Pushing for press access for bloggers 

Posted: 7:00 pm Sun, March 7, 2010
By Danny Jacobs
Daily Record Legal Affairs Writer

Jay Liner’s business card for The Baltimore Organ lists him as “Founder & Chief Protagonist” of the Web site. The Pikesville lawyer is a self-described boomer from the anti-Vietnam generation, a progressive who writes about “what piques his curiosity,” from the slots debate to Baltimore County politics to Viagra commercials.

But is he a journalist?

Gov. Martin O’Malley’s press office said no, denying him a State House press pass to cover the General Assembly session.

Liner says yes, and has filed a lawsuit to force the O’Malley administration to issue him a press pass. If he is successful, Liner would become only the second Internet-exclusive information source to have media credentials in Annapolis.

Liner has no desire to become a trailblazer in the blogosphere, but he acknowledges the lawsuit reflects how the Internet has forever changed the way people consume news.

“This is the modern delivery system,” he said. “Why should this be treated differently?”

It’s a question government officials, media lawyers and even reporters themselves struggle to answer.

“It’s the tough hypothetical you give to classes on a final to tell the good students from the bad ones,” said Mark Graber, a constitutional law and politics professor at the University of Maryland School of Law.

Serious intentions

Liner, formerly the Baltimore County Attorney, started his site around Labor Day 2008 and now averages 1,000 hits a week. In addition to his blog posts, he has posted interviews with former governors Marvin Mandel and Harry R. Hughes, as well as Rep. Frank Kratovil during his successful campaign two years ago for the Maryland’s 1st Congressional District.

Late last year, Liner approached his friend and state senator, James Brochin, with an idea. Liner wanted to interview Brochin in Annapolis throughout the session on whatever was news in the General Assembly and post the “uncensored, unfiltered” conversations on his Web site. Liner planned to ask other lawmakers to participate as well.

Liner, who does not have a journalism background, said he would have been in Annapolis fairly regularly.

“I certainly went into this with serious intentions,” he said. “I wasn’t going to impede the process. I would follow the directives. I wouldn’t have gone down there to disrupt the system.”

In December, Liner called the Department of General Services, which formally issues the press passes, and was told the governor’s press office decides who receives them. Liner said he called the governor’s press office but never received a reply.

He enlisted the help of Brochin’s office and, in January, soon after the session began, he learned from the senator’s aide that his request had been denied. Among the reasons given was that his site had “no original content regarding state government,” according to an e-mail from the aide.

Shaun Adamec, O’Malley’s press secretary, said he had no knowledge of Liner contacting the press office and said all of its dealings had been through Brochin’s office. Adamec declined to comment further because the lawsuit is pending.

Liner filed his writ of mandamus in Anne Arundel County Circuit Court the last week in February.

“I feel like I did everything I possibly could to get this resolved under a normal process,” he said.

Howard Goldman, Liner’s lawyer, called the administration’s original-content argument “not only false, but insulting.” Goldman alleges Liner was arbitrarily denied press credentials.

“To merely turn him down is absolutely violative of his First and Fourteenth Amendment rights,” said Goldman, of Rochlin & Goldman P.A. “It’s not like there was an administrative process out there.”

Change in policy

A State House press pass allows the credential holder to bypass security at the State House and legislative office buildings and walk the floors of both legislative chambers.

Failing to get one “doesn’t take away the rights of a member of the public to attend a session of the General Assembly,” said Alexandra Hughes, spokeswoman for House Speaker Michael E. Busch, D-Anne Arundel.

In years past, reporters seeking press credentials had to provide a letter from an editor or station manager to the Department of General Services, verifying the reporter’s employment. The policy was changed this year, however, in response to a press-pass request made last fall by MarylandReporter.com, an online-only news source that features original reporting and aggregates stories from other sources.

Len Lazarick, the site’s editor and publisher, had not anticipated his request would cause any problems — in part because the outfit is fronted by veteran journalists with familiar faces in Annapolis. Lazarick has been covering the State House for decades with various news outlets and already had credentials through his work at a monthly publication in Howard County. Andy Rosen, the associate editor, is the former State House reporter for The Daily Record.

“I was more concerned about getting space in the press room,” Lazarick said.

The site now has four reporters, all of whom obtained press passes.

