Baltimore Sun Co. v. Ehrlich

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THE BALTIMORE SUN COMPANY; 
DAVID NITKIN; MICHAEL OLESKER,
Plaintiffs-Appellants,
v.
ROBERT L. EHRLICH, JR., in his
official capacity as Governor of
Maryland; SHAREESE DELEAVER, in
her official capacity as Press
Secretary to the Governor of
Maryland; GREGORY MASSONI, in his
official capacity as Deputy Director
of Communications and Press
Secretary to the Governor of
Maryland,
Defendants-Appellees.  No. 05-1297
LEONARD J. KERPELMAN,
Movant,
and
THE WASHINGTON POST; THE NEW
YORK TIMES COMPANY; TIME INC.;
THE ASSOCIATED PRESS; E. W.
SCRIPPS COMPANY; ADVANCE
PUBLICATIONS, INCORPORATED; CABLE
NEWS NETWORK, LP, LLLP; THE
MARYLAND DELAWARE DISTRICT OF
COLUMBIA PRESS ASSOCIATION;

2 THE BALTIMORE SUN v. EHRLICH
AMERICAN SOCIETY OF NEWSPAPER 
EDITORS; NEWSPAPER ASSOCIATION OF
AMERICA; THE ASSOCIATION OF
CAPITOL REPORTERS AND EDITORS;
THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS; SOCIETY OF
PROFESSIONAL JOURNALISTS; THE 
NORTH CAROLINA PRESS ASSOCIATION;
THE SOUTH CAROLINA PRESS
ASSOCIATION; VIRGINIA PRESS
ASSOCIATION,
Amici Supporting Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(CA-04-3822-1-WDQ)
Argued: November 29, 2005
Decided: February 15, 2006
Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Luttig and Judge Traxler joined.
COUNSEL
ARGUED: Charles D. Tobin, HOLLAND & KNIGHT, Washington,
D.C., for Appellants. Margaret Ann Nolan, Assistant Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees. ON BRIEF: Judith F. Bonilla,
HOLLAND & KNIGHT, Washington, D.C.; Rachel E. Fugate, HOL-
THE BALTIMORE SUN v. EHRLICH 3
LAND & KNIGHT, Tampa, Florida, for Appellants. J. Joseph Cur-
ran, Jr., Attorney General of Maryland, Cynthia G. Peltzman,
Assistant Attorney General, William F. Brockman, Assistant Attorney
General, Baltimore, Maryland, for Appellees. Kevin T. Baine, Adam
L. Perlman, Zoe C. Scharff, WILLIAMS & CONNOLLY, L.L.P.,
Washington, D.C., for Amici Supporting Appellants.
OPINION
NIEMEYER, Circuit Judge:
The Press Office of Maryland Governor Robert L. Ehrlich, Jr.
issued the following directive on November 18, 2004:
Effective immediately, no one in the Executive Department
or Agencies is to speak with [Baltimore Sun reporter] David
Nitkin or [Baltimore Sun columnist] Michael Olesker until
further notice. Do not return calls or comply with any
requests. The Governor’s Press Office feels that currently
both are failing to objectively report on any issue dealing
with the Ehrlich-Steele Administration. Please relay this
information to your respective department heads.
The directive was authored by Deputy Director of Communications
Gregory Massoni and disseminated to "Public Information Offices
and Executive Department" by Press Secretary Shareese DeLeaver.
The Baltimore Sun Company (publisher of The Sun newspaper),
Baltimore Sun reporter Nitkin, and Baltimore Sun columnist Olesker
(collectively referred to as "The Sun") commenced this action in
December 2004 against Ehrlich, Massoni, and DeLeaver (collectively,
the "Governor"), seeking preliminary and permanent injunctions
against enforcement of the directive. In its claim, brought under 42
U.S.C. § 1983, The Sun alleges that the Governor’s directive uncon-
stitutionally retaliated against it for exercising its First Amendment
speech and press rights.
The district court denied The Sun’s motion for a preliminary
injunction and granted the Governor’s motion to dismiss the com-
4 THE BALTIMORE SUN v. EHRLICH
plaint for failure to state a claim upon which relief can be granted. For
the reasons that follow, we affirm.
