This article was published by The Daily Signal on Aug. 22, 2019. It discusses the MacIver Institute v. Evers case filed by the Liberty Justice Center on August 6, 2019.
When two reporters showed up at the Wisconsin governor’s office in February for a press briefing on the new administration’s proposed budget, staffers turned them away.
Although the governor’s office didn’t formally invite the reporters, they were credentialed through the Wisconsin Legislature to cover government activities. They also emailed an RSVP to the governor’s staff.
The two reporters arrived at a conference room for the budget briefing at the designated time, but the governor’s staff said they weren’t on the RSVP list.
So, what gives?
Under the First Amendment’s prohibitions against government actions that inhibit “freedom of speech” and “freedom of the press,” shouldn’t all credentialed reporters be granted access to something as routine as an elected official’s budget briefing?
That’s what the MacIver Institute for Public Policy, a free-market think tank based in Madison, Wisconsin, argues in a lawsuit filed against Gov. Tony Evers, a Democrat who assumed office in January.
MacIver Institute’s suit claims the governor violated its right to equal protection of the laws and due process under the 14th Amendment.
At a time when the Trump White House’s every dealing with the press appears to be scrutinized, a Democrat governor’s attempts to exclude a conservative-leaning news organization, even as he continues to welcome left-leaning media outlets, garner little attention.
Brett Healy, president of MacIver Institute, told The Daily Signal in a phone interview that it appears Evers targeted MacIver News Service from the beginning of his administration Jan. 7.
“Back in January, we asked to be put on communication and notification lists, which is pretty standard,” Healy said. “But we came to find out through some of our friends in the media that we weren’t getting these notices.”
‘Stonewalled and Ignored’
A key turning point came Feb. 28, when the governor’s office invited 26 members of the Capitol press corps to attend the budget briefing but excluded MacIver News Service, according to the suit.
William Osmulski, MacIver News Service’s news director, and Matt Kittle, at the time a reporter for the news service, both were denied entry, the suit says.
“When they attempted to go into the conference room, the governor’s staff told them they weren’t on the list,” Healy said. “Then, they asked to speak with someone to resolve the issue and they were told they need to talk to someone on the governor’s staff in charge of communications, but that she was unavailable.
“After this, we continued to try to be put on media lists, but we were stonewalled and ignored and that’s when we decided to go to court to get our rights restored,” Healy said.
Kittle has left the organization, but the suit names Osmulski as the main plaintiff along with MacIver Institute.
The Daily Signal sought comment from Evers’ office about the suit’s allegations.
“Our administration provides many opportunities for both reporters and the public to attend open events with the governor,” Melissa Baldauff, the governor’s communications director, replied in an email, adding:
Gov. Evers is committed to openness and transparency in state government, and he believes strongly that a fair and unbiased press corps is essential to our democracy, especially now as Wisconsinites and all Americans are calling for accountability from elected officials who refuse to take action on gun safety reform, health care, and the hatred and violence borne of white supremacy.
Representatives of MacIver Institute have attended several of the governor’s official events, a communications staffer speaking on background told The Daily Signal, including a budget signing at the Capitol where a MacIver reporter was called upon to ask the first question.
“Consistent with previous administrations, we also provide additional opportunities for members of the media to access the governor and our team through one-on-one interviews and smaller group conversations,” the staffer said. “These opportunities serve the public well by allowing for a more robust, in-depth conversation.”
Changing of the Guard
Although it’s true that a representative of MacIver News Service asked the lead-off question at a press event, Healy said, its journalists didn’t receive the same formal invitation to that event, and to other ones, that went to colleagues at other media outlets.
“Because he doesn’t agree with our point of view, the governor thinks he has the right to exclude us,” Healy said. “But we are very happy with the support we have received from other press outlets and from across the political spectrum.”
Although the news service has been denied entry to only one event, it argues that it missed dozens of others because it doesn’t receive media advisories that other outlets get.
Evers, 67, assumed office in January after defeating two-term Gov. Scott Walker, a Republican, in last year’s elections.
The governor previously served as the state’s superintendent of public instruction, an elected position, from 2001 to 2009. He also worked as a school teacher, school administrator, and district superintendent.
Walker gained national attention shortly after his inauguration as governor in 2011 when he sought to limit collective bargaining for most public employees. The proposal drew large and boisterous protests from organized labor, and at one point Democrats in the state Senate left Wisconsin in an attempt to block the bill’s passage.
Walker ultimately prevailed and he went on to become the first incumbent governor to survive a recall election. He then was reelected in 2014 and briefly ran for the Republican nomination for president in 2016.
The election of Evers could mean big changes in public policy for Wisconsin, and the Democrat already has proposed repealing the state’s right-to-work law. MacIver News Service reported that Evers’ first budget amounts to a “political payback for big-spending unions” that helped him get elected.
MacIver Institute is part of the State Policy Network, an umbrella organization for state-level, free-market think tanks across the country. The institute was founded in 2008 and its news service has been up and running almost from the beginning, typically with at least two full-time reporters.
