The Volokh Conspiracy
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Court Rules Against The Gateway Pundit's Request for Press Pass
From today's decision in TGP Communications LLC v. Sellers by Judge John Tuchi (D. Ariz.):
TGP is an online news and opinion publication. Founded in 2004, TGP has developed a large readership and now averages more than two- and-a-half million readers daily. It describes itself as "a trusted news source for the stories and views that are largely untold or ignored by traditional news outlets." Mr. Conradson is a reporter with TGP who covers Arizona politics. Neither TGP nor Mr. Conradson are shy about their libertarian conservative political leanings. Mr. Conradson testified that his favorite political party is the Republican Party "but I wear that on my sleeve." He noted that his readers understand his political views: "everybody who reads my work knows that I am very transparent about it."
On September 27, 2022, Mr. Conradson applied for credentials to attend press conferences given by Maricopa County officials and to access certain County facilities. The County requires reporters to obtain such credentials—a "press pass"—in order to attend press conferences at, or otherwise enter, the Maricopa County Tabulation and Election Center ("MCTEC") and the tenth floor of the County Administration building in Phoenix, Arizona.
Roy Fields Moseley, the Communications Director for the County, explained that the County instituted the press-pass requirement in light of logistics and security concerns. For example, the Board of Supervisors' conference room on the tenth floor of the County Administration building can accommodate approximately 50 seats for reporters; after the extensive media interest in the 2020 election in Maricopa County, Mr. Moseley testified it was fair to say that they were anticipating there would be a lot more people wanting to attend press conferences. He also testified that there were security issues at MCTEC after the 2020 election, including an incident in which
[s]everal people were not members of the media but perhaps might say they are, but they are not what we would call news reporters. They managed to follow legitimate news crews into the lobby of MCTEC. This was a security concern. They had to be removed. There was a large crowd gathered outside and we didn't want a repeat of that type of situation when we came up on 2022.
The County also has installed temporary and permanent fencing at MCTEC, where the Maricopa County Sheriff's Office maintains security.
Reporters can apply for a press pass through a page on the County's website. The webpage states that "[t]he official press pass will allow members of the press to attend news conferences or enter the Elections Department's office to conduct interviews, take photos, and/or video." The webpage states that the County evaluates "member of the press" based on the following criteria:
- Is the person requesting press credentials employed by or affiliated with an organization whose principal business is news dissemination?
- Does the parent news organization meet the following criteria?
- It has published news continuously for at least 18 months, and;
- It has a periodical publication component or an established television or radio presence.
- Is the petitioner a paid or full-time correspondent, or if not, is acting on behalf of a student-run news organization affiliated with an Arizona high school, university, or college?
- Is the petitioner or its employing organization engaged in any lobbying, paid advocacy, advertising, publicity, or promotion work for any individual, political party, corporation, or organization?
- Is the petitioner a bona fide correspondent of repute in their profession, and do they and their employing organization exhibit the following characteristics?
- Both avoid real or perceived conflicts of interest;
- Both are free of associations that would compromise journalistic integrity or damage credibility;
- Both decline compensation, favors, special treatment, secondary employment, or political involvement where doing so would compromise journalistic integrity; and
- Both resist pressures from advertisers, donors, or any other special interests to influence coverage.
This list is not exhaustive. The time, manner, and place limitations or needs of any one event may require consideration of additional factors.
Mr. Moseley testified that a team of eight County employees reviews press pass-applications, which must receive two "yes" votes to be approved.
On September 30, 2022, three days after Mr. Conradson applied for a press pass, the County notified him by email that his application was denied. The email stated that he was denied based on the following criteria: "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." When asked to summarize, in his words, why Mr. Conradson was denied a press pass, Mr. Moseley testified that it was "because he doesn't avoid real or perceived conflicts of interest. If you look at his social media or his articles, they not only present a conflict. He doesn't seek the truth and his articles have led to direct threats to Board of Elections officials and employees."
To support the allegation about threats, the County points to Reuters articles stating that TGP was cited in highly threatening communications directed at County election employees. The County further cites to a TGP article by Mr. Conradson alleging that a County employee deleted files from the County's Elections Management Server—allegations the County denies. In the article, Mr. Conradson included the employee's name and photograph. According to one of the Reuters articles, readers left highly threatening comments about the employee in the comments section of the article. Mr. Conradson testified that he was "not aware that people got threats as a result of something I wrote."
