The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Fix the Courts made a public records request to the University of Louisville. The organization received a 120+ page document dump concerning Justice Barrett's visit to the McConnell Center in September 2021. I went through the tranche of documents, and found a few items of interest. (FOIA dumps are generally sorted with the most recent emails at the top, so I usually start reading at the end).
There was a back-and-forth about press restrictions between the Public Information Office, and Gary Gregg at the McConnell Center.
First, on August 9, 2021, the Court's PIO office provided very strict conditions for the press–no still photograph!
If you would like to open the public event to media coverage, the Justice would like to follow these guidelines: Print press coverage only–no broadcast coverage and no still photography (including no still photograph by the McConnell Center). Recording devices are permitted for note taking purposes only, not for broadcast. Reporters should be seated in a separate section and should not participate in any Q&A with the audience, if any. The Justice will not be available for any interviews or press availabilities during her visit. Please make an announcement prior to the Justices's event asking attendees to refrain from cell phone photography or recording during the Justice's events.
Second, on August 19, 2021, Gary Gregg of the McConnell Center wrote back. He called the rules "draconian." He was right. These restrictions are completely out of whack with how public events are held. I think the prohibition on recording is foolish, but I get it. The Justice does not want to be played back on broadcast news. But a ban on still photography? As if every person in the room does not have a smart phone? Did these restrictions come from PIO or from the Justice? Maybe Art Lien could do a sketch.
Third, on September 7, 2021, Gregg asked if Barrett would take photographs with students and soldiers during private meetings. And Gregg asked if Senator McConnell and other VIP could get a photo. Apparently, this request caused some reconsideration.
Fourth, that same day, the PIO retreated, and issued revised press guidelines. Now, still photograph would be allowed for a few minutes:
Please note that we have revised the guideline for the Justices's public event to include limited still photography. Please let me know if you have any questions or would like to discuss. IF you would like to open the event to media coverage, the Justice would like to follow these guidelines: Still camera and print press coverage only. Recording devices are permitted for note taking purposes only, not for broadcast. Any still photographs should be limited to the first and last 1-2 minutes of the program. Reporters should be seated in a separate section and should not participate in any Q&A with the audience, if any. The Justice will not be available for any interviews or press availabilities during her visit. Photos taken at the public lecture by the McConnell Center may be used in association with news coverage of the event on the Center's website and social medial platforms. The McConnell Center photographer should also limit photos to the first and last 1-2 minutes of the Justice's public event. Please have a member of the McConnell Center staff ensure that the still photograph limitations are adhered to by all still photographers.
Photos taken by the McConnell Center at any other location during the Justice's visit, including her meeting with the McConnell Scholars and any private reception/dinner, maybe used for personal mementos only (not for publication, posting, or release). We understand the Justices's meeting with the McConnell Scholars is considered private, not open to press coverage. The Justice does not object to the proposed five group photos and to photos with VIPs if requested. All of these photos are for personal memento use only (not for publication, posting, or release).
By that point, the press conditions were set.
There were also several emails between Justice Barrett's chambers and Gregg. On June 17, 2021, Barrett's assistant asked:
She is wondering what the topic of the public lecture will be so that she can begin to think about what she will say.
On June 22, 2021, Barrett's assistant wrote back:
Also she'd really like to start thinking about the public lecture and wants to know how long the talk needs to be along, with a proposed topic.
On June 28, 2021 (the penultimate day of the term!), Justice Barrett's assistant offered these guidelines:
Justice Barrett will prepare short remarks (no more than 15-20 minute) followed by Q&A. She would like the questions submitted in advance and asked by a central questioner, or students/alums/audience could be chosen in advance to ask the questions. She does not want to field inappropriate questions in the moment.
This last sentence should have never been made in print. The assistant is conveying that the Justice personally asked to avoid "inappropriate" questions. And she made that request to the McConnell Center, of all places! The optics are awful. This is the kind of thing you say over the phone, and never in an email–especially with a public institution subject to FOIA.
On August 22, the assistant explained that the Justice wanted to personally vet the questions:
She would like to see the vetted questions just to be sure.
Again, this sort of statement should never be made in print. It looks awful for an assistant to write in a FOIA-able document the Justice wants to see "vetted questions" in advances. All Justices take screened questions, but usually the screener doesn't check with the Justice first.
Moreover, this sentiment is even more precarious in light of the actual remarks Barrett gave. According to press reports, Barrett said she was "concerned about public perception of Supreme Court." Did this sentiment arise from an "inappropriate" question? Or a question she vetted? Who knows? She prohibited recording, so we are stuck with trusting paraphrasing from reporters.
Finally, Justice Barrett's assistant uses emojis in emails.
Call me a snoot, but I am not a fan of smiley faces in emails from Supreme Court chambers.