Wisconsin think tank appeal denied by Supreme Court, keeping news service off Gov. media list
The U.S. Supreme Court declined to hear an appeal on Dec. 10, 2021, in a lawsuit brought by the MacIver Institute for Public Policy, a Wisconsin-based think tank, against Gov. Tony Evers after writers of its news arm were kept off his administration’s media advisory list.
Earlier this year, MacIver appealed a unanimous federal appeals court ruling that found MacIver News Service did not meet the criteria of a “bona fide news organization,” sending the case to the nation’s highest court. The denial to hear the appeal keeps in place Evers’ policy to keep MacIver from attending the governor’s press briefings.
“The First Amendment does not grant unlimited access to governmental events or facilities. Instead, where the government applies selective criteria to determine who may access the event or facility, those access determinations will be upheld as long as they are reasonable and viewpoint-neutral. Under this Court’s precedents, this rule applies equally to all—the public as well as members of the press,” wrote Attorney General Josh Kaul and Assistant Attorney General Gabe Johnson-Karp, who represented Evers in the case, in a brief.
"As this case ends, two things remain clear: the MacIver News Service is run by award-winning journalists, and politicians should not censor their news coverage by hand-picking who covers them," said Daniel Suhr, managing attorney at the Liberty Justice Center, who represented MacIver in a written statement, according to the Milwaukee Journal Sentinel.
Federal judge rules Wisconsin gov can bar think tank’s news service
A federal judge ruled on March 31, 2020, that Wisconsin Gov. Tony Evers can keep the news arm of a conservative think tank off his administration’s media advisory list, saying it doesn’t meet the criteria of a “bona fide news organization.”
MacIver Institute for Public Policy sued in August 2019 on behalf of MacIver News Service, saying its reporters were barred from a press briefing in February of that year and removed from the governor's media advisory list because of its viewpoint. MacIver pointed out that it was on the previous administration’s media advisory list and its reporters were credentialed by the Wisconsin State Legislature.
In his ruling, U.S. District Judge James Peterson rejected MacIver’s arguments that its constitutional rights to free speech, freedom of the press and equal access were being violated, saying the outlet could still report on the governor, the Wisconsin State Journal reported.
Peterson upheld the governor’s view that MacIver is not a news organization, a point MacIver President Brett Healy said was wrong, according to Courthouse News Service.
“Plain and simple, Judge Peterson just missed this,” Healy said. “Now, more than ever, it is vital that the governor stop blocking MacIver and that all news sources have fair and equal access to information and briefings.”
The MacIver Institute for Public Policy, a Wisconsin-based think tank, sued Governor Tony Evers on Aug. 6, 2019, alleging that his office discriminated against MacIver’s News Service when excluding it from the administration’s media advisory list.
According to the complaint, the MacIver News Service and its reporters are credentialed by the Wisconsin State Legislature to work as part of the Capitol press corps, and regularly interview state legislators and public officials.
The News Service was on the previous administration’s media list, the institute’s lawyer Daniel Suhr told the U.S. Press Freedom Tracker. When Evers took office, News Director Bill Osmulski and his former colleague Matt Kittle asked to be added to the new list. According to the complaint, they received no response and were never added to the list of approximately 1,000 local, state and national reporters and outlets.
The complaint also details the barring of MacIver reporters from a press briefing on Feb. 28, 2019, to which 26 members of the Capitol press corps had been invited. Kittle and Osmulski attempted to RSVP and arrived at the designated time, but were not permitted to attend as they were not on the invitee list.
Suhr told the Tracker that on April 4 he sent a letter to Evers’ office stating that the administration had violated the News Service’s First Amendment Rights and asking for the reasoning behind excluding the outlet.
A few weeks later, the governor’s legal counsel responded that Evers’ communication’s office “invites some journalists to limited access events, such as exclusive interviews, on a case-by-case basis using neutral criteria, namely newspaper circulation, radio listenership, and TV viewership.”
The News Service subsequently filed a public records request, Suhr said, seeking any documentation outlining the “neutral criteria” used by Evers’ staff. According to the complaint, Evers’ staff denied the request based on attorney-client privilege.