Healy credits Bill Lueders, president of the Wisconsin Freedom of Information Council, for taking a principled stand on behalf of First Amendment freedoms for MacIver and other news services. The council is a nonprofit, volunteer group based in Madison, Wisconsin, devoted to openness in government.
Lueders is also editor of The Progressive, a left-of-center magazine based in Madison.
The governor’s actions shutting out MacIver reporters are “legally questionable,” Lueders told The Daily Signal, and media access “should not predicated on whether someone in government thinks you are biased.”
Lueders drew a comparison between Evers’ targeting of MacIver with the decision last November by the Trump White House to suspend the press pass of Jim Acosta, a White House correspondent for CNN.
The Trump administration’s decision came after Acosta persisted in questioning the president during a press conference and had an altercation with a press aide when she attempted to retrieve a microphone.
CNN filed suit, but dropped the action after the White House restored Acosta’s pass.
“The point here is that it is not proper for the government to selectively exclude a reporter or news outlet on the basis of not liking that reporter or news outlet,” Lueders said. “That’s going too far.”
“It’s important to know that government officials have the right, and in fact, they exercise this right all the time, to be selective about who they give special access to,” he said. “But you can’t deny what would be considered routine access on the basis of not liking the organization or the reporter.”
‘You Guys Are Not Journalists’
MacIver Institute filed a motion Tuesday with the U.S. District Court for the Western District of Wisconsin to bar the governor from excluding its news service from “generally available press events and lists announcing such events.”
Liberty Justice Center, a nonprofit, nonpartisan public interest law firm based in Chicago, filed the suit on behalf of MacIver. Daniel Suhr, a senior attorney with the center, is dismissive of the arguments made by Evers and his staff in response.
“They’ve adopted two lines of comment in their responses so far,” Suhr said. “First, they say MacIver is welcome to participate on the same basis as members of the general public, which is essentially saying you guys are not journalists and we are not going to treat you like journalists. If that’s a fight they want to have, I say, ‘Great, let’s go to a judge.’ My clients are award-winning journalists who break stories.”
“Their second argument is to say that they believe in a fair and unbiased press corps, which is basically their way of saying, ‘MacIver is biased and we don’t want to let you into our press conferences.’ But they let in a number of people who are biased in their favor.”
The governor’s media list that excludes MacIver does include “outlets with decidedly left-leaning editorial stances,” according to the suit.
The list includes The Progressive magazine, Devil’s Advocates Radio, The Capital Times newspaper, the Democratic Party of Wisconsin, the offices of Democrat legislators, and “left-wing advocacy groups like One Wisconsin Now,” the suit says.
“The First Amendment exists to protect journalists who are challenging people in power,” Suhr said. “The First Amendment is there to protect the people who are asking tough questions and doing the investigative reporting to hold government accountable and bring transparency. This is the foundation of a free society.”
‘Look in the Mirror’
MacIver Institute “has a strong case,” in part because its suit involves political speech, Charles Glasser, a lawyer who teaches media ethics and law at New York University and the Newmark Graduate School of Journalism at CUNY, said in an interview with The Daily Signal.
“If you look at the history that led to the development of the First Amendment, before 1789 Sam Adams, Thomas Paine, Ben Franklin, and the other Founding Fathers lived under a death sentence for sedition and for saying seditious things,” Glasser said.
“They would have been hanged if King George III followed through. Its been held in cases all over that political speech has the highest degree of constitutional protection,” he said.
Glasser, who is also a legal adviser to The Daily Signal and former global media counsel to Bloomberg News, said liberals in Wisconsin and elsewhere should consider their criticisms of the Trump administration carefully before taking action against press organs with a conservative perspective.
“If the Democrats genuinely cared about the law, they would take a lesson from their own complaint regarding the removal of Jim Acosta’s press card at the White House,” Glasser said, adding:
Forget the ethics and morality. As a legal matter, Acosta was correct. His behavior with the president was a little out of decorum and self-serving. But by and large, the White House removed his credentials without any kind of due process and without any kind of rational basis, and they had to reinstate it. You would think the Democrats would learn if they are campaigning on a platform of ‘No one is above the law,’ they need to look in the mirror and consider what they argued during Acosta’s improper removal.
Suhr, the lawyer at Liberty Justice Center, said the “crux of the problem” with Evers and his office is that MacIver Institute has been left off the governor’s list for media advisories.
As a result, he told The Daily Signal, MacIver has “missed out on dozens of press conferences and gaggles.”
What It Takes
Glasser describes Evers’ decision to exclude MacIver as an “arbitrary and capricious” violation of the organization’s civil rights.
The Constitution sets a high bar for restrictions on free speech that lawyers refer to as “strict scrutiny,” Glasser said. The Supreme Court has said such restrictions must be “narrowly tailored” to the point where they address a “compelling interest,” he said.
“But in this case, the governor threw a blanket over the whole publication, so it’s constitutionally overbroad,” Glasser said. “It fails strict scrutiny.”
Lueders said he isn’t impressed with how Evers has handled his differences with the press.
“If Tony Evers has what it takes to be governor, he ought to be able to withstand the presence of a conservative media outlet,” Lueders told The Daily Signal. “The idea that he feels the need to shut them out is a real sign of weakness, and I think it reflects poorly on him.”