I
The Sun is Maryland’s largest newspaper with more than one mil-
lion readers each week. David Nitkin, a reporter for the Baltimore
Sun Company, was the State House Bureau Chief, and Michael
Olesker was a columnist for the Baltimore Sun Company, who wrote
a weekly opinion column.
These plaintiffs allege in their complaint that the Governor issued
his November 18, 2004 directive "for the express purpose of punish-
ing and retaliating against The Sun for the exercise of its First
Amendment rights." They also allege that the directive "was intended
to have and has had an impermissible chilling effect on The Sun’s
right to free expression."
In support of The Sun’s motion for a preliminary injunction, Nitkin
testified by affidavit about the effect that the Governor’s directive had
on him. He stated that on November 22, 2004, he called the Gover-
nor’s Press Secretary, Henry Fawell, to seek comment on statements
made by legislators calling for a constitutional amendment to give
lawmakers a greater say in selling state-owned land. Fawell’s
response was that "the ban is still in effect." Nitkin also stated that on
the same day he left a message for Budget Secretary James DiPaula
and that DiPaula’s secretary informed him that Nitkin would have to
speak to the Governor’s Press Office. Nitkin stated that on November
23, 2004, he called Anne Hubbard, a spokeswoman for the Depart-
ment of General Services, inquiring about a contract between a pri-
vate consulting firm and the Department of General Services, and
Hubbard replied, "David, I can’t talk to you." Nitkin related that "nu-
merous [other] state government representatives and employees also
have not returned my telephone calls." And in a second affidavit, Nit-
kin stated that he was excluded from a "press briefing" conducted in
the Governor’s conference room on December 30, 2004, and that he
was not invited to one on January 4, 2005. He acknowledged that
other reporters from The Sun attended both briefings.
On the same day that the Governor’s directive was issued, Nitkin
e-mailed the Governor’s Press Office to learn if the directive applied
THE BALTIMORE SUN v. EHRLICH 5
to his requests for information made pursuant to Maryland’s Public
Information Act. The Press Office responded to Nitkin, advising him
that executive officials would continue to answer those requests "as
legally required."
Finally, invitations were extended to Nitkin for public press confer-
ences, and he attended three of them during the two months following
the issuance of the directive. He also continued to receive public press
releases.
In his affidavit in support of The Sun’s motion for preliminary
injunction, Olesker testified that "since the ban was enacted, several
state government representatives and employees have not returned my
telephone calls." He stated that on November 29, 2004, he made three
telephone calls to the Governor’s Press Office that were not returned.
The Baltimore Sun Company itself has apparently not been denied
any access by the directive except insofar as Nitkin and Olesker have
been denied access. Other reporters for The Sun have had their phone
messages and e-mails returned, and they attended and reported on
both press briefings from which Nitkin was excluded or not invited.
In affidavits filed in opposition to The Sun’s motion for a prelimi-
nary injunction, Massoni and DeLeaver explained the reach of the
Governor’s directive. Massoni testified that both before the directive
and after it, the Governor interacted with members of the media in a
variety of ways, including "press conferences, press briefings, and
exclusive interviews which may be limited in scope, participants, or
forum." He observed that these practices were "consistent with well-
established custom within the broadcast industry, and have not
changed during this administration, except to the extent that Mr. Nit-
kin and Mr. Olesker are not granted the special access they once
enjoyed." He further testified,
Based on my years of experience in the broadcast industry,
it is common practice for public officials to determine to
whom they will speak, to speak to one or a selected number
of reporters and to decide in what forum the information
will be disclosed. Based on my experience, it is not uncom-
6 THE BALTIMORE SUN v. EHRLICH
mon for a public official to refuse to provide information, or
to limit access to sources of information to a reporter.
DeLeaver testified by affidavit that the Governor determines
whether to hold a public press conference or a press briefing of a lim-
ited number of reporters. She explained that public press conferences
were held in the Governor’s reception room, which has a capacity for
80 persons, and the media could request to be included on the e-mail
notification list. Because Nitkin had requested to be on the notifica-
tion list, he was notified of and invited to public press conferences.
