On Wednesday, February 15, the Fourth Circuit affirms a district court ruling in favor of the governor of Maryland, and against The Baltimore Sun newspaper. The paper had filed suit in response to an executive directive from the governor’s office, providing that no member of the Maryland Executive Department was permitted to speak with a reporter and a columnist, both named in the directive. The directive did not apply to other reporters at the Sun. The case is The Baltimore Sun v. Ehrlich.

In reaching its conclusion, the court points to a concession made by the paper during oral argument, to the effect that the governor, like other elected officials, has the right to decide on a case-by-case basis which reporters he will talk to and which he will not. These decisions are made based on the official’s history with each given reporter and the degree of trust thus cultivated; an official would unquestionably be entitled to refuse to speak with a reporter who, for example, had previously breached an agreement to keep certain comments off the record. The appellate court finds that this concession is dispositive of this appeal, since there is no meaningful distinction between such “favoritism” on a case-by-case basis and the blanket policy enacted by Governor Ehrlich. The court sums up its findings in these terms:

“. . . [W]e conclude that in the ongoing intercourse of government and press, a reporter endures only a de minimis inconvenience when a government official denies the reporter access to discretionary information or refuses to answer the reporter’s questions because the official disagrees with the substance or manner of the reporter’s previous expression in reporting.”