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Colbert I. King

An Affront to the First Amendment

By Colbert I. King
Saturday, March 5, 2005; Page A19

A hard-hitting column by a newspaper opinion writer is not exactly news. But when an organization dedicated to protecting First Amendment rights takes out after a columnist for exercising his freedom of expression, that indeed is newsworthy. What's more, it's outrageous. And that is exactly what occurred last Saturday on The Post's Free for All page, when, in a letter to the editor, Kevin M. Goldberg, general counsel of the American Society of Newspaper Editors, tore into Metro columnist Marc Fisher for a piece he wrote about Maryland Gov. Robert L. Ehrlich Jr.'s gag order against two Baltimore Sun journalists.

How did we reach this point?

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Last November, Ehrlich, in one of his by-now-familiar hissy fits with the media, issued an order forbidding state employees from speaking with the Baltimore Sun's State House bureau chief, David Nitkin, and columnist Michael Olesker. "Do not return calls or comply with any requests" was the order delivered by Ehrlich's press secretary, Shareese N. DeLeaver. Ehrlich, you see, didn't like what they were writing about him and his administration. Of course, lots of politicians don't like what gets written about them, and they have devised clever ways of making it difficult for the media to tell the public what's really going on. But for Ehrlich, a moment's thought is always a moment wasted. He rashly decided to publicly ostracize two journalists who got under his skin.

Sun editor Timothy A. Franklin accused Ehrlich of "trying to control the flow of news and information," adding, "that's pretty scary in a democracy." The Post, in a Nov. 23 editorial, also weighed in on the side of the Sun, stating: "If Mr. Ehrlich has any sense of open government, he should stop trying to pick and choose the reporters who cover him -- and whose job is to keep the public informed of what state government is doing."

Nothing doing, was the unmistakable response from the State House. The gag order stayed in place.

So the Sun sued in federal court last December, arguing that the ban infringed Nitkin's and Olesker's First Amendment rights because it prevented them from doing what can be done by citizens and other news organizations. The sun, however, set on the Sun's lawsuit.

Last month U.S. District Judge William Quarles dismissed the newspaper's lawsuit, noting that while "the right to publish is expansive," it "does not carry with it the unrestrained right to gather information." The Sun, Quarles said, was trying to obtain more access to government than private citizens have. The Sun said it is going to appeal. Which brings us to the present sad state of affairs in the Fourth Estate.

Between the time of Ehrlich's November gag order and Judge Quarles's February ruling, Marc Fisher offered his thoughts on the subject ["The Sun Should Rise Above Ehrlich's Pique," Dec. 9]. No need to repeat all of Fisher's observations in this column except to note that he didn't think the Sun had a legal leg to stand on. He wrote that "suing the governor is no less grandstanding than Ehrlich's cynical appeal to voters who mistrust the news media," and that "The Sun should make its case through quality journalism, not legal briefs."

What struck me at the time as being most remarkable about the column was that it had been written by one of Ehrlich's most persistent critics. Otherwise, Fisher was doing what good columnists try to do: present arguments and opinions as accurately, honestly and convincingly as possible.

Now enter stage left (or right) the American Society of Newspaper Editors, represented by general counsel Goldberg. Evidently bent out of shape because Judge Quarles cited Fisher's column three times to illustrate that the Sun was not speaking for all media, Goldberg wrote last Saturday that Fisher had "done a disservice to his reporting brethren" by "publicly" stating his views. Acknowledging Fisher's right to state his beliefs, Goldberg declared, incredibly, that "the responsibility that accompanies that right mitigates against stating them in this situation." This from the American Society of Newspaper Editors. Now who's trying to stifle the free flow of information to the public?

To suggest that an opinion writer withhold a commentary because it might not be convenient for the society is antithetical to journalism's core values. Freedom of expression, public enlightenment, advocating a point of view whether popular or unpopular -- what are these? Nice, quaint ideas that get tossed aside when they run afoul of ASNE's interests? Or was Goldberg speaking for himself? For the sake of the First Amendment, columnists and op-ed pages everywhere, I hope he was.

kingc@washpost.com


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