Judge rules in favor of Minnesota journalist barred from COVID-19 briefing calls

Scott Johnson, co-founder of the digital-only outlet Power Line, filed a lawsuit against the commissioner of the Minnesota Department of Health and the director of the department’s communications office after he said he’d been barred from accessing the department’s daily teleconference on April 28, 2020.

According to the suit, the MDH had started hosting daily press briefings in late February to field a rise in information requests concerning the COVID-19 pandemic and the department’s response. On April 9, Johnson, who did not reply to an email from the Tracker requesting comment, asked to be added to the MDH invite list for briefings and was granted access the following day. For the next couple of weeks, the suit states, Johnson was able to participate in the teleconference calls and submit follow-up questions over email.

The suit also claims that after responding to two of Johnson’s follow-up questions on April 27, communications director Michael Schommer forwarded the questions to members of Minnesota Governor Tim Walz’s office, stating, “Flagging as an FYI and for future discussion.”

The following day, allegedly under the direction and supervision of Commissioner Jan Malcolm, Schommer chose not to provide Johnson with access to the MDH Conference Line and his office did not respond to Johnson’s calls or emails, the suit claims.

According to the suit, a reporter for the Washington Free Beacon emailed the department asking how participants in the press briefings were selected and why the MDH had ceased communications with Johnson. Schommer responded, in part: “We routinely have so many journalists on the daily briefing call that we cannot field questions from all of them each day. To ensure that the journalists have a reasonable opportunity to get a question in we need to limit call participation only to professional journalists.”

Schommer’s response did not include the criteria by which the department evaluates whether an individual reporter or outlet is deemed “professional.”

Johnson filed his suit on May 28, claiming that his access was revoked due to the conservative viewpoint of his questions and reporting. Schommer and Malcolm contest that claim, stating that Johnson never lost access to the information contained in the briefings, as they were broadcast in real time. They also argued in court that the department elected to exclude Johnson not because of his viewpoint but to prioritize questions from larger and more-established media organizations.

The MDH did not respond to an email from the Tracker requesting comment as of press time.

On June 4, Johnson filed a motion for a preliminary injunction to provide him immediate access to the MDH conference line and ask that he be granted the opportunity to pose questions during the briefings.

Judge Donovan Frank denied Johnson’s motion on June 26, but found that Johnson had successfully argued that his access had been revoked in response to his viewpoint or the context of his questions, and therefore was in violation of his First Amendment rights. Frank also denied the defendants’ motion to dismiss the case.

In his decision, Frank wrote, “It seems that the whole matter could be resolved if the Department simply provided Plaintiff access to the MDH Conference Line, particularly considering the fact that all parties agree the Department is under no obligation to allow Plaintiff to ask questions or to answer any submitted questions.”

The Free Beacon reported that the MDH agreed to a settlement on Nov. 13 and to reinstate Johnson’s access to the COVID-19 press briefings.