On Wednesday, Amy had a post on a Senate Judiciary Committee hearing on a proposed constitutional amendment to permit greater campaign finance regulation.  We covered the hearing because the purpose of the amendment is to overrule several recent Supreme Court decisions, and to block later similar decisions in the future.  Like our recent posts on Justice Stevens’s testimony in the Senate, Amy’s post is part of our effort to cover congressional developments that are closely related to the Court.

Amy went to the hearing.  Or at least she tried.  She got there well before the hearing started, but there was a line.  Dozens of Hill interns had gotten there first.  So the Committee room was full.  She waited, but only got in once others in the audience left; by that point, the hearing was already half way over.  In the meantime, several credentialed reporters arrived at the last moment or during the proceedings and took one of the seats reserved exclusively for the press.

Amy’s post nonetheless deals with the whole hearing.  That is because she then went back to her office and watched the parts she missed online.  So it took substantially more of her day to produce her report than credentialed media had to spend.  And if noteworthy news had broken while she was outside in the line with the interns, she would have missed it.

It is also true that Amy could have gone straight to a public overflow room where the hearing was broadcast, which is the same as watching the hearing online.  But there is a reason that reporters go to the hearing room.  You see much more of what actually happens.  Amy’s post describes how there were protesters with tape over their mouths, and how some advocates had signs.  That comes from the time she was actually there.  Reporters are also much more likely to have the chance to talk with the witnesses and senators.  Indeed, if you are not a credentialed reporter, you may be deprived of the chance to talk to the senators at all.

There are other examples.  Roll Call (which has a representative on the Standing Committee that has decided to revoke our press pass) did a story which noted that a protester was removed from the hearing room.  The story in The Washington Post (which also has a representative) described how Senator Reid departed from his prepared testimony, which reporters in the room had at the time.

This situation seems to be a good illustration of why we need and deserve a press credential.  Amy’s post reports on what happened over the course of a multi-hour hearing on an important issue.  Yet she was at a genuine disadvantage.

The development of inexpensive publishing platforms makes it much easier now for people who are experts in a subject, but are not part of traditional news organizations, to engage in journalism.  SCOTUSblog is a hybrid.  We are subject matter experts, but we are set up as a news organization with strict editorial standards and separation from my work as a lawyer.  We are trying to cover newsworthy events and issues that are directly related to the Supreme Court, including in the Senate.  And we are doing it as journalists do.  For an illustration, compare Bloomberg’s story by Kathleen Hunter (a member of the Standing Committee, who presumably took one of the seats reserved for journalists) with Amy’s post.  Objectively, they report on the same thing in the same way.

But the Standing Committee seems committed – having previously granted us a credential – to reaffirm its decision revoking our pass.  In listening to our appeal, which the chair labeled a “hearing,” the Committee members carefully divided up materials that they could use in an effort to undermine our qualifications.  (My favorite by far is that, unbeknownst to us, the Gallery’s staff director came to our office to take pictures of our signage and doors.)  No member of the Committee even acknowledged the recognition by others that the blog is engaged in high-quality journalism.  The closest it came was the chair’s firm statement that the Committee had a duty not to bow to “public pressure.”  That seems to miss the point.

The result of the Standing Committee’s interpretation of its rules will, unless overturned, cause the Gallery to function as sort of an exclusionary guild.  That isn’t an insult.  There are lots of guilds, and there always have been.  Lawyers famously block para-professionals from doing legal work (which would reduce the costs of legal services) on the theory that only a law degree can provide the necessary training.

But there is a big difference here.  A group of reporters has been given the odd responsibility to allocate a very important public resource:  special access to the part of the government they cover.

Quoted in Adam Liptak’s Sidebar column­­ for The New York Times on Tuesday, the chair stressed the Committee’s rule that any applicant must be editorially independent from any entity that is “not principally a news organization.”  In applying that standard, they must be diligent, because it is important that the Gallery not be perceived as a vehicle for lobbying Congress.  But to be clear, here are some examples of entities that this Committee has found to be sufficiently independent of non-news organizations to warrant a press pass, while we do not:

  • Several credentialed organizations are government agencies:  Xinhua News Agency, the official press agency of the People’s Republic of China; Saudi Press Agency, an organ of the Saudi Ministry of Information; Itar-Tass News Agency, the central information agency of Russia;  Akahata, the official paper of the Japanese Communist Party; and Notimex Mexican News Agency, which has an executive editor appointed by the President of Mexico and a governing board of representatives of five government agencies.
  • Several credentialed organizations are affiliated with commercial businesses directly related to the subjects they cover:  Energy Daily has several credentialed reporters, and it is owned by a substantial provider of energy consulting services, IHS, Inc.; LRP Publications has credentialed reporters, and also puts on trade shows and conferences; MLEX has credentialed reporters, and provides clients with “Market Insight” and “Predictive Analysis of Regulatory Risk.”