The MacIver Institute then filed their lawsuit against Governor Evers in August, alleging he violated its staffers’ constitutional rights to free speech, freedom of the press and equal access. The Institute also motioned for a preliminary injunction from the court that would force Evers’ office to add the News Service to the media advisory list before a ruling is reached in the case.
In its write-up of the suit, The Associated Press reported that governors from both parties have held similar briefings in the past, and that such briefings have typically been open only to certain invited reporters, not the entire press corps.
The AP also published a statement by Evers’ spokeswoman, Melissa Baldauff, that Evers believes strongly in a “fair and unbiased press corps” and remains committed to openness and transparency.
In a brief in opposition to the injunction, Evers’ counsel argued that the existing media list is comprised of journalists and news organizations that “meet criteria which focus on whether the requestor is a bona fide press organization,” and that the MacIver News Service does not.
A memo dated June 26 from the governor’s Office of Legal Counsel was filed alongside the brief, outlining the criteria used to determine whether a journalist or outlet is “bona fide.” The factors listed are based on the standards used by the Wisconsin Capitol Correspondents Board and the US Congress, and include in part:
- Is the petitioner employed by or affiliated with an organization whose principal business is news dissemination?
- Is the petitioner a bona fide correspondent of repute in their profession, and do they and their employing organizations exhibit the following characteristics?
- Both avoid real or perceived conflicts of interest;
- Both resist pressures from advertisers, donors, or any other special interests to influence coverage;
- Is the petitioner or its employing organization engaged in any lobbying, paid advocacy, advertising, publicity or promotion work for any individual, political party, corporation or organization?
The brief asserts that the Governor’s office concluded that the MacIver News Service does not meet these criteria.
“The MacIver Institute is not principally a news organization. On its website, it characterizes itself as ‘a Wisconsin-based think tank that promotes free markets, individual freedom, personal responsibility and limited government,’” the brief reads. “The organization’s ‘news’ branch makes no effort to distinguish itself from the overall organization mission.”
In response to these claims, Suhr told the Tracker that the MacIver Institute is a 501(c)3 and therefore legally barred from engaging in political activity, and the Institute is not registered as a political lobbyist. Suhr asserted that news with a perspective has become commonplace in the new media environment, and doesn’t inherently delegitimize the reporting such outlets produce.
“When government sets up criteria for media, it’s easy to default to this old-school, traditional criteria, to impose requirements like ‘broadcast to a certain number of households,’ or to require that you be a print news outlet,” Shur said, referencing the case of Sam Toll in Nevada. “To some extent what the governor’s office has done here is they defaulted to criteria that were designed for an old media age, and I think they did that to justify their decision after the fact to exclude my client.”
According to the complaint, if the governor’s office had adopted the criteria set by the state legislature, MacIver’s journalists would have qualified as they are already credentialed for the Capitol press corps.
“The new neutral criteria are no salvation: they were not developed openly, are not applied equally, do not permit an opportunity for journalists to show their bona fides, exclude legitimate news outlets besides MacIver, and violate the Constitution,” the complaint states.
The Governor’s office did not respond to the Tracker’s calls or emailed requests for comment.
First Amendment experts told the AP that MacIver appears to have a strong case, drawing a parallel between MacIver’s exclusion and President Donald Trump’s attempt to bar CNN reporter Jim Acosta. Neither the attempt to ban Acosta in 2018 nor the White House’s attempt to suspend correspondentBrian Karem in 2019 were upheld.
Robert Dreschel, a media law expert and journalism professor at UW-Madison, said it appears Evers’ office had no standards or guidance in place when MacIver was denied access. “That’s very troublesome,” Dreschel said.
Shur told the Tracker that he and his clients are still awaiting a ruling on their motion for a preliminary injunction, and that a tentative trial date has been set for early 2021.
“This case isn’t just important to MacIver, it’s not just important to journalists: it’s important to all of us in America because we all have a stake in a healthy First Amendment and we all have an interest in ensuring an active, vigilant press corps that insists on the transparency and accountability we need from our government to make sure that our democracy functions.