Olesker never requested to be on the notification list. She stated that
press briefings were held in the Governor’s conference room, a pri-
vate area "protected by a guard and a door with keypad access" and
with the capacity to hold 10 to 12 people. The persons invited to press
briefings were called by telephone or invited in person.
The Sun has not maintained — and so confirmed at oral argument
— that the Governor’s directive actually chilled its reporting on state
government matters. The Governor pointed out that during the eight
weeks before the directive, Nitkin wrote 45 articles related to state
government and Olesker 1, and during the eight weeks after the direc-
tive, Nitkin wrote 43 and Olesker 1.
The Sun commenced this action on December 3, 2004, against
Governor Ehrlich, Massoni, and DeLeaver in their official capacities,
alleging unconstitutional retaliation and seeking preliminary and per-
manent injunctions barring the Governor from enforcing the Novem-
ber 18, 2004 directive. The district court entered an order on February
14, 2005, denying The Sun’s motion for a preliminary injunction and
granting the Governor’s motion under Federal Rule of Civil Proce-
dure 12(b)(6) to dismiss the complaint for failure to state a claim upon
which relief can be granted. Baltimore Sun Co. v. Ehrlich, 356 F.
Supp. 2d 577, 578 (D. Md. 2005). In its decision, the court stated that
"because . . . The Sun seeks the declaration of a constitutional right
that neither the Supreme Court nor 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." Id. at 582. The
district court relied on the same reasoning to deny The Sun’s motion
for a preliminary injunction. Id.THE BALTIMORE SUN v. EHRLICH 7
This appeal followed.
II
Because the district court’s order dismissing The Sun’s complaint
under Federal Rule of Civil Procedure 12(b)(6) and its order denying
The Sun’s motion for a preliminary injunction are based on the single
legal determination that The Sun has failed to state a claim for retalia-
tion upon which relief can be granted, we review that legal determina-
tion de novo. See Carandola, Ltd. v. Bason, 303 F.3d 507, 511 (4th
Cir. 2002) (holding that review of legal issues determined in deciding
a motion for preliminary injunction is de novo); Eastern Shore Mkts.,
Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000)
(holding that review of order granting motion to dismiss under Rule
12(b)(6) is de novo).
The Sun contends that the district court erred in straying from the
issue presented by the motions and that the Governor’s brief contin-
ues its "effort to mislead this Court" about the case. The Sun asks us
to decide: "Did [The Sun] state a cause of action by alleging that a
public official retaliated and discriminated against [it] because he did
not like [its] point of view"? It argues that the allegation in its com-
plaint "clearly satisfied [the Fourth Circuit’s] standards for retaliation
claims." Thus, we address the single issue whether the issuance of the
Governor’s November 18, 2004 directive in response to The Sun’s
exercise of its First Amendment rights gives rise to an actionable
claim for retaliation under the First and Fourteenth Amendments and
42 U.S.C. § 1983.
Because government retaliation tends to chill an individual’s exer-
cise of his First Amendment rights, public officials may not, as a gen-
eral rule, respond to an individual’s protected activity with conduct
or speech even though that conduct or speech would otherwise be a
lawful exercise of public authority. Bd. of County Comm’rs v.
Umbehr, 518 U.S. 668, 674 (1996); Suarez Corp. Indus. v. McGraw,
202 F.3d 676, 685 (4th Cir. 2000); see also Perry v. Sindermann, 408
U.S. 593, 597 (1972) ("[I]f the government could deny a benefit to
a person because of his constitutionally protected speech or associa-
tions, his exercise of those freedoms would in effect be penalized and
inhibited"). A retaliation claim under 42 U.S.C. § 1983 must establish
8 THE BALTIMORE SUN v. EHRLICH
that the government responded to the plaintiff’s constitutionally pro-
tected activity with conduct or speech that would chill or adversely
affect his protected activity. See Constantine v. Rectors and Visitors
of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005); ACLU v.
