Q: I uncovered an election-time irregularity in the office of the District Attorney. This news led to his assistant’s departure. Now, the DA refuses to provide public information on court cases that we can only get (and have gotten for 35 years) over the phone. I believe there is a statute somewhere that requires government officials to provide news to outlets on a non-discriminatory basis. The DA does give info to other news media here.
A: I am not aware of any statute that specifically addresses discrimination among news organizations by public officials. However, basic First Amendment principles would seem to apply here, and militate against the district attorney refusing to provide you with information regarding current court cases simply because he is upset about your news coverage that may have had a negative impact on his office, while the same information is made available to all other members of the media.
The court in Savage v. Pacific Gas & Electric Co., 21 Cal. App. 4th 434, 453 (1993), had this to say about discriminatory treatment among members of the press:
Thus, the courts have found violations of the First Amendment where a mayor excluded reporters for a particular newspaper from major press conferences to which the press generally was invited (Borreca v. Fasi, supra, 369 F.Supp. 906), where a district attorney required reporters for a disfavored newspaper to obtain advance appointments not required of other reporters (Southwestern Newspapers Corp. v. Curtis, supra, 584 S.W.2d 362), where a racetrack reporter was forbidden to carry a camera into paddock areas otherwise open to the press (Stevens v. New York Racing Ass’n., Inc., supra, 665 F.Supp. 164), and where a sheriff directed his staff not to respond to questions of reporters from the plaintiff newspaper unless they were submitted in writing. (Times-Picayune Publishing Corp. v. Lee, supra, 15 Med.L.Rptr. 1713.)
The frequently cited decision, Quad-City Community News Service, Inc. v. Jebens (S.D.Iowa 1971) 334 F.Supp. 8 analyzed discriminatory treatment of the press under both the First Amendment and the equal protection clause. City officials had denied reporters for an underground newspaper access to police files generally available to other reporters.
After finding that the action violated the First Amendment, the court addressed the equal protection issue: “No showing merely of a rational relationship to some colorable state interest suffices to justify a classification between media permitted access to the reports and others which are not so permitted. Any classification which serves to penalize or restrain the exercise of a First Amendment right, unless shown to be necessary to promote a compelling governmental interest is unconstitutional.” (Id. at p. 15.)
Accordingly, there might be an argument that the decision to treat your news organization differently than other news organizations violates both the First Amendment and the equal protection clause, though the legal analysis would depend on the particular facts of your situation.
Speaking from personal experience as a former reporter, I ran into this situation, too, while covering a state hospital. The public relations liaison decided she did not like questions posed to her by our newspaper, and wrote us a letter stating we would no longer be given access to the hospital or her office. I believe our editors spoke with her about this issue, she came to her senses, and once again allowed us back in. You may want to request a similar meeting with the DA to gently make him aware of your position.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.