Question
The city’s communication offices refuses to add us to their official media e-mail list, that sends information and notices about events the mayor will attend or news conferences.
The office also purposely refuses to answer our calls and e-mails, based on our legitimate news coverage.
What recourse do we have to at least compel them to add us to their news e-mail list?
Answer
This is a tricky issue. Once a government agency decides to release information or an official has chosen to speak to members of the media, it may be unconstitutional to exclude selected news organization or individual journalists from receiving the same information.
In addition, differences in the manner in which the information is provided may also be unconstitutional. Unconstitutional discriminatory treatment of the media can arise in many other situations.
For example, courts have found violations of the First Amendment and the Equal Protection clause where a mayor excluded a particular reporter from press conferences to which the public generally was invited (Borreca v. Fasi, 369 F. Supp. 906, 910-11 (D. Haw. 1974)), where a sheriff prevented department officials from releasing any information to reporters of a particular newspaper except in response to a written request (Times Picayune Publishing Corp. v. Lee, 15 med. L Rep. 1713, 1716-19 (E.D. La. 1988)), and where city officials denied reporters for a particular newspaper access to police files generally available to other reporters. Quad-City Community news Service, Inc. v. Hebens, 334 F. Supp. 8, 15 (S.D. Iowa 1971). In California, a court held that the City of Los Angeles, could not constitutionally give one television station the exclusive right to film an official ceremony and celebration commemorating the Mexican War from the stage at City Hall Plaza. Telemundo of Los Angeles v. United States District Court, 283 F. Supp. 2d 1095, 1104 (C.D. Cal. 2003).
The rule against discriminatory access only goes so far, however. In two recent cases – one in Ohio and other in Maryland – the media challenged policies forbidding public employees from speaking to certain reporters. In both instances, the media challenges were unsuccessful.
If you can obtain a copy of whatever criteria the agency uses for including entities on its e-mail list, that might help support an argument that the treatment is wrongful.
To the extent you can’t obtain such information – or learn whether it exists – because the agency refuses to communicate with you, you might consider seeking relevant documentation via a Public Records Act request.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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. No attorney-client relationship has been formed by way of this response.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.