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Government decides who’s a journalist

By M.D. Kittle 

Wisconsin Spotlight | Nov. 4, 2020

MADISON — Who decides what constitutes a news organization? Politicians do. 

At least that’s what Gov. Tony Evers believes. His attorney argued as much during oral arguments last week in front of the U.S. Court of Appeals for the 7th District in the case of the John K. MacIver Institute for Public Policy vs.Tony Evers.

The nationally watched lawsuit was filed by the Madison-based conservative think tank and Capitol news outlet last year after  Gov. Tony Evers’ office barred MacIver journalists from a press briefing. All members of the Capitol press corps, with the exception of MacIver, were admitted to the briefing on Evers’ first budget proposal hours before its release. 

(Full disclosure: This reporter, a journalist with MacIver at the time, was one of two journalists denied access and was originally named as a nominal plaintiff in the federal lawsuit). 

MacIver also was denied access to the administration’s media advisory list. The list contains approximately 1,000 local, state and national reporters and news outlets, according to the lawsuit. 

While MacIver News Service and its lead reporter Bill Osmulski have been credentialed members of the Capitol press corps in good standing for a decade, Evers’ press team came up with a set of criteria to keep out conservative journalists unfriendly to the administration, according to the lawsuit. 

A federal district court earlier sided with the administration’s argument effectively that it could lock out think tanks like MacIver that advocate for policy. MacIver appealed. 

In oral arguments, Evers attorney argued that it’s best left up to the “political branches and the political process” to decide these types of membership questions. 

“The courts shouldn’t be getting into this task of deciding who constitutes media and what types of government events or governmental information the so-called media would be, as a constitutional matter” allowed access to, Gabe Johnson-Karp, assistant attorney general with the Wisconsin Department of Justice, told the three-judge panel. 

What if Evers is discriminating against a news outlet and curtailing the dissemination of information? Well, then the people will tell decide, Johnson-Karp argued. 

“If enough people raise a concern that they want the governor’s press events thrown open, then the governor might respond to that,” the attorney said. 

The governor might respond to that. That notion seems to run counter to the First Amendment. 

So the politicians, not the courts, should decide questions involving freedom of the press, the state Attorney General’s office argues. 

MacIver attorney Daniel Suhr said it was interesting the case was being heard the day before Halloween. 

“What’s truly scary is the governor can target award-winning professional journalists for exclusion from the Capitol Press Corps based on their viewpoint,” Suhr told the appeals court judges. 

While the Evers administration’s media standards list asserts at its core viewpoint neutrality, several liberal news organizations have been granted membership to the administration’s media clubhouse, including the left-leaning Wisconsin Gazette and UpNorth News. New to the journalism landscape, they have been allowed full access to the administration perhaps because they are unapologetic apologists for the administration. 

The judicial panel asked some tough questions of both sides. Some frightening, and perhaps naive ones, too, like, could the Evers administration make a policy that prohibits access to exclusively online news outlets? 

“We appreciated this opportunity to make our case directly to the judges of the U.S. Court of Appeals,” Suhr said. “We remain confident in our legal arguments that the First Amendment’s free-press guarantee protects MacIver’s right to equal access to our government officials.”

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