(CN) — The Ninth Circuit seems likely to reverse a federal judge’s denial of a restraining order that would eradicate part of Maricopa County’s journalist-vetting criteria, which the judges called a First Amendment violation.
Jordan Conradson, a reporter with The Gateway Pundit, was denied a press pass by Maricopa County that would have granted him access to voting centers during the November 2022 election.
Maricopa County attorney Joseph Branco told the court Thursday that Conradson lost credibility in the eyes of the county, not because of the outcome of his reporting, but because his “process of newsgathering” differs from other journalists.
“What you just said seems like a blatant violation of the First Amendment,” said U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee.
Nelson, the most vocal of a three-judge panel of the Ninth Circuit Court of Appeals, said it was “nonsensical” to deny Conradson access to voting centers during the November election to witness vote counting.
Conradson and The Gateway Pundit sued Maricopa County voting officials in November in the U.S. District Court of Arizona after the denial. Officials said Conradson failed to “avoid real and perceived conflicts of interest” and be free of “associations that would compromise journalistic integrity or damage credibility,” according to the complaint. The lawsuit claimed those criteria violate the First Amendment and the 14th Amendment due process clause.
As part of the lawsuit, Conradson and The Gateway Pundit, which bills itself as "a counter to the establishment media," sought a temporary restraining order to bar the county from using those specific criteria to vet journalists.
U.S. District Judge John J. Tuchi, a Barack Obama appointee, denied their request in November. He found the language of the criteria used was clear and fair, and Conradson’s denial didn’t violate the 14th Amendment since the county gave Conradson a chance to appeal in an email that he did not respond to for 41 days.
The Ninth Circuit intervened in December and ordered Conradson to be issued a press pass pending his and his employer’s appeal before the court.
“We know the district court got it wrong,” Nelson said flatly.
Gateway Pundit attorney Marc Randazza asked the Ninth Circuit to strike down those vetting criteria “facially,” which would say they’re unconstitutional as they’re written rather than just how they were applied to Conradson in a specific instance.
“The constitutional transgressions here are so bad,” Randazza said, “that we are not here for just us. We are here for any journalists that might be before a government agency, no matter how great or how small, that might try to use such language in order to create an environment in which they get to act as a ministry of truth.”
U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee, told Branco that the county can’t deny Conradson reporting access just because they don’t like his style of journalism.
“The First Amendment means we have to hear things sometimes that we don’t want to hear,” she chided. “It seems you’ve got county officials here not liking this person and what this person is saying."
Callahan asked Randazza if the case is moot now that the November 2022 election is complete.
Randazza said it isn’t moot for two reasons.
The first, he claimed, is that as long as lawsuits over the election are active, then the election isn’t complete. The second is that county regulations on Conradson do not specify that they only applied to the election, Randazza argued.
Even today, he said, Conradson is told by the county that he isn’t allowed to enter the parking lot of the election center building, let alone walk inside and interview officials.
Branco denied Conradson is still banned, saying that the rules are clearly only meant for events directly related to the November election — a point Randazza challenged both in his first argument and in his two-minute rebuttal.
Before fielding a question to U.S. Circuit Judge Holly Thomas, a Joe Biden appointee and the only Black person on the panel, Randazza referred to her directly as “Justice Jackson,” a reference to Justice Kentanji Brown Jackson, the first and only Black woman to serve of the United States Supreme Court.
“You just got promoted,” Nelson joked to Thomas, who was already laughing off the gaffe.
Callahan said the panel would submit the case for consideration. It's unclear when the court will rule.
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