ALF Presses Supreme Court To Review Selective Exclusion of Journalists From Government Briefings

October 11, 2021

The Atlantic Legal Foundation has submitted an amicus brief supporting the certiorari petition in John K. MacIver Institute for Public Policy, Inc. v. Tony Evers, Governor of Wisconsin, No. 21-388. The question presented —the proper First Amendment test for scrutinizing government officials’ selective exclusion of journalists from press conferences and briefings—goes to the heart of the Constitution’s guarantee that government will not abridge freedom of the press.

According to the amicus brief,

this is not a partisan issue. It does not favor liberals over conservatives, Republicans over Democrats, or traditional press over “new media.”  It is a concern that is as compelling today as it was 230 years ago when the First Amendment was added to the Constitution, in part to prevent a tyrannical government from suppressing a free and open press.

ALF’s amicus brief was co-authored by Capital Appellate Advocacy founder  Larry Ebner, who serves as ALF’s Executive Vice President & General Counsel, and by Brian Goldman of Holwell Shuster & Goldberg, LLP, who provided pro bono assistance.

Background

The certiorari petition explains that  MacIver News Service is a project of the John K. MacIver Institute for Public Policy, which describes itself as  “a Wisconsin-based think tank that promotes free markets, individual freedom, personal responsibility and limited government.” MacIver’s professional journalists are credentialed by the Wisconsin Legislature. But when a new Governor took office, his communications director asserted that the MacIver journalists are not “bona fide journalists.” Ostensibly for this reason, they were banned from the Governor’s press corps and excluded from press events. The Governor’s office subsequently devised a list of supposedly neutral, non-exhaustive, “media-access criteria.” For example, one of these criteria is that a journalist seeking to participate in gubernatorial press conferences and briefings be “employed by or affiliated with an organization whose principal business is news dissemination.” This excludes  journalists like MacIver’s because they are employed by think tanks or organizations other than traditional news media.

MacIver sued the Governor in his official capacity to challenge the exclusion of its journalists. The Seventh Circuit affirmed a Wisconsin federal district court’s grant of summary judgment in favor of the Governor. Deepening an existing circuit split, the Seventh Circuit  rejected MacIver’s contention that the selective exclusion of  journalists from official governmental press events must be measured against the guarantee of equal access under the First Amendment’s Free Press Clause. Instead, the Seventh Circuit applied “public forum analysis,” a test applicable to forum-based (i.e., location-based) restrictions on free speech under the First Amendment’s Free Speech Clause.

MacIver, represented by the Liberty Justice Center, filed a petition for a writ of certiorari, seeking Supreme Court review of the exclusion of its journalists.

ALF Amicus Brief

The brief urges the Court to grant certiorari and hold that journalists should not be excluded from press events based on a publication’s political or ideological viewpoint, or its affiliation with a “think tank” or other organization that engages in public policy analysis or advocacy.  The amicus brief argues that there is a compelling need for the Court to determine the appropriate First Amendment test for selective exclusion of members of the press.  More specifically, the brief argues that selective exclusion of the press is subject to strict scrutiny under the Press Clause’s implied guarantee of equal access, rather than the looser “forum analysis” test used to assess restrictions under the Speech Clause. The brief discusses why forum analysis is an inappropriate test for determining whether a selective exclusion of journalists is constitutional, and why applying  forum analysis to selective exclusion invites both viewpoint discrimination and discrimination against new types of media, such as online media.