The Volokh Conspiracy

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Amusing Passage from Gateway Pundit's Motion for TRO to Get Press Credentials

"Meanwhile, if a tree falls in the forest and there is nobody there to hear it, everyone will still tell the public what it sounded like and what it means."


From TGP Communications, LLC v. Sellers (filed Monday, D. Ariz.) [UPDATE Nov. 23, 2022: Motion denied]:

Understandably, the nation is fixated on this election. This is a matter of great national importance, and its importance stretches far beyond Arizona's borders.

It is no surprise that there is great skepticism on one side of the political divide and there is unqualified trust on the other. Society has degraded to the point that many Americans are skeptical of the good faith, the competence, and the bias of governmental institutions. However, this skepticism almost always comes down as a "Red" versus "Blue" issue. If a Republican makes a claim, one can expect "Team Blue" to scream at the top of their lungs that she must be corrupt, or worse. If a Democrat does the same, the "Red Team" is not going to take her statement at face value. We then depend on the press, such as it is, to inform us all so that we can at least hope to know what in tarnation is going on.

Our press is no less divided than our electorate. Our press has descended into a morass of competing partisan reporting that is no longer something Edward R. Murrow or Ben Bradlee would respect. Nevertheless, when the Free Press clause was placed in the Constitution, our national press was possibly even more divided and biased than it is today…. Anyone with any degree of media literacy today would be unlikely to say that we have not returned to our roots. The only difference is that today, the mainstream press operates much like the Party Press of the early Republic, but they try and perpetrate the fiction that it is not so.

Meanwhile, if a tree falls in the forest and there is nobody there to hear it, everyone will still tell the public what it sounded like and what it means. National Public Radio will report that it happened because Donald Trump caused it with a post on Truth Social. This claim would be followed by a two hour exposé on how trees in forests are racist. Fox News will report the same story, but suggest that the tree fell because Hillary Clinton was trying to kill a frog who had information about her being on Epstein's island. Who are we to believe? We are all free to make that choice, but the greater the diversity of voices in the marketplace of ideas, the better informed the public.

The Gateway Pundit is a news and opinion publication of national renown. Founded Publisher Jim Hoft in 2004, The Gateway Pundit has grown into one of the largest and most highly read political blogs in the nation. The Gateway Pundit is ranked as one of the top 150 websites in the US, with an average of 2.5 million daily readers. It is considered by many to be a "conservative" publication, as its editorial staff does tend to the libertarian/conservative side of things. In a national media landscape where conservatives are an endangered species, this is a relative rarity. However, the Gateway Pundit is no less a legitimate journalism organization than the New York Times – which famously lied to the American public, at the behest of those who wanted war in the Middle East, to push the agenda that there were WMDs in Iraq and that dutifully reported on Trump's "Russian Collusion." CNN lied about the "Covington Kids." Rolling Stone lied about "A Rape on Campus." These were knowing lies, not mere mistakes, but Maricopa would certainly permit a New York Times, CNN, or Rolling Stone reporter to cover their actions—because these are politically loyal "Party Papers" as it were. However, the Defendants have decided, using unfettered discretion, to exclude the Gateway Pundit and its reporters from covering the election debacle. The stated reason was:

Thank you for applying for a Maricopa County Press Pass. This email is to notify you that you have been denied a press credential based on the following criteria which is listed on

* #4: You (a) do not avoid real or perceived conflicts of interest and (b) are not free of associations that would compromise journalistic integrity or damage credibility. Therefore, you are not a bona fide correspondent of repute in your profession. If you would like to appeal this decision, please reply to this email stating the reasons it should be reconsidered.

Further, any press conference about the 2022 Election will be streamed to a Maricopa County YouTube channel and you are welcome to view it.

Thank you,

Elections Command Center

These criteria are unconstitutionally vague and reasonable minds could say the same things about the New York Times or CNN or National Public Radio without stretching a bit. Maricopa's decision to exclude the Gateway Pundit is entirely viewpoint based. And thus, both facially and as applied, this regulation must be struck down. With the exigent circumstance of a "hot news" situation, the Gateway Pundit must be permitted to attend press conferences, immediately.

I express no opinion on the merits, but the passage seemed to be worth passing along; its authors are noted lawyers Marc Randazza, David Gingras, and John Burns.