April 13, 2021 – Reporters from the MacIver Institute for Public Policy sued Wisconsin Gov. Tony Evers, alleging they were denied access to a press event because of their organization’s viewpoint. Recently, a federal appeals court rejected that claim.

In John K. MacIver Institute et al. v. Evers, No. 20-1814 (April 9, 2021), a three-judge panel for the Seventh Circuit Court of Appeals “found no evidence of viewpoint discrimination under any First Amendment test with which we might view the claim.”

Thus, the panel affirmed the decision of the U.S. Court of Appeals for the Western District of Wisconsin, which previously granted summary judgment to Evers.

Excluded from Press Event

Matt Kittle and William Osmulski were reporters for MacIver News Service when they were denied access to the governor’s invite-only press briefing, historically “off-the-record,” non-public events to provide background information on major initiatives.

At the briefing, Gov. Evers previewed major initiatives in his 2019 budget address. Evers’ communications team excluded MacIver News Service – and other organizations seeking access – based on a specific selection criteria adapted from standards established by the Wisconsin Capital Correspondents Board and the U.S. Congress.

MacIver was excluded, the Governor explained, because that organization “is not principally a news organization” and “their practices run afoul of the neutral factors” set forth in a memorandum that outlined the criteria for granting press access to events.

MacIver sued on constitutional First Amendment grounds. The principal argument was that the governor discriminated against MacIver News Service based on the views of its affiliate, MacIver Institute, a self-described “Wisconsin think tank that promotes free markets, individual freedom, personal responsibility and limited government.”

Federal District Judge James D. Peterson ultimately ruled in favor of Gov. Evers, concluding the press briefings were not open to the public and the criteria used to accept or exclude media were reasonable and viewpoint neutral.

No Evidence of Viewpoint Discrimination

The three-judge panel for the Seventh Circuit Court of Appeals affirmed the district court’s decision, noting that “the amount of access to which the government must give the public for First Amendment activities, and the standards by which a court will evaluate limitations on those rights, depends on the forum at issue.”

“We have the least tolerance for restrictions on First Amendment freedoms in those settings, and the state may only regulate content if it can show that the regulation is necessary to serve a compelling interest and that it is narrowly drawn to achieve that end,” wrote Judge Ilana Rovner.

The panel noted that restrictions are generally limited to time, place, and manner of expression and that is also true when the government creates a “designated public forum” by opening public property for use by the general public.

In this case, however, the panel concluded that the governor’s invite-only press briefing was not held in a designated public forum – it was a non-public forum.

“The plaintiffs in this case want to attend a limited-access press conference – an event that is not open to the public and not held on government property dedicated to open communication,” Judge Rovner wrote.

“These limited-access press conferences are open only to journalists who meet the content-neutral criteria, and then, only the limited number of reporters who can be accommodated after taking into account space constraints and security concerns.”

The panel explained that under these circumstances, a decision to restrict press access to a non-public forum must be reasonable, and not subject to strict scrutiny.

“We find that the Governor’s media-access criteria are indeed reasonable and not an effort to suppress MacIver’s expression because of its viewpoint,” Judge Rovner wrote.

The governor’s criteria for determining access to the invite-only press briefing – in addition to security and space concerns – prioritized organizations with a primary focus on news dissemination to wide audiences and without real or perceived conflicts or ties to special interest or lobbying groups, the panel noted.

“Similar standards are also used by other governmental bodies such as the United States Congress,” Judge Rovner wrote.

“There is nothing inherently viewpoint-based about these criteria, and MacIver has not provided any evidence that the Governor’s office manipulates these neutral criteria in a manner that discriminates against conservative media.”

“In fact, the list includes media outlets traditionally viewed as conservative leaning such as the Washington Times, Wall Street Journal, Fox News, and Washington Examiner.”

The panel rejected MacIver’s argument that those national news organizations have limited local presence and they would not likely cover the governor’s events.

“Wisconsin politics and policy are frequently the subject of national news media, as we saw during the 2020 elections,” explained Judge Rovner.

“MacIver has not provided sufficient factual support in the record demonstrating that the Governor discriminated against MacIver on the basis of its viewpoint.”

The panel noted that Wisconsin Public Policy Forum, a liberal think tank, was also excluded from the governor’s press briefing.

No Special Right of Access

MacIver appeared to argue that the press has access rights that are afforded greater protection than the public, under the freedom of press clause of the First Amendment, regardless of the forum analysis that courts employ in First Amendment cases.

“The First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally,” Judge Rovner wrote, citing a 1977 decision from the U.S. Supreme Court, as well as Seventh Circuit precedent.

“MacIver’s argument that the First Amendment provides a guarantee of ‘equal access’ among members of the media rests on cases that pre-date modern forum analysis or cases with such unique facts as to have no relevance here.”

The panel noted that the government may distinguish between members of the press through generally applicable regulations. “Here, a rule of general application applies to MacIver: in situations where the state does not open its governmental property to the general public, those who wish to attend functions in state facilities must be invited based on reasonable and content-neutral criteria,” Judge Rovner wrote.