Since the NYT disclosed the classified terrorist finance-tracking SWIFT program we’ve all been debating what the White House should do about it. Should it punish the leakers (assuming it can find them and that they’re within legal reach), or should it also go after the NYT editors and reporters involved in the story? Should it revoke the Times’ press credentials to the White House itself and/or order its staff and members of the executive branch not to speak to Times reporters at all? Would it be legal for the WH to do any of that?
Believe it or not, the issue of limiting a newspaper’s access to elected politicians has been adjudicated in the past two years.
On November 18, 2004, Maryland Gov. Bob Ehrlich ordered his staff not to talk to two Baltimore Sun reporters, David Nitkin and Michael Olesker, on the grounds that they were biased against Ehrlich and did not report fairly. The Sun sued on First Amendment grounds:
The Sun’s lawsuit said that the governor’s directive, issued on Nov. 18, 2004, discourages “speech by any citizen of Maryland who disagrees with the Governor, and it will leave the door open for any public official to punish any individual who says something the government does not like.”
Journalists do not have a greater First Amendment right than private citizens to access government information, a federal judge ruled today in dismissing a lawsuit against Maryland Gov. Robert Ehrlich for freezing out a Baltimore Sun reporter and columnist.
Ehrlich did nothing illegal Nov. 18 when his press office ordered state public information officers and executive branch officials “not to return calls or comply with any requests” from Statehouse Bureau Chief David Nitkin or columnist Michael Olesker, who both write about state government, Judge William D. Quarles ruled.
“The right to publish news is expansive. However, the right does not carry with it the unrestrained right to gather information,” Quarles wrote in an eight-page ruling which rejected the contention of the Sun’s Dec. 3 lawsuit that Ehrlich’s ban violated the First Amendment. The Sun sought what Quarles called “privileged status beyond that of the private citizen.”
“Because . . . the Sun seeks the declaration of a constitutional right that neither the Supreme Court nor the [U.S. Court of Appeals for the] Fourth Circuit has recognized — and, in fact, seeks more access than that accorded a private citizen — the Governor’s motion to dismiss will be granted,” Quarles wrote.
So the White House probably could revoke the Times’ credentials allowing its reporters into the daily briefings, and it could theoretically forbid anyone in the executive branch from talking to any Times personnel at all. This won’t stop leaks from people who are already violating their non-disclosure agreements and won’t stop leaks coming from Congress. But it would at least put the Times on notice that it can’t expect to keep on publishing classified war-related secrets and maintain all of its access to the administration.
Imho, prosecution is still in order whether the White House revokes credentials and freezes out reporters or not.