Entering his senior year at Syracuse University’s Newhouse School, David L. Marburger was set on a career in broadcast journalism. Then he took a required course in communications law from Professor Jay B. Wright. “That was a real epiphany,” he recalled. “I knew I really wanted to do that, to represent the press in libel, privacy and open government cases.”
After earning a bachelor’s degree in communications in 1976, Marburger went home to Pittsburgh to work as a writer, reporter and editor-producer for KQV all-news radio. In 1980, he entered the University of Pittsburgh law school.
Over the years Marburger, has been a hero in the cause of the free press. He’s not only served a range of newspaper and broadcast clients, but he’s also handled many pro bono (no fee) cases. A partner in the Cleveland office of Baker & Hostetler L.L.P., he is described as an authority on legal issues in the content side of the communications industry, particularly First Amendment rights, libel and privacy law. He has litigated more than 100 First Amendment cases in 19 years. He’s defended news organizations in some 70 libel and invasion of privacy cases and, according to his bio on Baker & Hostetler’s Web site, won virtually all of them.
Stan Bullard, senior reporter for Crain’s Cleveland Business and former Freedom of Information chair of the Cleveland SPJ chapter, said Marburger is the first person reporters turn to when a question of freedom of the press or government access comes up in Cleveland. “If you look in areas like government access and freedom of the press, a lot of that case law has David Marburger’s name on it,” Bullard said.
One if his earliest open government victories set an important national precedent. Representing a 7,000-circulation newspaper in northwest Ohio, Marburger argued successfully for public access to the records and board proceedings of a privately run public hospital [State ex rel. Fostoria Daily Review Co. vs. Fostoria Hospital Association, 531 N.E.2d 313 (1988)]. The association was using a public facility (a hospital) to provide a public service (health care), yet its officials had sought to bar the public and press. The precedent set by the case – that open government laws could apply even if the government had privatized one of its functions – became the framework for interpreting access across the country during the Reagan-era movement to privatize other government functions.
A Marburger case that shows up in most communications law texts is the U.S. Supreme Court decision in Lakewood vs. Plain Dealer [486 U.S. 750 (1988)]. Marburger argued that giving a mayor unbridled authority over the placement of newspaper vending machines was unconstitutional. Today he is challenging the constitutionality of another city ordinance, one in Cleveland that makes it a crime to advertise alcoholic beverages on a billboard. “I recoil at the idea that the government can dictate to us what truthful messages we can be exposed to,” he said.
Marburger often speaks to groups about freedom of expression on the Internet. Another frequent topic now is the impact of Sept. 11 on America’s First Amendment freedoms. “It’s a huge challenge with a lot of fallout for people who are interested in open government,” admits Marburger. “There is a great fear that access to public (records) provides would-be terrorists with information that could be used to hurt us.”
Whatever the future holds for these challenges to open government, it’s likely David Marburger will be on the forefront, helping to establish new precedents. And what of the professor who started it all? Wright is still on the faculty in Syracuse and still teaching communications law to prospective journalists. “I still call him once in awhile,” says Marburger. “That course had a huge impact on me.”
Richard D. Hendrickson
SPJ Ohio Sunshine Co-chair