The September 30, 2022 denial email stated that Mr. Conradson could appeal the decision by sending a reply email "stating the reasons it should be reconsidered." It also stated that "any press conference about the 2022 Election will be streamed to a Maricopa County YouTube channel and you are welcome to view it." On November 10, 2022, Mr. Conradson sent a reply email appealing the County's decision. In his email, Mr. Conradson stated that the denial violated his rights under the First Amendment and that "I will be coming in shortly to attend a press conference and receive my credentials."
The court rejected (at least at this stage, which involved a request for a temporary restraining order) plaintiff's argument that the rule was unconstitutionally vague:
Plaintiffs argue that the two criteria under which the County denied a press pass to Mr. Conradson—that he neither "avoid[ed] real or perceived conflicts of interest" nor remained "free of associations that would compromise journalistic integrity or damage credibility"—are facially unconstitutional because they fail to make sufficiently clear "what conduct is prohibited." The Court is unpersuaded at this juncture.
As an initial matter, the County has not "prohibited" reporters such as Mr. Conradson from the conduct described in the criteria, at least not in the sense of triggering any kind of civil or criminal penalties. Rather, the press-pass criteria are just that—a set of standards by which the County determines whether to grant reporters access to events and facilities that, although "public" in the sense that they are maintained for the benefit of the community, are not open to the general public as a matter of right. Moreover, the criteria that Plaintiffs challenge are only two among several characteristics of journalistic practice that the County considers. These criteria should be considered in the context of the press- pass scheme as a whole.
Undercutting Plaintiffs' argument is the fact that the County drew its press-pass criteria directly from the criteria used by the Office of the Governor of Wisconsin, which were in turn based on standards used by the Wisconsin Capitol Correspondent's Board and in the United States Congress. The Seventh Circuit upheld the constitutionality of these same criteria just last year. John K. MacIver Inst. for Pub. Policy, Inc. v. Evers (7th Cir. 2021) ("MacIver"). Seventh Circuit did not consider a vagueness challenge in that case, the court of appeals nonetheless provided detailed analysis of these criteria, indicating that their meaning is not as elusive as Plaintiffs suggest.
Regarding the first challenged criteria, Plaintiffs question whether it is sufficiently clear "what an actual conflict of interest could be for a journalist." They further argue that "it is impossible to determine how a journalist may avoid being perceived to have a conflict of interest." Conflicts of interest are familiar to the legal system. It is true that what constitutes a conflict of interest is less obvious in the journalism context—for one thing, journalists do not have clients with discernable interests in the way that lawyers do. However, the Society of Professional Journalists' ("SPJ") Code of Ethics uses the term, indicating that the term has broadly understood meaning among practicing journalists. Plaintiffs' expert, Professor Gregg Leslie, testified that conflicts of interest in the journalism context would include, for example, reporting favorably on a publicly traded company while owning stock in that company. {The Court references the SPJ's Code of Ethics as evidence only of the use and meaning of the terms in the County's criteria within the journalism community. Plaintiffs' expert, Professor Gregg Leslie, noted that the Code was not intended to establish legally enforceable rules of journalistic practice; the Code itself states that it "is not, nor can it be under the First Amendment, legally enforceable." The point is well taken.}
The County urges and employs a broader interpretation of the term that includes a reporter such as Mr. Conradson reporting on issues for which, and candidates for whom, he also advocates. There is therefore some merit to Plaintiffs' argument about a lack of consensus as to the meaning of a conflict of interest in the journalism context. But there is reason to believe that the County's interpretation is not an outlier. For example, the Arizona Senate's Media Rules state that applicants for media credentials "must not be engaged in any lobbying or advocacy, advertising, publicity or promotion of any individual, political party, group, corporation, organization or a federal, state or local government agency …."
Turning to the second challenged criteria, Plaintiffs question what it would mean to be "free of associations that would compromise journalistic integrity or damage credibility." As before, there is reason to believe these terms are more broadly understood than Plaintiffs suggest. These criteria find analogue in the SPJ's Code of Ethics, which states that "[j]ournalists should … avoid political and other outside activities that may compromise integrity or impartiality, or may damage credibility." Prof. Leslie agreed that part of being a good journalist is to "stay away from anything that makes you look biased" and "don't do anything that is going to damage your credibility," although he disputed that this was anything more than a "very broad statement" and "an aspirational goal." Further, it is not clear that these criteria "authorize[] or even encourage[] arbitrary and discriminatory enforcement," given that the County granted press passes to other publications considered to be conservative-leaning, such as Fox News and Newsmax.
