Snyder v. Ringgold ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TERRIE SNYDER,
Plaintiff-Appellee,
v.
SAMUEL J. RINGGOLD,
Defendant-Appellant, No. 97-1358
and
WBAL DIVISION, THE HEARST
CORPORATION,
Party in Interest.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frank A. Kaufman, Senior District Judge.
(CA-95-3197-K)
Argued: December 4, 1997
Decided: January 15, 1998
Before LUTTIG and WILLIAMS, Circuit Judges, and
MERHIGE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Reversed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Robert Charles Verderaime, VERDERAIME &
DUBOIS, P.A., Baltimore, Maryland, for Appellant. Jeffrey William
Bredeck, ECCLESTON & WOLF, Baltimore, Maryland, for Appel-
lee. ON BRIEF: Thomas J. Althauser, ECCLESTON & WOLF, Bal-
timore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Plaintiff-appellee, Terrie Snyder, filed a § 1983 claim seeking dam-
ages for alleged violations of her First and Fourteenth Amendment
rights by the defendant-appellant, Samuel Ringgold. Plaintiff is a
journalist who works in the print and television media. Defendant is
the Director of the Public Affairs Division of the Baltimore City
Police Department, and is responsible for the dissemination of infor-
mation from the Department to the media. Plaintiff alleges that the
defendant violated her constitutional rights by denying her access to
Department information on the same terms that it was made available
to other members of the news media. See J.A. at 7-15.
In 1992, Snyder aired a story for WBAL-TV that alleged that the
Department might have attempted to cover up a prominent politi-
cian's connection to a young murder victim. See J.A. at 35. According
to Snyder's affidavit, Ringgold later told Snyder that he believed she
had "set him up" for that story, and Snyder then began to experience
difficulties in obtaining information from Ringgold. J.A. at 36.
In 1993, the Department instituted a new policy requiring that all
journalists obtain all information regarding homicides from a Public
Information Officer (PIO) of the Department, rather than directly
from homicide detectives. A PIO (Ringgold or one of his staff) would
be "on call" to be paged on the weekends to provide information.
According to Snyder, after this policy had been in place for several
months, Ringgold advised Snyder and her then employer, WBAL-TV,
2
that he was tired of responding to Snyder's weekend pages. Snyder
then wrote an article in the City Paper criticizing the new policy
regarding the dissemination of information to journalists as an attempt
to silence homicide detectives' complaints about Department policy.
In that article, Snyder attributed a statement to Ringgold, stated that
he claimed it was an off-the-record comment to another reporter
(apparently at the assignment desk of WBAL-TV), and then alleged
that the other reporter had confirmed that the comment was not, in
fact, off-the-record. See J.A. at 16.
Thereafter, on May 31, 1994, Ringgold wrote a letter to the news
director for WBAL-TV, stating that the situation regarding Snyder
had "become intolerable." He expressed his"outrage[] that an off the
record comment" he had made to one of WBAL's assignment editors
"made its way into a City Paper article written by Terrie Snyder," and
stated that, because of the incident, he would "never go off the record
with people on [WBAL's] assignment desk" and had ordered his staff
to do likewise. J.A. at 14. Ringgold also asserted in the letter that
Snyder was continuing to abuse the paging system by paging PIOs
needlessly on weekends. See J.A. at 15. The letter also stated that
"[a]fter reading the City Paper article, I am of the opinion that Ms.
Snyder has developed friendships in the department that prevent her
from being an objective journalist." J.A. at 14-15. Finally, Ringgold
complained that Snyder had falsely represented to WBAL that the
Department had not provided her with all available information about
a pending homicide case. See J.A. at 14.
Following the May 31, 1994, letter, Ringgold refused to allow Sny-
der to participate with a television crew from WBFF-TV in filming
interviews with Department personnel in the Department's headquar-
ters about the homicide division. Ringgold also contacted the editor
of the City Paper and informed her that he would no longer talk to
Snyder about any story. Unlike other journalists, Snyder was directed
to submit all requests for information from the Department in writing.
See J.A. at 7-9, 16c. Snyder alleges that Ringgold's motivation for
these actions was his displeasure with her stories about the Depart-
ment. Ringgold alleges that Snyder was singled out for access restric-
tions because she violated a promise of confidentiality by attributing
"off-the-record" information, because she had repeatedly abused the
Department's public information system by paging officers unneces-
3
sarily on weekends, and because she had misrepresented the Depart-
ment's actions to her employer. See Appellant's Brief at 6.