Wicomico County, 999 F.2d 780, 785 (4th Cir. 1993). The determina-
tion of whether government conduct or speech has a chilling effect or
an adverse impact is an objective one — we determine whether a sim-
ilarly situated person of "ordinary firmness" reasonably would be
chilled by the government conduct in light of the circumstances pre-
sented in the particular case. See Constantine, 411 F.3d at 500;
Wicomico County, 999 F.2d at 786; see also Thaddeus-X v. Blatter,
175 F.3d 378, 398 (6th Cir. 1999) (tailoring adverse impact analysis
to specific circumstances presented). Because our analysis of the
adverse impact is objective, it can be resolved as a matter of law.
"Not every [government] restriction," however, "is sufficient to
chill the exercise of First Amendment rights, nor is every restriction
actionable, even if retaliatory." DiMeglio v. Haines, 45 F.3d 790, 806
(4th Cir. 1995). Illustrating the observation that "not every [govern-
ment] restriction is sufficient to chill the exercise of First Amendment
rights," we have recognized a distinction between an adverse impact
that is actionable, on the one hand, and a de minimis inconvenience,
on the other. "[A] plaintiff seeking to recover for retaliation must
show that the defendant’s conduct resulted in something more than a
‘de minimis inconvenience’ to her exercise of First Amendment
rights." Constantine, 411 F.3d at 500 (citation omitted). Thus, in
Wicomico County, we held that a prison’s "decision to withdraw from
its special arrangement [permitting an ACLU paralegal to meet with
prisoners in private] . . . may have inconvenienced Appellees, but it
did not chill, impair, or deny their exercise of First Amendment
rights" because the paralegal was still "free to visit with inmates in
secure, non-contact meeting rooms," which was "all that [the prison]
provide[d] to any paralegal or other non-professional visitor." 999
F.2d at 786.
In a proximate vein, the Supreme Court has condoned limiting
retaliation liability when the challenged government action, whether
conduct or speech, is so pervasive, mundane, and universal in govern-
ment operations that allowing a plaintiff to proceed on his retaliation
claim would "plant the seed of a constitutional case" in "virtually
THE BALTIMORE SUN v. EHRLICH 9
every" interchange. See Connick v. Myers, 461 U.S. 138, 148-49
(1983); see also id. at 143 (holding that, in the government employ-
ment context, public employers can reprimand or punish employees
for their speech when that speech does not touch on matters of public
concern); Kirby v. City of Elizabeth City, 388 F.3d 440, 448-49 (4th
Cir. 2004); cf. Umbehr, 518 U.S. at 675 (noting that retaliation "may
be justified [i.e., unactionable] when legitimate countervailing gov-
ernment interests are sufficiently strong"). Thus, the Connick Court
recognized that the retaliation cause of action must be administered
to balance governmental and private interests so as not to impose lia-
bility in everyday, run-of-the-mill encounters.
Illustrating the second DiMeglio observation that not "every restric-
tion [is] actionable, even if retaliatory," we have recognized that some
government actions, due to their nature, are not actionable even if
they satisfy all the generally articulated elements of a retaliation
claim. When the challenged government action is government speech,
there is no retaliation liability — even if the plaintiff can demonstrate
a substantial adverse impact — unless the government speech con-
cerns "private information about an individual" or unless it was
"threatening, coercive, or intimidating so as to intimate that punish-
ment, sanction, or adverse regulatory action will imminently follow."
Suarez, 202 F.3d at 689. Other courts, likewise, have held that there
is no retaliation when the government’s alleged retaliatory action was
government speech. See, e.g., Benningfield v. City of Houston, 157
F.3d 369, 376-77 (5th Cir. 1998); Harrington v. Harris, 118 F.3d 359,
366 (5th Cir. 1997); accord Kirby, 388 F.3d at 450 n.8 (leaving open
the question whether a government-employer’s "oral reprimand"
might be a sanction or adverse regulatory action sufficient to chill
future speech). This limitation on the retaliation cause of action based
on government speech is necessary to balance the government’s
speech interests with the plaintiff’s speech interests. Suarez, 202 F.3d
at 688-89.