Thus, while Plaintiffs have validly questioned the precise contours of the County's criteria, they have not established they are likely to succeed on their vagueness claim. Law demands clarity, of which the criteria are not a perfect model. But "'perfect clarity is not required'"—even where First Amendment rights are implicated—and "'we can never expect mathematical certainty from our language.'"
The court also concluded that, when it came to access to "nonpublic County facilities and press conferences given by County officials," press pass policies need only be reasonable and viewpoint-neutral (the rule for restrictions in a limited public forum or nonpublic forum), and that these policies appeared to qualify:
The County argues that it has "a right to set criteria for allowing people to get into buildings and to attend press conferences." This must be true given the County's well-founded safety concerns and limited space. Plaintiffs do not apparently disagree in principle, conceding that the County is not required simply to let in anyone who presents themself as a journalist. With respect to the specific criteria the County employs to further these interests, the Court agrees with the Seventh Circuit's analysis in MacIver that the first three challenged criteria are "reasonably related to the viewpoint-neutral goal of increasing the journalistic impact of the [government's] message by including media that focus primarily on news dissemination, have some longevity in the business, and possess the ability to craft newsworthy stories."
The County further argues that it has "the right to set up criteria for ethical reporting," which broadly summarizes the fourth and fifth challenged criteria. This [is] a more controversial proposition, with which Plaintiffs and their expert, Prof. Leslie, strongly disagree. The Court agrees that this proposition is problematic insofar as it invites the government to play a role in policing the free press, whose constitutionally protected function is to hold the government to account.
Here, however, the County does not assert a right to establish criteria for ethical reporting to justify policing the practice of journalism, at least not directly. Rather, the County asserts this right to justify evaluating reporters' practices to determine whether to grant them access to press conferences and nonpublic County facilities and thereby further the County's legitimate interest in disseminating accurate information to the public. {For this reason, the Court is also not persuaded by Plaintiffs' argument that the press-pass criteria are akin to licensing regimes that "condition the exercise of First Amendment protected rights on 'obtaining a license or permit from a government official in that official's boundless discretion.'" The County is not requiring a license to gather news.} Cabined to this purpose, the Court agrees with the Seventh Circuit's analysis that the fourth and fifth criteria "are reasonably related to the viewpoint-neutral goal of increasing journalistic integrity by favoring media that avoid real or perceived conflicts of interest or entanglement with special interest groups, or those that engage in advocacy or lobbying." …
Nor is the Court persuaded that the County's denial of a press pass to Mr. Conradson was viewpoint-based. In short, Plaintiffs have not substantiated their claim that "[the County] used [its] unfettered discretion to discriminate against the Gateway Pundit because they do not want to be challenged by the Gateway Pundit's style of journalism." Plaintiffs suggest that the County's decision is related to Plaintiffs' reporting about former Maricopa County Supervisor Steve Chucri, but this is conjectural. They further suggest that the County discriminated against Plaintiffs because of a particular bias against Plaintiffs, pointing to Defendant Richer's retweet of a tweet hinting that the County instituted the press-pass restrictions to keep Plaintiffs out of press conferences. Such behavior may be beneath the dignity of the office, but Plaintiffs have not substantiated their claim that keeping them out was the animating reason behind the restrictions.
Finally, Plaintiffs suggest that the County discriminated against them based on their political leanings. While the County did take note of Mr. Conradson's political leanings—which the Court acknowledges is a fraught consideration—it did so in the context of evaluating whether he was free from associations that would compromise his journalistic integrity. Mr. Moseley denied that the County rejected Mr. Conradson's application based on his opinions and noted that the County has granted passes to other conservative leaning publications.
In sum, while Plaintiffs have raised thorny questions about the County's press-pass restrictions, they have not shown they are likely to succeed in arguing that the restrictions or their application in this case are unreasonable or constitute viewpoint discrimination.
Congratulations to Maricopa County Deputy County Attorneys Thomas P. Liddy, Charles E. Trullinger, Joseph J. Branco & Joseph E. La Rue, who represent defendants. For an amusing (though ultimately not successful) passage from the plaintiff's motion for a TRO, see this post.
