsworthy information.
II.

. . . AND THE COLD SHOULDER ONCE YOU’RE THERE: THE LAW OF
UNEQUAL AND DISCRIMINATORY ACCESS TO INFORMATION
Members of the press are, and should be, proud of their watchdog function. However,

the press and government are not completely antagonistic. Reporters covering state capitols,
local cops-and-court beats, and spot-news rely on constant contact with government actors.
Whether it is for a quick quote or an off-the-record conservation, reporters need to secure
information from public officials in order to ensure an informed electorate.

127

Id. at 1177.
Id.
129
Id.
130
Supra notes 14-24, at 2-3.
128

23

 As previously noted, there is little First Amendment right to access non-public
information.131 That does not mean, however, that the press has no protection against public
officials who offer information to some reporters while denying it to others.132 The legal
problem here is defining the scope of this right. If a government official were to offer a
particular reporter an exclusive interview or leak a document to a single news outlet, few
reporters would claim a First Amendment violation had taken place. To most reporters, this type
of unequal access to information may appear palpable or even desirable. The ability to land a
“scoop” or book an exclusive interview is often what puts some reporters on the fast-track to
stardom. According to Mark Segraves, a veteran investigative reporter with WTOP Radio in
Washington, D.C., unequal access to information is vital to reporting on public affairs.
“Exclusive sources or leaked information is as important as information obtained through the
front door, and sometimes even more so,” Segraves said.133
Not all forms of unequal access to government-held information, however, are as benign
as an exclusive interview or leaked document. Unequal discrimination can take a more ominous
tone when a public official issues an “edict” banning all subordinates from speaking with a
particular reporter or news agency.134 This form of discrimination smacks of a government
official‟s attempt to control the press. The difficulty here is finding a legal tool that permits
journalists to obtain exclusive interviews and information in one instance while at the same time
prohibiting more invidious forms of discriminatory access to information. This Report will
continue by offering two examples of government officials instituting policies that effectively
Supra notes 14-24, at 2-3. See L.A. Police Dep’t., 528 U.S. at 40; Capital Cities Media, Inc. v. Pa.
Dep’t of Envtl. Res., 797 F.2d 1164, 1168 (3d Cir. 1986) (“It simply does not seem reasonable to suppose
that the free speech clause would speak, as it does, solely to government interference if the drafters had
thereby intended to create a right to know and a concomitant governmental duty to disclose.”).
132
Viewpoint Discrimination & Media Access at 1021-22.
133
Telephone interview with Mark Segraves, Reporter with WTOP Radio (July 6, 2010).
134
Raycom Nat’l, Inc., 361 F. Supp. 2d at 681.
131

24

 ban specific reporters from covering public affairs. Next, it will detail several ways that news
organizations have challenged these policies.135 Consistent with the previous part, if journalists
were to fall victim to one of these bans, they may be able to convince public officials to rethink
their decisions by offering the analysis offered in this Report.
A.

A Newsroom Nightmare: Two Worst-Case Scenarios Of Public Officials
Discriminating Against Reporters.

The most recent headline-catching event involving a public official discriminating against
a reporter came in 2004 when journalist David Nitkin of The Baltimore Sun wrote a series of
articles concerning the sale of Maryland state land to an unidentified “benefactor.” Among the
state officials driving the Maryland sale was former Maryland Governor Robert Ehrlich, Jr.136
The plan was to sell the state land to the benefactor on the understanding that after the
unidentified benefactor bought the land, he or she would then donate 150 of the 836 acre tract to
St. Mary‟s County for public schools.137 The benefactor would then, according to the plan, hold
the remaining 686 acres for one year before selling it to a conservation organization, netting a $7
million tax break.138 In October 2004, Nitkin identified the benefactor as Willard Hackerman,