In this case, the Governor does not dispute that Nitkin and Olesker
engaged in constitutionally protected speech and that he issued the
November 18, 2004 directive in response to their speech. The direc-
tive itself states that the Governor and his Press Office believed that
Nitkin and Olesker had failed to be objective in their reporting. The
issues not conceded by the Governor center on the remaining ele-
10 THE BALTIMORE SUN v. EHRLICH
ments of a retaliation claim, requiring us to determine in the context
of this case (1) whether making issuance of the directive actionable
would tend to constitutionalize virtually every day-to-day interchange
between the press and the Governor; (2) whether the directive
effected a substantial adverse impact or chill on The Sun’s exercise
of its First Amendment rights or simply created a de minimis inconve-
nience; and (3) whether the Governor’s response was protected gov-
ernment speech.
On these issues, The Sun contends that the directive was not an
everyday interchange but specifically targeted two reporters, denying
them rights given to all other reporters. The Sun argues that Nitkin
and Olesker are relatively and significantly worse off than other
reporters because executive officials no longer can comment to them.
Although the reporters would not concede at oral argument that their
speech has actually been chilled, they argue that as a matter of law
the speech of a reasonable reporter of ordinary firmness would be
chilled by being subjected to a no-comment policy that does not apply
to every reporter. In addition, The Sun contends that the Governor
intended his order to coerce Nitkin and Olesker to conform their
speech to his understanding of objective reporting. Thus, The Sun
argues that from the moment the order issued and regardless of its
effectiveness in foreclosing their access to official sources of informa-
tion, a reasonable reporter’s speech would be chilled by the Gover-
nor’s manifest and expressed purpose.
III
It is common knowledge — and the parties so concede — that
reporting is highly competitive, and reporters cultivate access —
sometimes exclusive access — to sources, including government offi-
cials. Public officials routinely select among reporters when granting
interviews or providing access to nonpublic information. They evalu-
ate reporters and choose to communicate with those who they believe
will deliver their desired messages to the public. By giving one
reporter or a small group of reporters information or access, the offi-
cial simultaneously makes other reporters, who do not receive discre-
tionary access, worse off. These other reporters are sometimes denied
access because an official believes them to be unobjective. See Snyder
v. Ringgold, 133 F.3d 917, 1998 WL 13528 *1, *4 (4th Cir. 1998)
THE BALTIMORE SUN v. EHRLICH 11
(unpublished opinion) (noting the "common and widely accepted
practice among politicians of granting an exclusive interview to a par-
ticular reporter" and "the equally widespread practice of public offi-
cials 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").
At oral argument, The Sun conceded that a public official’s selec-
tive preferential communication to his favorite reporter or reporters
would not give the much larger class of unrewarded reporters retalia-
tion claims. This concession acknowledges that government officials
frequently and without liability evaluate reporters and reward them
with advantages of access — i.e., that government officials regularly
subject all reporters to some form of differential treatment based on
whether they approve of the reporters’ expression. The Sun nonethe-
less claims that this concession is not incompatible with affording it
the relief requested in this case of enjoining the enforcement of the
Governor’s November 18, 2004 directive.
We, however, find the scenario conceded by The Sun and the facts
of this case to be materially indistinguishable. Both the hypothetical
and this case are merely two different ways of describing the same
pervasive and everyday relationship between government officials
and the press, and retaliation liability cannot hinge on the conclusory
statements with which a plaintiff frames a complaint about a single
example of how that relationship has played out. Both the hypotheti-
cal and the facts of this case present instances in which government
officials disadvantage some reporters because of their reporting and
simultaneously advantage others by granting them unequal access to
nonpublic information. Thus, whether the disfavored reporters num-
ber two or two million, they are still denied access to discretionarily
afforded information on account of their reporting. The facts of this
case and the hypothetical stand or fall together, so The Sun’s conces-
sion forecloses its requested relief.
