Reporters Barred From Pennsylvania Poll Sites

(CN) - The Pittsburgh Post-Gazette cannot sue local officials over laws that restrict the ability of reports to cover the election and new identification rules, a federal judge ruled.

The newspaper claimed that Section 3060(d) of Pennsylvania Laws unconstitutionally barred its reporters and photographers from polling places for the November election.

It said press coverage of the polls would be crucial since it was the first year implementing the state's new photo identification law. The federal complaint named as defendants Pennsylvania Secretary Carol Aichele, the Allegheny County Electronics Division and Elections Division Manager Mark Wolosik.

Claiming violations of its equal protection rights as well as the First and Fourth Amendments, the newspaper contended that enforcement of statue 3060(d) "would interfere with the ability of Post-Gazette reporters to observe and cover the interactions between voters and election officials on Election Day." It also said other reporters had better access to record and report.

U.S. District Judge Nora Barry Fisher disagreed and dismissed the amended complaint with prejudice.

"Because 3060(d) 'does not target or single out' newspaper reporters for disfavored treatment, the First and Fourth Amendments do not forbid its enforcement against them," Fischer wrote. (58,1)

"No opinion is expressed as to whether 3060(d) imposes a 'mandatory' duty of enforcement on election officials, or as to whether those officials remain free to provide the access sought by PG on a 'discretionary' basis," the 58-page decision states.

She added: "It suffices to say that the present circumstances do not justify 'federal-court oversight' of the manner in which election officials in Allegheny County discharge their duties on Election Day."

The complaint came on the heels of an injunction that the paper won in 2008 after Allegheny County allegedly "attempted to prevent news photographers who were located in places lawfully accessible to them from photographing in the direction of voting machines."

The general assembly's regulatory authority to enact such regulations at polling places "unlawfully prohibited photographs, video taping and any other type of record activity inside the polling place," the Post-Gazette claimed. Lawmakers had also allegedly wrongfully extended authority over recording activity "in the polling place from outside of the polling place, for example, through an open door or window."

"By prohibiting attempts to photograph or record activities within polling places through open doors and windows, the Elections Divisions' policy was more restrictive" than Pennsylvania regulation 3060(d)," that complaint said.

Allegheny County Judge Joseph James had granted injunction in November 2008, with a caveat: "No photography shall be taken from inside the polling place or within ten feet of the entrance of the polling place."

After the state adopted Act 18, requiring proof of identification before voting, on March 14, 2012, the Post-Gazette requested that the initial order be amended to allow recording while individuals registered with election officials, just not in the booths while they vote.

The Post-Gazette claimed reporters were "constitutionally entitled to observe and cover the implantation and enforcement of Act 18," maintaining that "newspaper reporters working in other Pennsylvania counties had been permitted to take photographs of voter inside of polling places."

In a sweeping October 2012 order, Fisher decided that there no jurisdictional defects, and that the Post-Gazette's claims were governed by preclusion law.

An important factor in determining whether two lawsuits are based on the same cause of action is whether the relief sought in the second action is 'essentially identical' to the relief sought in the first action," Fisher wrote.

"Although these issues both relate to the ability of Post-Gazette employees to cover polling activities, they lack the 'identity' necessary for the application of claim preclusion," she added.

The decision also states: "Since the constitutional validity of 3060(d) was never litigated in the earlier action, the Court has no occasion to consider whether the claims asserted by PG would otherwise fall within an exception to the general rule of preclusion. It suffices to say that the applicability of the general rule cannot be established in the first place."

Fischer added: "The fact that 3060(d) may indirectly restrict the ability of Post-Gazette reporters to cover polling activities is of no constitutional significance."

"It is worth noting that a voter, unlike a prison inmate, is not subject to restrictions limiting his or her direct access to the members of the press," the decision continues. "Since election officials have no authority to prevent voters from leaving a polling place, voters have an unrestrained ability to speak with reporters about any difficulties that they may encounter while registering with election officials or casting their votes."

"The decisions recognizing a right of access to criminal trials enjoyed by members of the general public do not support the assertion that the Constitution affords newspaper reporters a special right of access to polling places."Fischer also noted that the Post-Gazette failed to establish that an election official actually discriminated against reporters and that "perceived unlawfulness of the conduct permitted in other counties does not change constitutional formula."

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