135

This Report is focused on the First Amendment arguments put forward in regard to discriminatory
access to public information. In addition to the claims described here, some media outlets have
challenged the policies described below based on equal protection grounds as well. Raycom Nat’l, Inc,
361 F. Supp. 2d at 686-87 (journalists‟ equal protection challenge to a policy that banned public officials
from speaking to a news outlet was unlikely to survive as the court employed rational basis review);
Quad-City Cmty. News Serv., Inc, 334 F. Supp. at 24-26 (equal protection claim raised when a particular
news outlet was excluded from inspecting police records invoked strict scrutiny); McCoy v. Providence
Journal Co., 190 F.2d 760, 766 (1st Cir. 1951) (offering records to one news outlet and not another
“constitutes a denial of equal protection of the laws”). Additionally, this Report does not discuss the
possible “overbreadth” challenge that a reporter may bring as a result of a discriminatory policy. See
Stephanie L. Hogan, Amy S. Smushahwar and Charles D. Tobin, Litigating Retaliation Claims After
Baltimore Sun v. Ehrlich, 23 COMM. LAWYER 7, 11 (2006).
136
Ehrlich lost his reelection bid in the 2006 gubernatorial election to then-Baltimore Mayor Martin
O‟Malley. Ehrlich has recently decided to run for Maryland governor in the 2010 election.
137
St. Mary‟s County is Maryland‟s southern most county on the western side of the Chesapeake Bay.
138
Joseph S. Johnston, Comment: A Poisoned Arrow in His Quiver: Why Forbidding An Entire Branch
Of Government From Communicating With A Reporter Violates The First Amendment, 36 U. BALT. L.
REV. 135, 138-39 (2006) (hereinafter “Johnson”).

25

 the owner of a contracting company who was rumored to be politically connected to many
Maryland public officials. The next month, Nitkin reported that Hackerman had actually
intended to use the land to “build houses with a water view on preserved land in St. Mary‟s
County that he secretly negotiated to buy from the State.”139 Nitkin then published a story that
said Governor Ehrlich had “collected $100,000 for his re-election campaign at a private
fundraiser held by a business partner” of Hackerman, making the estate deal appear to be a
political kick-back.140
Governor Ehrlich quickly criticized Nitkin‟s articles. After one report was published in
late October that year, the former Governor was quoted as saying that he had “a big problem
with the way this story has been portrayed. . . . It is so inappropriate to characterize this as some
sort of negotiation, some backroom deal, when there was no backroom.”141 Nitkin continued to
report on the story and Hackerman eventually withdrew his bid to buy the land.
Nitkin was not the only Sun employee on Ehrlich‟s bad side. On November 16, 2004,
Sun columnist Michael Olesker erroneously quoted a Maryland public official working for
Ehrlich. The columnist wrote that one of Ehrlich‟s top aides, Paul Schurick, was present at a
meeting regarding a state tourism advertising campaign.142 The column implied that Olesker was
there to witness Schurick‟s presence and hinted that the campaign was being created for
Ehrlich‟s personal political gain. Ehrlich challenged the column, claiming that Olesker was
never at any such meeting. Eight days after the column was published, Olesker wrote an apology

139

David Nitkin, Ehrlich: Probe of Land Deal Unneeded, BALT. SUN, Nov. 12, 2004 at 1B, 5B.
David Nitkin & Andrew A. Green, Hackerman’s Partner Held Fund-Raiser for Governor, BALT. SUN,
Nov. 16, 2004, at 1A.
141
David Nitkin, Ehrlich Neutral on Sale of Land, BALT. SUN, Oct. 26, 2004, at 4B.
142
Johnson at 141.
140

26

 to Sun readers admitting his mistake.143 As a result of Nitkin and Olesker‟s stories, Governor
Ehrlich issued a sweeping directive on November 18, 2004:
Effective immediately, no one in the Executive Department or Agencies is to
speak with David Nitkin or 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.144
Ehrlich later said that he issued the directive as a last resort to combat Nitkin and Olesker‟s poor
reporting, calling it “the only arrow in [his] quiver.”145
A similar situation came to a head in 2005, more than 300 miles northeast of Annapolis,
Maryland.146 In that case, The Business Journal, a bi-monthly newspaper published in
Youngstown, Ohio, regularly published articles about the Youngstown City government and
former Mayor George M. McKelvey.147 In February 2003, The Business Journal took a
particularly critical stance against McKelvey‟s support for the construction of a new city
convocation center. As a direct result of The Business Journal‟s critical stories, McKelvey
issued an oral directive to various city officials instructing them not to speak with reporters from
The Business Journal. The newspaper filed multiple public records requests in an attempt to
circumvent McKelvey‟s orders and obtain information about the Youngstown government.
Those requests were initially denied by McKelvey‟s administration but were later fulfilled. Two
years later, as to clarify the 2003 prohibition, McKelvey wrote a letter to Andrea Wood, the
publisher of The Business Journal. In that letter, McKelvey confirmed that there was a “No-