How can it be that a state-sponsored news organization gets a credential despite the requirement of strict editorial independence?  That’s not clear.  But the Committee has issued a set of unpublished guidelines  (page 2 of the hearing materials) to permit it, so long is “the application [sic] is a fulltime [sic] journalist.”

The purpose of the guidelines is to respond “to the changing nature of the news business,” by “allowing for the inclusion of non-traditional media.”  But the Committee seems intent on interpreting its standard in a way that gives its members extraordinary power to exclude – and in particular to exclude an emerging model of competitors.  That result may not be intentional.  The dilemma is that, in deciding who qualifies, the Committee members are very apt to think that journalists are people who do essentially what they do, essentially as they do it.  Note that the only requirement for the state-sponsored publications is that the applicant is a full-time journalist.  The Committee also credentials a freelance gossip columnist and a book self-publisher, because they fit the model of the Committee’s own members, notwithstanding that it seems likely that we’re providing the public more of the kind of information that the Gallery ostensibly exists to facilitate.

Because there is an array of emerging media that does not look like the Committee members, they seem unable to recognize that we deserve the same respect and treatment they do – obviously not more, but also not less.  By contrast, in supporting our application, the Reporters Committee for Freedom of the Press, joined by several news organizations, recognized that there are other models.  So did the jurors who gave us the Peabody, the Sigma Delta Chi Award for Excellence in Journalism, and the National Press Club Awards.  Respected journalists have criticized the revocation of our pass in harsh terms.

In denying us credentials, the view of the Committee is apparently that we create a greater risk of entanglement of journalism and other activities than state-sponsored news organizations.  But the fact that Russia, China, and Saudi Arabia all have paid congressional lobbyists suggests that they have greater interest in the outcomes of activities in Congress than we do.

We do not in any way implicate the concern with lobbying the Senate that underlies the Gallery’s rules defining credentialed journalists.  No employee of the blog has lobbied the Senate on anything, ever.  I have appeared as a witness in the Senate on only one issue, which involves the media:  cameras in the courtroom.

We also have not been able to identify any additional policy we could adopt that would do a better job of separating the blog from my law firm.  No one employed by the blog can report on any case in which the firm has any role.  And particularly important here, nothing that happens in the Senate affects my law practice.  Put otherwise, I haven’t ever seen anyone ever explain how my relationship with my law firm affects the independence of the blog’s coverage of the Senate.

It is true that I have two jobs.  A lot of people do.  Here, my job as someone who has practiced in front of the Supreme Court for fifteen years helps me run a news organization related to the Supreme Court.  And I have to have two jobs.  If I didn’t, we could not make enough money to keep the blog going.  It survives financially because I do not take a salary from it.  And that is going to be a recurring scenario:  subject matter experts are increasingly creating specialized publications that provide a public service.  If the Committee is going to forbid it, the Committee is going to exclude a lot of valuable emerging media.

Sensibly, the rules do not prohibit a publisher from having dual roles.  That Committee’s rules instead recognize that the applying organization can be affiliated with a non-news organization, so long as it is editorially independent.  (A good example is Kaiser Health News, which is affiliated with the Henry J. Kaiser Family Foundation.  And the Committee has another unpublished policy permitting foundation-supported media.)  But on the Committee’s view that the rule broadly requires almost complete separation, then the rule comes very close to meaning that it will credential only “news organization[s]” – i.e., the traditional media.

It is true that there are a very few things that I personally will not publish because doing so would violate my ethical duties as a lawyer.  That situation is more hypothetical than real, because it has come up maybe ten times in the blog’s eleven-year history.  It also relates only to what I report personally, and I do almost no reporting, and just as important: I’m not applying for a press pass, in which I have no interest.

But in any event, publishers constantly make decisions about what to publish based on what they believe is ethical.  That’s a good thing.  The public has an interest in knowing about a variety of national security secrets, the names of juveniles accused of crimes, and the victims of terrible assaults.  But publications regularly make judgments not to publish those things when some other social interest is substantially more important.

The fact that the Committee has revoked our press credentials and excluded us is obviously frustrating.  We would have hoped that the growth of a publication by specialists dealing with a complicated and sometimes mysterious institution like the Supreme Court would be welcomed.  It has been, by many people to whom we are eternally grateful.  But the one big exception seems to be the people who are assigned with the responsibility that matters:  granting or excluding us from equal access to the government.

If and when the Committee denies our appeal, I obviously hope that decision will be overturned.  Whether or not it is in our individual case, the policy it rests on inevitably will be.  In the meantime, we’ll do our best in the line with the interns.

Posted in Featured, What's Happening Now

Recommended Citation: Tom Goldstein, On the front lines of the battle over the press pass, SCOTUSblog (Jun. 5, 2014, 1:23 PM), http://www.scotusblog.com/2014/06/on-the-front-lines-of-the-battle-over-the-press-pass/