Based on the foregoing events, Snyder brought this§ 1983 suit,
alleging that Ringgold violated the First and Fourteenth Amendments
by placing restrictions on her access to Department information. Sny-
der then moved for partial summary judgment with respect to liability
on her § 1983 claim. See J.A. at 17-19. Ringgold opposed Snyder's
motion and filed a cross-motion for summary judgment. See J.A. 38-
46. On January 6, 1997, the court denied Ringgold's motion for sum-
mary judgment and granted Snyder's motion for summary judgment
on liability. See J.A. at 84. Even though the press has no general First
Amendment right of access to information about police investiga-
tions, the district court held that, absent a "compelling governmental
interest," once a government agency or official"makes such informa-
tion generally available to the news media, such agency and/or offi-
cial may not treat members of the news media, including the reporters
working for such news organizations, unequally." J.A. at 85. The
court found that "[t]he record establishes that the defendant [restricted
plaintiff's access] because the defendant took issue with the substance
and style of the plaintiff's reporting with regard to the [Department],"
J.A. at 84, and therefore that defendant had violated plaintiff's First
Amendment rights.
On January 28, 1997, the defendant, with leave of court, filed a
supplemental motion for summary judgment, asserting the defense of
qualified immunity. See J.A. at 56-58. On February 11, 1997, the
court denied this motion, holding -- without analysis -- that defen-
dant was not entitled to qualified immunity on plaintiff's claim. See
J.A. at 88. Defendant appeals the district court's denial of qualified
immunity.
We hold that the district court erred in denying defendant qualified
immunity. Government officials are not liable for damages "as long
as their actions could reasonably have been thought consistent with
the rights they are alleged to have violated." Anderson v. Creighton,
483 U.S. 635, 638 (1987). Thus, qualified immunity"shields officials
``insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
4
known.'" DiMeglio v. Haines, 45 F.3d 790, 794 (4th Cir. 1985) (quot-
ing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
A right is "clearly established" for qualified immunity purposes if
it has been "specifically adjudicated," Pritchett v. Alford, 973 F.2d
307, 314 (4th Cir. 1992), that is, if it has been"authoritatively decided
by the Supreme Court, the appropriate United States Court of
Appeals, or the highest court of the state" in which the officers acted.
Wallace v. King, 626 F.2d 1157, 1161 (4th Cir. 1980); see also
Jenkins v. Tallaedega City Board of Education, 115 F.3d 821, 826 n.4
(11th Cir. 1997) ("[L]aw can be "clearly established" for qualified
immunity purposes [in the Eleventh Circuit] only by decisions of the
U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the high-
est court of the state where the case arose."). Additionally, a right may
be clearly established even though it has not been specifically adjudi-
cated when it is "manifestly included within more general applica-
tions of the core constitutional principle invoked." Pritchett, 973 F.3d
at 314.
The right for which plaintiff contends has not been clearly estab-
lished by specific adjudication. No Supreme Court or Fourth Circuit
case has held that reporters have a constitutional right of equal or non-
discriminatory access to government information that need not other-
wise be made available to the public. In fact, the district court opinion
below relied only on three, relatively old federal district court deci-
sions and one state court of appeals decision in support of its holding
that Ringgold had violated Snyder's First Amendment rights. See J.A.
at 85-86 (citing Borreca v. Fasi, 369 F. Supp. 906, 909 (D. Haw.
1974); Quad City Community News Service, Inc. v. Javens, 334 F.
Supp. 8 (S.D. Iowa 1971); Westinghouse Broadcasting, Inc. v.
Dukakis, 409 F. Supp. 895 (D. Mass. 1976); Southwestern Newspa-
pers Corp. v. Curtis, 584 S.W.2d 362 (Tex. Civ. App. 1979)).
On appeal, the plaintiff has cited cases from the First, Second, and
District of Columbia Circuit Courts of Appeals that consider issues
that she believes to be analogous to the issue in this case. See
Anderson v. Cryovac, Inc., 805 F.2d 1, 9 (1st Cir. 1986) (holding that
a district court could not provide access to certain discovery materials
to one newspaper and then deny access to competing newspapers);
American Broadcasting Companies v. Cuomo, 570 F.2d 1080, 1083
5
(2d Cir. 1977) (holding that New York political candidates could not
selectively exclude ABC from "public function[s]" -- the primary
election events -- while admitting other media representatives);
Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977) (holding that,
because the White House has established press facilities that are per-
ceived as being open to all bona fide Washington-based journalists,
access to those facilities may not be "denied arbitrarily or for less than
compelling reasons"). The plaintiff's resort to these out-of-circuit
cases merely underscores the lack of Fourth Circuit and Supreme
Court law establishing the right for which she contends. Indeed, the
fact that plaintiff is forced to rely on these cases-- the facts of which
differ markedly from Ringgold's limitations on the manner in which
Snyder could access Department information and his refusal to allow
her to participate in filming an exclusive report on Department prem-
ises -- demonstrates that there is little support for her contentions
even in the case law of other circuits.