Id.; Michael Olesker, It’s All About the Job-Not the Political Parties, BALT. SUN, Nov. 24, 2004, at
4B.
144
Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 413 (4th Cir. 2006) (alterations omitted).
145
Complaint at p. 17, Balt. Sun Co. v. Ehrlich, 356 F. Supp. 2d 577 (D. Md. 2004).
146
Youngstown Publ’g Co. v. McKelvey, Case No. 4:05 CV 00625, 2005 U.S. Dist. LEXIS 9476 (N.D.
Ohio May 16, 2005).
147
Id. at *2.
143

27

 Comment Policy” in place forbidding city officials from “communicating with Business Journal
reporters and representatives about City business” outside of open-records requests.148
The Ehrlich and Business Journal cases are some of the most overt instances of public
officials discriminating against a particular reporter or news outlet,149 but other forms of unequal
treatment exist. For example, in a 1998 case, Samuel Ringgold, a Baltimore City Police
Department official, forced Terrie Snyder, a reporter formerly with WBAL-TV, to “submit all
requests for information” to the Police Department in writing.150 Snyder was the only reporter
that had to comply with this requirement. Ringgold claimed that the television reporter was
singled out because she had developed a habit of publishing “off-the-record” information and
regularly abused the “Department‟s public information system by paging officers unnecessarily
on weekends.”151 Snyder argued that she was being discriminated against because the
Department was displeased with the content of her reporting.152 In another case, Texas public
officials required the Southwestern Newspapers Corporation, which published the Amarillo
Daily News, Amarillo Globe-Times, and Amarillo Sunday News-Globe, to make an appointment
before gathering any information regarding a Texas district attorney.153 In yet another case,
Louisiana officials simply stopped notifying The Times-Picayune when press conferences were
taking place. The policy was the result of a story that rubbed one public official the wrong

Id. The relevant part of the letter written to Wood read: “As Mayor of Youngstown, I do not dispute
that I have instructed members of my administration not to make statements to the Business Journal
except to fulfill the city’s obligations regarding public records requests. . . I have mad the determination
the City administrators and employees may not comment to the Plaintiffs [The Business Journal] on
behalf of the City.” Youngstown Publ’g Co. v. McKelvey, Nos: 05-3842, 2006 U.S. App. LEXIS 16586,
at *6 (6th Cir. June 27, 2006).
149
See Raycom Nat’l, Inc., 361 F. Supp. 2d at 684-85; Borreca, 369 F. Supp. 906.
150
Snyder, No. 97-1358, 1998 U.S. App. LEXIS 562, at *4.
151
Id. at *4.
152
Id.
153
Sw. Newspapers Corp. v. Curtis, 584 S.W.2d 362, 363-64 (Tex. Civ. App. 1979).
148

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 way.154 The remaining sections of this Report describe some of the ways reporters have
challenged these types of discriminatory policies.
B.

Straight Up: Does The First Amendment Protect Reporters From Vengeful
Public Officials?

The first thought that might cross a reporter‟s mind after learning of cases where public
officials have enacted discriminatory policies is that the First Amendment must protect against
such behavior. And, to a certain extent, courts have agreed. For example, in the Times-Picayune
case, not only did the public official stop notifying reporters when press conferences were being
held, but the newspaper was forced to submit all questions to the Jefferson Parish Sheriff‟s
Office in writing.155 When the sheriff‟s office replied to an inquiry by the Times-Picayune, it did
so only in writing and the answers had to be picked-up at the sheriff‟s office. The newspaper
sued claiming that the written requests significantly impaired reporters‟ ability to gather and
report the news in a “timely, comprehensive and informative manner.”156 The court, siding with
the newspaper, stated: “Discriminatory governmental action aimed at the communicative impact
of expression is presumptively at odds with the First Amendment. Above all else, the First
Amendment means that the government cannot restrict freedom of expression on the basis of its
ideas, message or content.”157 The court went on to state that the First Amendment protects, “at
a minimum, a [particular reporter‟s] right of access to information made available to the public
or made available generally to the press.”158

Times-Picayune Publ’g Co., Civ. A. No. 88-1325, 1988 U.S. Dist. LEXIS 3506, at *4.
Id. at *6-*7.
156
Id. at *19.
157
Id. at *21.
158
Id. at *24.
154
155

