Evers vs. the First Amendment

M.D. Kittle:

Nearly 10 months into is his first year in office, Gov. Tony Evers has compiled a woeful record on open government.

Now the Democrat’s administration is doubling down on a “deeply troubling” policy that is closing the door to even more members of the media.

Attorney General Josh Kaul, defending Evers in a First Amendment federal lawsuit brought by the MacIver Institute, argues that only what the administration deems to be “bona fide” journalists and news organizations are entitled to attend certain press events with the governor. The MacIver Institute, according to Kaul’s motion to dismiss the lawsuit, is not a “bona fide” news outlet. Never mind the fact that the conservative MacIver News Service’s reporters have been covering policy as credentialed members of the Capitol press corps for years.

“(T)he government is free to exclude individuals or groups so long as the limitations are reasonable and viewpoint neutral,” Kaul’s motion states.

Except they are not, according to MacIver’s lawsuit.

The complaint, filed in federal court, asserts the administration violated MacIver’s First Amendment rights by banning its news organization from a February briefing with the media on Evers’ budget proposal. I know that MacIver reporters were banned, because I was one of those reporters. MacIver asked to be included on the list of journalists covering the budget briefing. When the administration failed to respond, we showed up at the governor’s office, where we were denied access.

The lawsuit also alleges the governor’s press team refused to add MacIver News Service and its journalists to a “press list” that at one time included more than 1,000 email addresses.

Among those invited to Tony Evers’ exclusive club, left-wing political operative One Wisconsin Now, the Progressive, a Madison-based liberal publication, and the Democratic Party of Wisconsin.

Yet MacIver News Service, part of a free-market think tank, doesn’t make the cut because the parent organization engages in advocacy.

Evers’ arbiters of who is a bona fide journalist are themselves former officials with the Democratic Party and liberal activist organizations. The “gatekeepers” seem hardly nonpartisan judges of journalism.

Exhibit A, Melissa Baldauff, Evers’ communication director. Before taking the gig with the governor, Baldauff was a spokeswoman for the state Democratic Party.

This party hack sits in judgment of journalists. In a sworn statement, Baldauff declares that, “based on my experience with media and politics, the MacIver Institute engages in policy and lobbying.” MacIver does not lobby. It does advocate for free-market policies, as newspaper editorial boards across this country advocate for liberal government policies.

As proof that MacIver doesn’t fit into the Evers’ administration’s journalistic standards, Baldauff notes that the organization joined “44 other free market groups and individuals in urging the United States Senate to repeal all Obamacare taxes.” The horror! Certainly the First Amendment right to a free press can’t sustain such viewpoints, Baldauff suggests.

“In this case, the decision is being made by someone who herself is incredibly involved in politics and you end up in a problematic place where MacIver is denied access but someone like John Nichols (of the Progressive), who engages in much more explicit activity than MacIver, gets on the list because, from their perspective, he’s one of the good guys,” said Daniel Suhr, associate senior attorney for the Liberty Justice Center, the law firm representing MacIver.

What the latest court filing from Kaul, a Democrat, uncovered is that days after MacIver received the governor’s office’s list of acceptable media outlets through an open records request, the administration changed the rules and whittled down some of the members. The new policy actually doesn’t include rules at all, but factors or standards the governor’s office deems necessary to meet to be a real, bona fide journalist.

“The new criteria are just putting lipstick on a pig,” Suhr said. “You have the same problem at the end of the day.”

“And the factors … create way too much potential of a judgment call in favor of a liberal news outlet or commentator to get a break and for a conservative outlet, an outlet that challenges the administration or asks too many tough questions, to be denied access,” Suhr added.

But now Evers’ keepers of “the list” have kicked out other news organizations, like the Jewish Chronicle, Suhr said. Even the new Wisconsin Examiner, a liberal apologist website, is excluded, but only because the policy says the publication hasn’t been around long enough.

Evers has been knocked several times for his transparency troubles. The Wisconsin Institute for Law and Liberty in a review of the administration’s compliance with the state’s open records law found its processes “disorganized and dysfunctional” — failing to live up to the recognized standards of Evers’ predecessor, Republican Gov. Scott Walker.

Suhr, who served as legal counsel for Walker, said the former governor opened up his press and public events to all media organizations, even the ones that wanted to see him run out of office.

The attorney said the MacIver lawsuit is about breaking down the gates Evers and his team have erected around the First Amendment.

“Ultimately, this is a fight for the First Amendment. Freedom of the press is only a robust right when people step up to defend it,” Suhr said. “Every journalist and, really, every citizen has a stake in assuring the First Amendment is robust and protected for each and every one of us.”

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