Seventh Circuit OKs Wisconsin Governor’s Limit on Press Access

The Seventh Circuit agreed with a federal judge that Wisconsin’s Democratic governor did not discriminate against a conservative think tank when he excluded it from his press list.

Wisconsin Gov. Tony Evers addresses a joint session of the Legislature during his 2019 State of the State speech. (AP Photo/Andy Manis, File)

CHICAGO (CN) – Wisconsin Governor Tony Evers does not have to allow a right-wing think tank access to his press conferences, a federal appeals panel affirmed Friday.

The conservative John K. MacIver Institute for Public Policy sued the Democratic governor in 2019, claiming the organization’s opposing viewpoint was to blame for reporters from the news section of its website being barred from attending Evers’ events.

Evers said his office simply had to limit press at events due to security and capacity issues, and that it had set up a set of neutral criteria similar to those used by Congress to determine who would be invited.

U.S. District Judge James D. Peterson, a Barack Obama appointee, granted a summary judgment in favor of the governor last year, writing in an opinion denying an injunction that “an Evers press conference is a nonpublic forum, to which Evers may restrict access using reasonable, viewpoint-neutral criteria.”

During oral arguments last October for its appeal in the Chicago-based Seventh Circuit, MacIver Institute attorney Daniel R. Shur of the Liberty Justice Center said that while he agreed the government had a right to use criteria for press access, “the criteria have been applied in a way that specifically excludes MacIver.”

“The governor has discriminated against a particular news outlet where he said ‘you guys and only you guys cannot come to my press conferences,’” Shur added.

“One of the criteria is involvement with an established news organization,” Wisconsin Assistant Attorney General Gabe Johnson-Karp countered during arguments. “What we’re looking at is fundamentally, is this organization principally a news organization? Do they avoid conflicts of interest?”

“The governor’s office concluded that the MacIver Institute…did not qualify under the governor’s media access criteria,” Johnson-Karp added, pointing out that the organization’s advocacy website and news tab are indistinguishable.

A three-judge panel of the Seventh Circuit unanimously affirmed summary judgment for Evers in a 21-page opinion Friday.

U.S. Circuit Judge Illana D. Rovner, a George H.W. Bush appointee, authored the opinion and wrote that the appellate judges recognize the importance of a free press and “therefore delve into any case alleging suppression of that core right with seriousness and care. Like all rights enumerated in the Bill of Rights, however, it is not absolute.”

“At the end of the day, we can conclude that, when we look at expressive activities—whether pure speech, press, or assembly—location matters,” Rovner said.

Neither the First nor 14th Amendments grant press special access to information not available to the public, the judge pointed out. When the governor holds a limited attendance press event in a nonpublic forum, he can choose how many reporters are there, the panel ruled.

“We cannot fathom the chaos that might ensue if every gubernatorial press event had to be open to any ‘qualified’ journalist with only the most narrowly drawn restrictions on who might be excluded,” Rovner said. “And no one’s needs would be served if the government were required to allow access to everyone or no one at all.”

The court ultimately found that Evers’ media-access criteria are reasonable and “not an effort to suppress MacIver’s expression because of its viewpoint.”

“MacIver has not provided any evidence that the governor’s office manipulates these neutral criteria in a manner that discriminates against conservative media,” Rovner concluded. “Because we have found no evidence of viewpoint discrimination under any First Amendment test with which we might view the claim, we affirm the district court’s grant of summary judgment for Governor Evers.”

Rovner was joined on the panel by U.S. Circuit Judges Michael Y. Scudder Jr. and Daniel A. Manion, appointed by Donald Trump and Ronald Reagan, respectively.

“The journalists at MacIver have the same constitutional rights as every other journalist,” Shur told Courthouse News after the panel’s decision. “We are evaluating our options to appeal.”

The governor’s office did not respond to a request for comment.

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