29

 Other courts have made similar findings. In Southwestern Newspapers,159 the court said
that the First Amendment likely160 prohibited a public official from denying a media outlet
“access to news sources made available to other news media personnel.”161 Then, in a later case,
another court noted that:
The danger in granting favorable treatment to certain members of the media is
obvious: it allows the government to influence the type of substantive media
coverage that public events will receive. Such a practice is unquestionably at
odds with the first amendment. Neither the courts nor any other branch of the
government can be allowed to affect the content or tenor of the news by
choreographing which news organizations have access to relevant information.
The district court erred in granting access to one media entity and not the other.162
Not all courts, however, agree that the First Amendment protects a reporter from policies
that discriminate among members of the media. In the Snyder case, like the Times-Picayune
case, a single reporter was forced to submit all requests for information to a police department in
writing.163 Unlike the Louisiana case, however, the Snyder court upheld the policy. In doing so,
it noted a problem with interpreting the First Amendment to proscribe unequal access to
information. According to the court, such an understanding would prohibit “the common and
widely accepted practice among politicians of granting an exclusive interview to a particular
reporter”164 and “preclude the equally widespread practice of public officials declining to speak
to reporters they view as untrustworthy.”165 The decision in Raycom National Inc. v. Campbell
echoes this point, stating that if the First Amendment were to prevent public officials from

159

Supra note 153, at 28.
Supra note 52, at 9.
161
Sw. Newspapers Corp., 584 S.W.2d at 366-67.
162
Anderson v. Cryovac, 805 F.2d 1, 9 (1st Cir. 1986) (The Globe Newspaper sued a public official after
being prohibited from accessing discovery materials while other members of the public were not so
barred).
163
Snyder, No. 97-1358, 1998 U.S. App. LEXIS 562, at *4.
164
Id. at *10.
165
Id.
160

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 discriminating against a particular reporter, it “would have the effect of conferring preferential
status” on the media over the general public.166
These two lines of cases demonstrate that there is a disagreement as to whether the First
Amendment broadly protects against discriminatory policies.167 This Report continues by
offering other arguments a media outlet may make to combat policies that treat one reporter
differently than another.
C.

An Eye For An Eye: Do Constitutional Protections Against Retaliation
Bar Discriminatory Policies?

As discussed, a broad First Amendment claim has been successful in changing policies
that discriminate among reporters. In addition, other objections to such practices may be
effective as well. One of these is known as a “retaliation” claim.168 As the Ehrlich court put it,
since “government retaliation tends to chill an individual‟s exercise of his First Amendment
rights, public officials may not, as a general rule, respond to an individual‟s protected activity
with conduct or speech even though that conduct or speech would be otherwise be a lawful
exercise of public authority.”169 In order to successfully argue that a discriminatory policy is an
unconstitutional “retaliation,” a reporter generally must show that: 1) the reporter or media
outlet engaged in constitutionally-protected speech; 2) the government action was motivated by

Raycom Nat’l, Inc., 361 F. Supp. 2d at 684.
Compare Snyder, No. 97-1358, 1998 U.S. App. LEXIS 562, at *8 (“No Supreme Court or Fourth
Circuit case has held that reporters have a constitutional right of equal or nondiscriminatory access to
government information”) with Anderson, 805 F.2d at 9 (discriminatory access “is unquestionably at odds
with the first amendment”).
168
Balt. Sun. Co., 437 F.3d at 415.
169
Id. (citing Bd. of Cnty. Comm’rs. v. Umbehr, 518 U.S. 668, 674 (1996)); see Perry v. Sindermann, 408
U.S. 593, 597 (1972) (“If the government could deny a benefit to a person because of his constitutional
protected speech . . ., his exercise of those freedoms would in effect be penalized and inhibited.”).
166
167

31

 the exercise of that speech; and 3) the government action is likely to stop or slow a person from
exercising such speech in the future.170
In most cases, the claim‟s third requirement is the hardest to meet.171 For example, in
The Chicago Reader case, the reporter was denied access to a motherhood training class inside of
a prison because of a story she published about the jail earlier that year. The court held that
denying the reporter access constituted an impermissible chilling of the press, effectivly slowing
the reporter from exercising protected speech.172 However, in Smith v. Plati, officials at the
University of Colorado at Boulder, a state-run university, denied a blogger access to football
practices because, the blogger claimed, his blog directly competed with the university‟s own
athletics website.173 The court held, similar to the Ehrlich case, that the ban did not chill, stop, or
slow protected speech and was therefore constitutionally permissible.
The key to understanding why the court in Smith held that a discriminatory policy did not
chill constitutionally protected speech while the court in The Chicago Reader held that a similar
policy did is to examine what type of speech those courts sought to protect. In Smith, the blogger
was still able to write about the school‟s athletic teams after he was blackballed.174 Similarly, in
Ehrlich, both Nitkin and Olesker continued to write about the former governor notwithstanding
the ban.175 The court in The Chicago Reader, however, did not look at whether the
discriminatory policy stopped a reporter from publishing any type of constitutionally-protected

