Wisconsin Think Tank Fights Press Blacklisting at Seventh Circuit

Wisconsin Gov. Tony Evers holds a news conference in Madison on Feb. 6, 2020. (Steve Apps/Wisconsin State Journal via AP, File)

CHICAGO (CN) — Wisconsin’s governor is unfairly barring a conservative think tank’s journalists from attending press events because of the group’s political views, its attorney argued in the Seventh Circuit on Friday.

The Madison-based John K. MacIver Institute for Public Policy, which refers to itself as “the free market voice of Wisconsin,” says Democratic Governor Tony Evers began excluding it from his press list as soon as he took office in January of last year.

The organization sued Evers in August 2019 after journalists writing for the news section of its website, MacIver News Service, were denied access to a press conference on the new state budget.

“As a result of this exclusion, it has been practically impossible for the MacIver journalists to attend the vast majority of the governor’s public events and press conferences,” the complaint states. “Briefings like this are important for journalists to thoroughly and accurately report the news in a timely manner, especially in a competitive news business.”

The organization claims the only reason Evers does not want its writers at his events is their right-leaning conservative stance, and other outlets that are left-leaning are allowed in.

“A public official may not target particular news media outlets or journalists for exclusion from access made generally available to other media,” the lawsuit states.

The governor argued that his office adopted neutral criteria to choose which media outlets were on his press list, and that its primary function as a think tank rather than news source means MacIver doesn’t qualify.

U.S. District Judge James D. Peterson, a Barack Obama appointee, agreed, saying in his March opinion denying an injunction that “an Evers press conference is a nonpublic forum, to which Evers may restrict access using reasonable, viewpoint-neutral criteria.”

Peterson said that the governor’s press credentialing system is the same one used by Congress and the Wisconsin Legislature and Evers did not use that system in a discriminatory way against MacIver.

“MacIver has adduced no evidence that Evers grants or denies press access unreasonably or on the basis of the journalist’s viewpoint,” the judge wrote.

Peterson granted summary judgment in favor of the governor in April and MacIver appealed to the Chicago-based Seventh Circuit.

Anuj Desai, Voss-Bascom Professor of Law at the University of Wisconsin Law School, said the emphasis of the case “is really on the equal part of access rather than just access.”

“Nobody is stopping the press from doing anything by not letting somebody into a press briefing. All they’re doing is affirmatively providing people in the press briefing with more,” Desai told Courthouse News. “The government doesn’t have to have a press briefing at all.”

The First Amendment protects the press from being barred from publishing but does not require that the government feed them information.

Desai said if the government does decide to hold press events, “practically, it has to be limited somehow.”

“The government needs to have some kind of set of rules, and that set of rules under the First Amendment has to be both reasonable and viewpoint neutral,” Desai added. He said there is nothing inherently wrong with saying “as a condition of being able to come into this press briefing, you need to satisfy certain criteria.”

Evers’ criteria can include requiring attendees to work for bona fide news outlets, as long as that criteria is applied equally to everyone.

“We don’t have in the law, generally speaking, any definition of what a news organization is, and the reason is partly connected to the First Amendment,” Desai said. “We don’t think the government has the right to determine who is and who isn’t a journalist.”

The professor said MacIver’s core argument is that the governor was exercising his discretion by excluding it as a news organization because it is conservative. The think tank would have to find a similar organization that has liberal views and show that Evers did allow their journalists into his events, Desai added.

During oral arguments in the Seventh Circuit on Friday, U.S. Circuit Judge Ilana D. Rovner, a George H.W. Bush appointee, pointed out that “no one is forbidden to report on the events” that Evers is holding.

MacIver’s attorney Daniel R. Shur of the Liberty Justice Center in Chicago agreed, but said “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 also agreed that the governor has every right to use neutral criteria to limit numbers, such as circulation or “sticking to professional journalistic norms.”

However, “I think we’ve shown pretty clearly that the criteria are still being applied unfairly,” he said. “The criteria have been applied in a way that specifically excludes MacIver.”

“I just don’t see any evidence in the record of that,” said U.S. Circuit Judge Michael Y. Scudder Jr., a Donald Trump appointee, adding that the governor has not included members of any liberal think tanks on his press list.

“Part of that is because there’s not another think tank in Wisconsin that does what MacIver does,” Shur answered.

But, he went on, even newspapers engage in political advocacy by publishing opinion pieces and endorsing certain candidates and legislation.

“If the problem for MacIver is that it’s a think tank that does policy and news, why is that different from a newspaper with an editorial page?” he asked.

“This is an extreme manageability problem,” countered Gabe Johnson-Karp, assistant attorney general for Wisconsin. “Courts shouldn’t be getting into who counts as media.”

Instead, he said, the governor had to decide “how to draw the lines” for his own press list.

“One of the criteria is involvement with an established news organization,” Johnson-Karp said. “What we’re looking at is fundamentally, is this organization principally a news organization? Do they avoid conflicts of interest?”

“On that basis, the governor’s office concluded that the MacIver Institute…did not qualify under the governor’s media access criteria,” he said, adding that the organization’s advocacy website and news tab are indistinguishable.

Johnson-Karp pointed to the district judge’s comment that the closest comparative organization on the other side of the political spectrum would be the Wisconsin Policy Forum, which was also excluded from Evers’ press list.

“The record here just doesn’t show the discrimination,” he said.

Scudder seemed to agree, noting that if a similar group was allowed into the governors’ press events, that would be a different lawsuit altogether.

Senior U.S. Circuit Judge Daniel A. Manion, a Ronald Reagan appointee, rounded out the panel. The judges did not say when their ruling will be issued.

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