BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. In October, the Baltimore Sun wrote a series of articles about Maryland Governor Robert Erlich and a supposed sweetheart deal selling state land to politically connected private developers. A few weeks later, a Sun columnist wrote that the governor's communications director was having trouble, quote, "keeping a straight face" while denying charges that Erlich was using taxpayer money for self-promotion via state tourism ads. For Erlich, that was the final straw in a long war of words with the two Sun writers, and so, on November 16th, he announced that not only would he no longer speak to them, but no one in the Maryland state government could either. The Sun has filed a First Amendment lawsuit, and both sides have been arguing their cases in the court of public opinion. Abraham Dash is a professor of law at the University of Maryland Law School, and he's been looking into the legalities of this case. Professor Dash, welcome to the show.
ABRAHAM DASH: Thank you.
BOB GARFIELD: Do you think the Baltimore Sun has a case under the First Amendment?
ABRAHAM DASH: I do not. The First Amendment protects the press. No one can stop them, certainly not the government, from printing anything that they have, any information. But there is no, quote, "right to know." In other words, there is no First Amendment right where the press can get information from the government. A government can, if they want to, get rid of all their public information officers and not reveal any information.
BOB GARFIELD: Now the Sun, as I understand, is claiming that the governor of Maryland, by refusing access to state officials to two reporters alone is in essence dictating who may have access to news about the state. That doesn't change the legal situation at all?
ABRAHAM DASH: If they, as an individual media, is denied access, but others, like the Washington Post were given access to the governor, they are being denied something which arguably --arguably -- under the 5th and 14th Amendment would be a denial of some quasi-property right without due process of law. That's the only kind of argument I could see, and how valid that would be I, I honestly don't know, because the high officials of federal and state governments many times will grant a personal interview with one correspondent or reporter and deny it to another.
BOB GARFIELD: Now, they don't call it the "fourth estate" for nothing. The Framers originally understood the press as a sort of unofficial check and balance against all three other branches of government.
ABRAHAM DASH: As you know, most of the Founding Fathers detested the press. Jefferson [LAUGHS] in particular. But at the same time, they were very strong, under the First Amendment, to permit a freedom of the press, meaning that the press could write whatever they wanted, even if it was, quote, "scurrilous," as Jefferson would sometimes call it.
BOB GARFIELD: This is not the first time that either a scurrilous press has unfairly attacked a government official or a scurrilous government official has tried to find off a perfectly righteous press. What are the legal precedents for cases like this?
ABRAHAM DASH: The only cases that have ever come up usually come up under Freedom of Information, which permit any citizen to obtain certain information from the government. This was a statute passed by Congress back in the '70s because there was such a denial of information from, in this case, the federal government, where sometimes you could not even find out the address of a regional office of a federal agency. So, most of your case law deals with a newspaper or even a TV correspondent seeking certain information from the government under the statute. But the problem is, you've got to know what you're asking for. So if you know that the state has a document in their records, you can then say to them, I want that record. But it's a lot different from, of course, what they're losing right now, which is having access. A reporter's working on a story, and he wants to talk to someone in the agency -- is this true or that's true -- before he writes a story.
BOB GARFIELD: Well, if there is no legal mandate for governments to dispense information to particular reporters or news organizations in general, why shouldn't Maryland and every other state in the union, and by the way the United States government, simply shut down all of its public information mechanisms, dismiss all of the public information officers, stop holding news conferences and simply just go about its business without telling the public anything?
ABRAHAM DASH: Well, frankly, since we are a democracy, it would be politically insane for any government - state or federal - to close down completely on public information, because they're going to be affected by the next election. Because the press won't let 'em get away with it. They're going to start digging, and they're going to find their anonymous sources, so they will begin producing stories that will be very embarrassing to that government. So, part of the beauty of the First Amendment is it takes care of that problem. But there's never been a constitutional demand that the government tell and give information. In fact, the only time the Constitution even talks about giving information is the State of the Union message of the president.
BOB GARFIELD: Professor Dash, thank you very much.
ABRAHAM DASH: Oh, you're welcome.
BOB GARFIELD: Abraham Dash is a professor of law at the University of Maryland Law School. He spoke to us from Baltimore.