The Volokh Conspiracy
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Ninth Circuit Orders Press Pass for The Gateway Pundit, Pending Appeal
The press pass is for election-related events connected to Maricopa County's ongoing ballot counting; the panel concluded that The Gateway Pundit was likely to succeed on its claim that the denial was unconstitutionally based on its viewpoints.
From the Ninth Circuit's order yesterday in TGP Communications, LLC v. Sellers; the order was issued by the merits panel that will hear the case (though it's not signed by particular judges because the panel has not yet been publicly identified), so it offers an important (though not definitive) clue as to the judges' likely eventual conclusions:
On November 8, 2022, the United States held its mid-term elections. Nearly a month later, Maricopa County continues to count those cast ballots. As a result, press attention remains fixed on Arizona, the election results and the ballot counting. To balance the demand for access with logistical and security requirements, Maricopa County began requiring members of the press to obtain a press pass to enter its facilities to cover election-related events. Jordan Conradson, a reporter for The Gateway Pundit, the trade name of TGP Communications, LLC …, sought a press pass to attend press briefings about the election. Maricopa County and individual Appellees denied Conradson a press pass because, in their view, he is not a reputable journalist under their press-pass guidelines and had reported false information about Arizona elections.
Plaintiffs sought a temporary restraining order, arguing that the press-pass criteria were unconstitutional. They sought, among other forms of relief, access to the County press briefings. After an evidentiary hearing, the district court denied injunctive relief.
The court granted an injunction pending appeal, largely because "At least at this preliminary stage, Appellants have shown a likelihood of success on the merits":
Appellants claim that, as applied, the denial of a press pass to Conradson was impermissibly content- and viewpoint-based. The First Amendment does not provide a right of free and unconditional access to all government properties or events. Further, "[t]he existence of a right of access to public property and the standard by which limitations [placed] upon such a right must be evaluated differ depending on the character of the property at issue."
In traditional public forums—such as parks, streets, and other spaces traditionally held open for public speech—"the government may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited." And even in limited public forums where the government opens a traditionally private place for speech on limited topics, such as opening the County facilities for press conferences as the County did here, the First Amendment's protections against content-based and viewpoint-based restrictions are robust.
Content-based restrictions "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." And the First Amendment provides even stronger protection against viewpoint discrimination, which "is an egregious form of content discrimination and occurs when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction on speech." A restriction on speech is unconstitutional if it is "an effort to suppress expression merely because public officials oppose the speaker's view." In evaluating claims of viewpoint discrimination, "[w]e thus look to the government's purpose as the threshold consideration."
The County denied Plaintiffs' September application for a press pass because of its conclusion that Plaintiffs "(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," and because it determined that Conradson is "not a bona fide correspondent of repute in [his] profession." But despite these stated reasons, the evidence put before the district court—including that presented by the County itself—strongly suggests that a predominant reason for the County denying Plaintiffs a press pass was Conradson's political views.
The County, for example, noted that "Conradson participates in political party events and associates with people and groups that demonstrate an inability to avoid real or perceived conflicts of interest." Relying on a reporter's attendance at political party events is weak grounds—and a poor measuring stick—for determining a journalistic conflict of interest. No other evidence placed before the district court— nor the arguments made to us on appeal—supports the assertion that Conradson fails to "avoid real or perceived conflicts of interest," and is not "free of associations that would compromise journalistic integrity or damage credibility."
{The County also failed to establish that, at the time of the denial in September, Conradson had violated the press-pass restrictions by having any journalistic ethics problem. In the district court proceedings, the County noted that after being denied a press pass, "Conradson appeared at press conference on October 13, 2022, with a hidden camera. On November 10, 2022, he showed up at [the Maricopa County Tabulation and Election Center] under the guise of being there to pick up his credentials." He allegedly became disruptive, and the County had to remove him from the facility. Such conduct is troubling. None of these subsequent acts, however, could have influenced the County's previous denial of the press pass.
And a restriction on an individual's First Amendment rights may not be justified with post hoc explanations.}
Moreover, the evidence before the district court strongly suggests that the County considered Conradson's political leanings. The County's own witness, Roy Moseley, stated at the evidentiary hearing that, beyond not avoiding conflicts of interest, Conradson's press pass was denied because "[h]e doesn't seek the truth and his articles have led to direct threats to Board of Election officials and employees." Permitting "truth" to be determined by the County violates our foundational notions of a free press.