That The Sun concluded it had to make this unavailing concession
also demonstrates that the challenged government response is a perva-
sive feature of journalism and of journalists’ interaction with govern-
ment. Having access to relatively less information than other reporters
on account of one’s reporting is so commonplace that to allow The
12 THE BALTIMORE SUN v. EHRLICH
Sun to proceed on its retaliation claim addressing that condition
would "plant the seed of a constitutional case" in "virtually every"
interchange between public official and press. See Connick v. Myers,
461 U.S. 138, 149 (1983). Accordingly, we conclude that, in the cir-
cumstances of this case, no actionable retaliation claim arises when
a government official denies a reporter access to discretionarily
afforded information or refuses to answer questions.
IV
For reasons similar in nature to those supporting the conclusion
that the pervasiveness of the Governor’s conduct in the daily, mun-
dane operations of government — i.e., giving preferential access to
some reporters and refusing to give access to or answer the questions
of other reporters — generally renders the conduct not actionable
under Connick, we also conclude that the adverse impact of such con-
duct is objectively de minimis. It would be inconsistent with the jour-
nalist’s accepted role in the "rough and tumble" political arena to
accept that a reporter of ordinary firmness can be chilled by a politi-
cian’s refusal to comment or answer questions on account of the
reporter’s previous reporting. Cf. Eaton v. Meneley, 379 F.3d 949,
956 (10th Cir. 2004) ("Our case law recognizes that the nature of
political debate is rough and tumble. Plaintiffs in public debates are
expected to cure most misperceptions about themselves through their
own speech and debate").
Moreover, the evidence in this case shows that Nitkin and Olesker
in particular have not been chilled from expressing themselves;1 they
continue to write as frequently as before the issuance of the Gover-
nor’s directive, despite the inconvenience of relying on and scrutiniz-
ing other sources to garner comments from the Maryland executive
department. We of course recognize that we must measure the
adverse impact against an objectively reasonable plaintiff. Nonethe-
1
At oral argument, the reporters’ counsel, when pressed by the court,
would not concede that Nitkin and Olesker have been chilled in this case,
claiming that they needed "discovery" to find out if their clients have
been chilled. But such a claim makes no more sense than claiming that
a personal injury plaintiff needed discovery to find out if he had been
injured when the defendant crashed into his car.
THE BALTIMORE SUN v. EHRLICH 13
less, "the plaintiff’s actual response to the retaliatory conduct pro-
vides some evidence of the tendency of that conduct to chill First
Amendment activity." Constantine, 411 F.3d at 500. Nitkin’s and
Olesker’s actual response attests to the de minimis impact that the
Governor’s directive would have on reporters of ordinary firmness.
As typical reporters, they are used to currying their sources’ favors,
and even though they may have been foreclosed from directly access-
ing sources when the sources became unhappy with how their infor-
mation was being reported, they have not been chilled to any
substantial degree in their reporting, as they have continued to write
stories for The Sun, to comment, to criticize, and otherwise to speak
with the full protection of the First Amendment.
The Sun argues at some length in its brief that it is not seeking to
change the competition for access, in which it is daily favored and
disfavored by government officials’ decisions to give access to a par-
ticular reporter. It accepts that competition and its daily successes and
failures as inherent in the journalistic terrain. In the words of its brief,
it seeks only and "simply" to "lift the retaliatory ban" — the Novem-
ber 18, 2004 directive. But the November 18, 2004 directive, which
is no more than a formalization of the Governor’s decision not to give
Nitkin and Olesker access, has no greater impact than would the same
decision made daily by the Governor on an ad hoc basis.
Notwithstanding The Sun’s acknowledgment that daily successes
and failures in obtaining access have an insignificant effect on report-
ing, it now attempts to recharacterize the failures of Nitkin and
Olesker to obtain access as the product of an unconstitutional retalia-
tion:
On behalf of the public, journalists strive to obtain informa-
tion from knowledgeable sources and observe events
directly. . . . Direct interviews of government sources permit
journalists to probe for insight, challenge official statements
and press releases, and uncover previously-undisclosed
information. Any news organization or journalist sentenced
— as The Sun’s journalists were — to reliance upon second-
hand sources, official releases and carefully-spun responses
at press conferences would be greatly disadvantaged in its
efforts to report the news. Fairly read in the light most
14 THE BALTIMORE SUN v. EHRLICH
favorable to [The Sun], the Complaint therefore alleges a
chilling effect on similarly-situated persons ‘of ordinary
firmness.’