170

Chicago Reader, 141 F. Supp. 2d at 1144; Smith, 258 F.3d at 1176; see Balt. Sun. Co., 437 F.3d at
416.
171
There is a significant disagreement among courts as to whether the “person of ordinary firmness”
should be interpreted to be as a journalist of ordinary firmness or a typical member of the public of
ordinary firmness. See Stephanie L. Hogan, Amy S. Smushahwar and Charles D. Tobin, Litigating
Retaliations Claims After Baltimore Sun v. Ehrlich, 23 COMM. LAWYER 7, 8-9 (2006).
172
Id.
173
Smith, 258 F.3d at 1172.
174
Smith, 258 F.3d at 1178.
175
Balt. Sun Co., 437 F.3d at 419.

32

 speech. Instead, the court looked at whether the discriminatory policy chilled a reporter from
engaging in the same type of speech that he or she had published prior to being singled out for
unequal treatment – that is, hard-hitting reporting. “A reporter might well tone down a critical
article if she feared that jail officials might terminate, or even restrict, her future access,” The
Chicago Reader court said. “That is exactly the type of chilling effect the First Amendment
guards against.”176
Yet another wrench has been thrown into this labyrinth of legal analysis. In response to
retaliation lawsuits, public officials often argue that forcing them to offer equal access to
information would infringe on their own First Amendment right not to speak or to speak only to
individuals whom they choose. According to Jerome Barron, a professor at The George
Washington University Law School, “[t]he compelled speech aspect here is substantial.”177
Take, for instance, the case of Rafael Martínez Alequin, the blogger who was denied NYPD
press credentials.178 Although the blogger may now attend New York City Mayor Michael
Bloomberg‟s press conferences, that does not mean the mayor must speak with Alequin. “He
just ignores me like I‟m invisible,” Alequin said. “He never answers my questions.”
Courts have noted this problem as well. For example, in Raycom National Inc.,179 Jane
Campbell, the former Mayor of Cleveland, issued an “edict” prohibiting city officials from
speaking with reporters at WOIO-TV, a local television news station.180 The “edict” was
precipitated by a truthful news report aired by WOIO that stated Cleveland police officers earned

176

Chicago Reader, 141 F. Supp. 2d at 1146. See New York Times Co., 403 U.S. at 723-24 (Douglass, J.,
concurring) (“The dominant purpose of the First Amendment was to prohibit the widespread practice of
governmental suppression of embarrassing information.”).
177
Interview with Jerome A. Barron, Harold H. Greene Professor at Law, in Washington, D.C. (July 6,
2010).
178
Supra notes 30-35, at 5-6.
179
Raycom Nat’l, Inc., 361 F. Supp. 2d at 679.
180
Id. at 681.

33

 thousands of dollars in overtime pay while driving Mayor Campbell‟s family around the city and
on out-of-state trips. Despite the obvious retribution implicit in Campbell‟s “edict,” a court
stated that WOIO was unlikely to prove that a First Amendment retaliation claim existed.181 The
court noted that when Campbell chose not to speak to WOIO reporters, thus slowing their ability
to report on the news, she was effectively exercising here right “not to speak with a media
organization [she] view[ed] as irresponsible.”182 As another court put it, “The proper exercise by
the [government official] of their own free speech rights cannot serve as the basis for imposition
of liability upon those individuals.”183
In order to rebut this “compelled speech” claim, reporters could make one of two
arguments. First, they could state that discriminatory policies, those written commands or
“edicts” issued by the heads of government offices, do not constitute communicative speech and
therefore are not encompassed within the First Amendment. For example, in The Chicago
Reader, the court stated that a policy excluding a particular reporter from observing a
motherhood class “did not involve speech” protected by the First Amendment.184 Second, a
reporter or news outlet may argue that a discriminatory policy that prompts a government official
to stay tight-lipped toward a particular reporter is itself a type of threat, harassment, or form of
intimidation that is not constitutionally protected.185 By using the rationale and the precedent