{There is no evidence that Conradson ever threatened County employees. Certainly, such evidence would be relevant to the issuance of a press pass as a justification wholly independent of Conradson's viewpoint. But—in the absence of any evidence that Conradson himself called for violence—the fact that third parties who may have read Conradson's articles engaged in threatening behavior is not such relevant evidence.}
The County's own evidence only underscores that the press-pass denial, as applied to Conradson, was not viewpoint neutral; the County's evidence indeed highlights its reliance on Conradson's political views. Before the district court, the County argued:
As part of the application process, Mr. Conradson submitted three links to work examples. Those three articles … do little more than proselytize The Gateway Pundit's views. Each article germinates from a news report or press release (such as the County's announcement of Press Pass criteria). Mr. Conradson then expresses an opinion about the news report or press release and supports that opinion by referencing like-minded social media posts, prior articles by The Gateway Pundit, and allying websites that express the same viewpoints. Moreover, each article uses inflammatory and/or accusatory language, such as "Fake News Media," "globalist elitist establishment," and "highly flawed 2022 Primary Elections." And while Mr. Conradson is certainly entitled to express his opinions, his poorly sourced, researched, and reported work lacks the journalistic integrity and credibility required by the Press Pass criteria.
The district court rightly found this evidence to be a "fraught consideration." Yet the district court held that the County was furthering its legitimate interest in disseminating accurate information to the public in a manner "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."
In so concluding, the district court relied heavily on the Seventh Circuit's analysis of similar press pass restrictions in John K. MacIver Institute for Pub. Policy, Inc. v. Evers (7th Cir. 2021). In MacIver, however, the court noted that there was no evidence that the government had "manipulate[d] the[] neutral criteria in a manner that discriminate[d]" against the applicant. The MacIver court further found that the applicant's "other naked assertions of bias" were "unsupported by references to the record." That is not the case here.
The evidence supports, at least at this preliminary stage of the review, the conclusion that a predominant reason for the County denying Conradson a press pass was the viewpoint expressed in his writings. It is the County's politically-tinged assessment of Conradson's prior reporting that appears to have led it to deny him a press pass. That type of viewpoint-based discrimination is exactly what the First Amendment protects against. Because it appears at this preliminary stage that the County engaged in viewpoint discrimination, it is likely that the County's denial of a press pass will not survive review when considering Conradson's as-applied challenge. Appellants have thus shown a likelihood of success on the merits….
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Despite this likely constitutional violation, the district court noted Conradson could watch live streams of press conferences, even if he could not attend in person, and delayed 41 days from the denial to seek injunctive relief. Neither the availability of live streams nor Conradson's delay sufficiently allay the irreparable harm from a likely constitutional violation….
The district court found that watching the press conference live streams, rather than attend in person, was a "de minimis" harm because County officials would be under no obligation to "interact with" Conradson, even if they were granted access. We disagree. The constitutional harm of viewpoint discrimination, expressed here by the County's exclusion of Plaintiffs from its limited forum, cannot be rendered de minimis or otherwise mitigated by requiring Plaintiffs to avail themselves of a less desirable, even if somewhat effective, alternative.
As the U.S. District Court for the District of Columbia has persuasively explained, "[w]hile it is perfectly true that reporters do not have an unrestricted right to go where they please in search of news … the elimination of some reporters from an area which has been voluntarily opened to other reporters for the purpose of news gathering presents a wholly different situation." For this reason, "[a]ccess to news, if unreasonably or arbitrarily denied …, constitutes a direct limitation upon the content of news." … "[T]he First Amendment 'provides at least some degree of protection for gathering news and information, particularly news and information about the affairs of the government,' [so] Plaintiffs' attendance at the Governor's press conferences certainly is protected." … Viewpoint discrimination as to in-person access to such conferences is not a de minimis injury….
{Our grant of an injunction pending appeal, which requires Appellees to grant Conradson temporary press credentials until the merits of Plaintiffs' appeal are decided, does not preclude Maricopa County from revoking Conradson's press credentials in the future—or declining to grant those credentials—so long as the County does so consistent with Conradson's First Amendment rights.}
For more on the District Court's decision, see this post from two weeks ago. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer, and congratulations to Marc Randazza and David Gingras, who represent TGP.