While Nitkin and Olesker might now be disfavored, they are no more
disfavored than the many reporters without access to the Governor.
We cannot accept that the Governor’s directive — which, to be
sure, has increased the public’s awareness of the competition for
access — created a chilling effect any different from or greater than
that experienced by The Sun and by all reporters in their everyday
journalistic activities. Accordingly, we conclude that in the ongoing
intercourse of government and press, a reporter endures only 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.
V
The Sun contends alternatively that the Governor openly expressed
a malicious intent to chill its speech and that the Governor’s speech
expressing such intent would alter a reasonable reporter’s speech. In
its complaint, The Sun alleges that the Governor specifically intended
to chill Nitkin and Olesker, for he later invoked a "combat metaphor,"
describing publicly his directive as "the only arrow in [his] quiver."
As The Sun now argues:
The Governor has boasted of his effort to chill Mr. Nitkin’s
and Mr. Olesker’s exercise of free speech through the use of
"an arrow" in the Governor’s "quiver." As a result, other
journalists or members of the public now must worry that
they, too, may be banned from receiving basic government
information if they express views divergent from official
executive policy.
Of course, a public official’s malicious intent, taken alone, cannot
amount to a retaliatory response. The plaintiff in a retaliation case
must challenge adverse conduct or speech. See Constantine, 411 F.3d
THE BALTIMORE SUN v. EHRLICH 15
at 500 (repeating that retaliation claims challenge government "con-
duct"). Thus, we understand The Sun to be arguing that it has been
adversely affected by the Governor’s speech insofar as his speech was
hostile to and in open disagreement with The Sun’s reporting, and,
therefore, this expressed hostility — i.e. the hostile intent inferred
from his explanation for the directive — would have a chilling effect
on a reporter of ordinary firmness.
As speech, however, the Governor’s comments were protected by
the First Amendment, as were the reporters’ statements about which
the Governor was commenting. Suarez, 202 F.3d at 687. Although the
speech of both the Governor and reporter are protected, the Gover-
nor’s speech could still have given rise to a retaliation claim if it con-
cerned private information about the reporter or any individual or was
"threatening, coercive, or intimidating so as to intimate that punish-
ment, sanction, or adverse regulatory action [would] imminently fol-
low." Suarez, 202 F.3d at 689 (emphasis added).
In this case, however, we conclude that the Governor’s expressed
pique, criticism, and explanation of his directive as the "only arrow"
do not intimate that Nitkin or Olesker would imminently be subjected
to punishment, sanction, or adverse regulatory action. Indeed, the
Governor’s explanation tended to suggest that his only arrow was to
deny discretionary access and refuse to answer questions and that no
further action would be taken against Nitkin and Olesker. And, of
course, it is not maintained that the Governor’s speech divulged pri-
vate information.
Apart from the arrow-and-quiver explanation, the Governor’s
directive itself not only indicated his objection to The Sun’s reporting
and his intent not to talk to Nitkin and Olesker, but it also directed
his subordinates in their official conduct and speech. As speech
reflecting the Governor’s own views and intent, the directive is not
actionable because it is only the Governor’s opinion and because he
himself need not talk to reporters. As an internal directive, it extended
only to the official conduct and speech of others in the executive branch.2
2
The extent to which the Governor’s order chills the employees’ con-
stitutionally permissible speech, see Connick v. Myers, 461 U.S. 138(1983) and Pickering v. Bd. of Ed., 391 U.S. 563 (1968), is not before
us in this case. The Sun has expressly disclaimed that it represents the
employees’ third-party interests or that it is asserting third-party claims
for these employees.
16 THE BALTIMORE SUN v. EHRLICH
Because it neither communicated a threat to The Sun, nor divulged
private information in its function as an internal directive, it is not
actionable. See Suarez, 202 F.3d at 689.
For all of the reasons given, the judgment of the district court is
AFFIRMED.