181

Id. at 686.
Id.; see McBride v. Vill. of Michiana, Case No. 4:92-CV-155, 1998 U.S. Dist. LEXIS 6082, at *27-31
(W.D. Mich. April 2, 1998) (Instruction to village employees not to speak with a reporter upheld because
it was “protected counterspeech” by public officials). This Report does not detail the tests for what
constitutes constitutionally protected “speech.” For such a discussion, see R. George Wright, Article:
What Counts as ‘Speech’ in the First Place?: Determining the Scope of the Free Speech Clause, 37 PEPP.
L. REV. 1217 (2010).
183
McBride v. Vill. of Michiana, 100 F.3d 457, 462 (6th Cir. 1996).
184
Chicago Reader, 141 F. Supp. 2d at 1145. The court‟s discussion on this topic is non-existent,
bordering on ipse dixit.
185
See Chicago Reader, 141 F. Supp. 2d at 1145; McBride, 100 F.3d at 461; Raycom Nat’l, Inc., 361 F.
Supp. 2d at 686; Balt. Sun Co., 437 F.3d at 420.
182

34

 cited above, a reporter, blogger, or media organization may be able to convince a public official
who has issued a discriminatory “edict” to stop the policy.
D.

Old Faithful: Will The Public Forum Doctrine Save Reporters From Policies
Promoting Unequal Access?

The public forum doctrine, as discussed in Part II of this Report, is an effective tool to
challenge a public official in the context of media credentialing. These forums are governmentcontrolled places or events that have been voluntarily opened to the general public (or media) for
a specific type of expressive activity.186 Once public officials have created a public forum, they
may not exclude a reporter from that forum because of something that journalist had published –
a content-based restriction – without overcoming a high judicial bar.187
The public forum doctrine offers little assistance, however, when public officials enact
policies that bar subordinates from speaking to the press.188 A public forum is an area of a
government-controlled facility that has been generally opened to the news media. According to
Professor Barron, when a reporter calls a public official and asks for information, no such forum
exists because that phone call is not generally open to other reporters.189 This, coupled with a
public official‟s right to not speak to a particular reporter,190 weakens any public forum argument
that a reporter might make to challenge a discriminatory policy. In sum, the public forum
doctrine may be a weak tool when attempting to combat policies that discriminate against a
single reporter.

186

See Telemundo of L.A., 283 F. Supp. 2d at 1102-03.
Supra note 44, at 7.
188
See supra notes 136-54, at 25-29.
189
Interview with Jerome A. Barron, Harold H. Greene Professor at Law, in Washington, D.C. (July 6,
2010).
190
Supra notes 177-183, at 33-34.
187

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 E.

The Power Of The Pen: What Else Can A Reporter Do To Fight A
Discriminatory Policy?

Despite the persuasiveness of a reporter‟s argument, some public officials may simply be
unwilling to listen to reason and determined to instill discriminatory policies regardless of the
legal implications. In such a scenario, a journalist may have to resort to what could be the most
effective weapon of all – the front page. “If this is happening,” Lucy Dalglish, Executive
Director of the Reporters Committee for Freedom of the Press, said, “report it to me.”191
Dalglish noted that when all else fails, the political pressures associated with cutting out a critical
newspaper reporter will eventually force politicians to rescind discriminatory policies.
Additionally, using newsprint may serve as a viable alternative to fighting discriminatory
policies given of the amount of time needed to adjudicate an issue in the court system. Legal
cases often go on for years. Excluding a particular journalists from government-held information
for that length of time could make particularly good copy, especially if other media outlets chose
to report on the story as well. As the press continued to report on a government official‟s “edict”
or “no-comment policy,” pressure would undoubtedly build as constituents read headline after
headline detailing what could be an official‟s attempt to control the press.
III.

CONCLUSION
This Report lays out the legal arguments any journalist or news outlet could use to

combat policies that treat one reporter differently than another. The analysis outlined in this
Report would also serve a litigating attorney well, but is primarily intended to be used before
entering into a courtroom. If a reporter were to be subjected to a discriminatory regulation,
whether it concern press passes or a “no-comment policy,”192 he or she should attempt to

191

Interview with Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the
Press, in Arlington, Va. (June 28, 2010).
192
Times-Picayune Publ’g Co., Civ. A. No. 88-1325, 1988 U.S. Dist. LEXIS 3506, at *4.

36

 convince a public official to revise or voluntarily eliminate the regulation by pointing to the
numerous legal arguments and theory contained in this Report. Through a thoughtful and nonthreatening discussion of the press‟ rights and First Amendment jurisprudence, a reporter may be
able to convince a public official that discriminatory regulations hampering a reporter‟s ability to
do his or her job are not just bad policy, but are unconstitutional as well.

37