No. The First Amendment has been recognized as prohibiting officials from reacting to unwelcome news coverage or editorial opinion by cutting the offending journalist or news organization off from access opportunities freely afforded to others. Courts have repeatedly applied this principle in a variety of contexts, for example:
- A Honolulu mayor’s banishing of a particular reporter from his news conferences (Borreca v. Fasi, 369 F.Supp. 906 (Dist. Ct. Hawaii 1974));
- An Texas district attorney’s order that a particular reporter be given interviews only by appointment, while others were free to ask him questions on the fly (Southwestern Newspapers Corp. v. Curtis, 584 S.W.2d 362 (Tex. Ct. Civ. App. 1979));
- The order of a federal judge in Milwaukee, as a sanction for “misconduct” not backed by any evidence, that a reporter be denied access to exhibits in a drug trafficking trial (U.S. v. Peters, 754 F.2d 753 (7th Cir. 1985);
- A New Orleans area sheriff’s order that reporters for a particular newspaper be excluded from a media lists interviews, press releases and alerts. (Times-Picayune Publishing Corp. v. Lee, Case No. 88-1325 (Eastern Dist. Louisiana 1988)) 15 MLR 1713. Recently the U.S. Court of Appeals for the Fourth Circuit departed from this consensus by concluding that the governor of Maryland was within his rights to direct the agencies in his administration not to speak with, supply information to or return calls from two journalists for the Baltimore Sun, based on their alleged failure “to objectively report on any issue dealing with the . . . administration.” The journalists did not state an actionable case of First Amendment retaliation, the court concluded, since they failed to demonstrate that the blacklist was anything more than an extreme case of access selectivity that politicians and government officials commonly exercised, with no protest from the press. Moreover, the plaintiffs could not show they had been either “chilled” or seriously hobbled in their pursuit of news about the administration, the court said. None of the cases listed above—finding unconstitutional retaliation—was even mentioned in the opinion. Baltimore Sun Co. v. Ehrlich, 437 F.3d 410 (2006).
A California blacklisted reporter case not only recognizes the majority view concerning governmental retaliation but extends it to a public utility (which under state law must respect First Amendment rights to some extent the same as a government agency). Savage v. Pacific Gas and Electric Co., 21 Cal.App.4th 434 (1st Dist. 1993).
The reverse of retaliation, favoritism in providing access, is a political commonplace in terms of interviews, alerts, tips and leads, as the court in Baltimore Sun noted. But when it comes to providing access to public documents, favoritism is made unlawful under the California Public Records Act (see ________) and has also been applied to court records as a matter of prohibited First Amendment discrimination. The U.S. Court of Appeals for the First Circuit concluded that a judge violated the rights of other news organizations in providing a public television station with exclusive access to otherwise sealed records in a closely watched toxic torts case. Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986).