Moreover, we are not persuaded that Ringgold's decisions to deal
with Snyder only in writing (rather than to speak to her directly) and
to prohibit her from participating in the filming of exclusive WBFF-
TV interviews with Department personnel violate any right that is
"manifestly included within more general applications of the core . . .
principle[s]" of the First Amendment. Pritchett, 973 F.2d at 314.
Plaintiff contends that the "right for a journalist to have equal access
to public information sources" and "to be treated the same as other
journalists," Appellee's Brief at 23-24, is inherent in the core guaran-
tees of the First Amendment.
The many weaknesses in plaintiff's position are readily apparent.
For example, the broad rule for which plaintiff argues would presum-
ably preclude the common and widely accepted practice among politi-
cians of granting an exclusive interview to a particular reporter.* And,
_________________________________________________________________
*Plaintiff's rule could not logically extend only to those officials who
are specifically designated by the government as the press or public rela-
tions agent for a department on the ground that the information they have
cannot be obtained elsewhere. Most public officials have information
that cannot be accessed through other sources. Indeed, reporters often
compete for the prized exclusive interviews precisely because the infor-
mation revealed in such interviews is not otherwise available.
6
it would preclude the equally widespread practice of public officials
declining to speak to reporters whom they view as untrustworthy
because the reporters have previously violated a promise of confiden-
tiality or otherwise distorted their comments. Additionally, even if the
right was somehow limited to situations in which access is provided
to a broad spectrum of reporters, the plaintiff's rule would still pre-
sumably preclude the White House's practice of allowing only certain
reporters to attend White House press conferences, even though space
constraints make it impractical to open up the conference to all media
organizations. That plaintiff's rule flies in the face of so much well
settled practice suggests, at least, that it is not clearly established.
Moreover, the right of "equal access" for which plaintiff argues
cannot be limited to members of the media without conferring a privi-
leged First Amendment status on the press, and the Supreme Court
has affirmed that the press does not enjoy special First Amendment
rights that exceed those of ordinary citizens. See Branzburg v. Hayes,
408 U.S. 665, 684-85 (1972) (noting that the First Amendment "does
not guarantee the press a constitutional right of special access to
information not available to the public generally"). Consequently,
plaintiff's asserted right would require that, in each and every circum-
stance where the government made news available, it would have to
give access to that information to everyone on equal terms. The broad
rule for which plaintiff contends thus appears untenable. In any event,
the contours of any such right would be difficult to delineate, and cer-
tainly cannot be discerned through a straightforward and obvious
application of existing First Amendment principles.
Plaintiff also argues that, even if a government agency can favor
one reporter over another for "legitimate" reasons, it cannot do so
because it likes one reporter's stories better than another's. Plaintiff
claims that this more specific right not to have her access to govern-
ment information sources restricted because of her viewpoint and the
content of her stories is an "obvious application" of the core First
Amendment principle prohibiting content and viewpoint discrimina-
tion. However, it is a large analytical leap from holding that govern-
ment may not regulate or prohibit private speech on the basis of
content or viewpoint to holding that government may not make
"content-based" distinctions between reporters in granting access to
government information. Indeed, the government can certainly con-
7
trol the content of its own speech in ways it could never regulate or
control the content of private speech. See, e.g. , Rust v. Sullivan, 500
U.S. 173 (1991). Arguably, by analogy, the government should be
able to choose to limit its audience in a way it could not choose to
limit the audience available to private speakers. In any event, it
should be apparent that the contours of any right that a reporter has
not to be discriminated against in her access to government informa-
tion based on the content of her prior stories are not "sufficiently
clear" that Ringgold -- or any other "reasonable official" -- would
have understood that simply restricting the manner in which Snyder
could receive Department information and refusing her exclusive
interviews on Department premises violated that right. Anderson, 483
U.S. at 640.
Accordingly, the judgment of the district court is
REVERSED.
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