And Maryland has a new credentialing policy, with more specific criteria: The applicant must be employed by an “independent bona fide” news organization or be a freelancer who “regularly engages in regular news gathering.” Credentials may not be used to engage in “any lobbying, promotion or publicity activity” advocating for a candidate or issue.

The plan was to have a State House correspondents association evaluate the applications based on those criteria, but the association has not yet been formed. In the interim, the governor’s press office evaluates the applications based on the specified criteria.

Similar credentialing structures have been adopted elsewhere to accommodate Web sites, said Mark Binker, vice president of Capitolbeat, the Association of Capital Editors and Reporters.

In North Carolina, where Binker covers the legislature for the Greensboro News & Record, a correspondents association makes recommendations to state officials, and Binker could not recall an instance where a recommendation was rejected.

Still, the proliferation of issues-oriented Web sites and online sources tailored to a specific audience has led to a closer examination of the people — or moneyed interests — behind a site.

“It’s not so much the medium, but who do you really represent?” he said. “Journalists basically rely on being honest brokers. A level of access is granted in exchange for some level of impartiality.”

Liner, who said he was never given a copy of Maryland’s new policy until it was forwarded to him by a reporter last week, stood by his lawsuit after reviewing it.

“Substantively, I think I qualify,” he said. “I think I meet all the criteria.”

Range of restrictions

Graber, the law professor, said there has been very little case law concerning bloggers and reporting.

“One of the problems is we’re dealing with technologies the First Amendment wasn’t designed to consider,” he said.

However, certain principals have been established: The government does not have to give the media special access, but it cannot arbitrarily discriminate between media outlets. Governments can limit media access for non-content-based reasons; for example, there may not be enough space for dozens of reporters at a news conference.

Kathleen A. Bergin, who edits a First Amendment law professors blog, said a government could limit credentials based on a media outlet’s viewership or readership levels, preserving space for outlets with the broadest reach.

“They become more restrictive with who they credential because there is such a high demand,” said Bergin, of the South Texas College of Law in Houston.

Nathan Siegel, a Washington, D.C., media lawyer, said that as long as applicants for press credentials are judged by “reasonable, neutral criteria,” any type of government policy would be fair.

“Simply because someone defines himself as a blogger doesn’t mean he should have a press credential,” he said. “The same is true with a journalist.”

Unfazed

In some ways, it seems that “old media” journalists are more concerned with the question than bloggers.

Liner’s Web site appears to be only the second online-only news source to even apply for a press pass in Maryland.

Several state government and politics bloggers contacted for this story were unfazed by the press pass policy, if they were aware of it at all.

“Most of the pols who want to talk to me know how to find me already,” said Brian Griffiths, a conservative blogger with his own site who also contributes to Red Maryland.

Other online sources assume, as Lazarick did, that they can get press credentials if they apply. CenterMaryland.org, which mixes original reporting and opinion pieces with aggregated stories, falls into that category.

Many of its freelancers have been previously credentialed in Annapolis, said Howard Libit, one of the blog’s founders. Libit is a former reporter and editor with The Baltimore Sun now with Kearney O’Doherty Public Affairs in Baltimore.

“I think if we sought a press pass, I anticipate we would be approved,” he said.

Others already have credentials through an “old media” source. Tom LoBianco contributes to several online sites, including Center Maryland, and has his own blog on Maryland politics. The former State House reporter for The Washington Times has press credentials in Annapolis for his work with WYPR-FM, but was unsure if he could obtain them on behalf of his personal blog.

“Having the backing of an established news organization tends to put the minds of other journalists and other government officials at ease,” he said.

He and Libit both agree the issue of online media needs to be addressed.

“It’s a tricky issue where to draw the line,” Libit said. “There are serious people putting time into reporting what our politicians are doing in Annapolis.”

Brochin, one of those politicians, said bloggers and online media can help fill a void caused by the thinning ranks of traditional media outlets in Annapolis. Brochin supports Liner and his lawsuit, and the senator is not worried about a victory opening the statehouse doors to any and all bloggers.

“As long as it’s a newsgathering organization, I’m not sure if there is anything wrong with too much press,” Brochin said.

For related coverage, see:

• Who gets to be the gatekeeper?
• Looking toward shield laws