The MacIver Institute, a free-market non-profit organization, is suing Gov. Tony Evers for excluding its MacIver News Service journalists from press briefings and refusing to provide them with press material that is shared with other news outlets.
The suit claiming First and Fourteenth Amendment violations was filed in federal court last week.
According to MacIver, the Evers administration has refused to include MacIver News Service reporters on invitations to press events, which makes it harder for the news outlet's reporters to stay up-to-speed on the governor's activities. The Evers administration also blocked MacIver journalists from participating in a budget press briefing that was open to other journalists, the lawsuit alleges.
"Gov. Evers should not block MacIver journalists from public press briefings and limit their access to government activities," Brett Healy, president of the MacIver Institute, said. "Our reporters have the same constitutional rights as every other journalist in Wisconsin, and we have a duty to keep the public informed about what's happening in state government."
Healy said the MacIver News Service has approached the administration numerous times in attempts to rectify the situation amicably, but its efforts have been ignored. On April 4, the institute says the MacIver News Service hand-delivered to administration officials a letter from attorneys for the journalists, demanding that MacIver reporters receive the same access to public press events and information as journalists from other news outlets.
Even after the letter, however, the Evers administration persisted in its course of conduct, continuing to exclude MacIver journalists from media advisories and press briefings, the institute said.
"We now have no option but to sue," Healy said. "A free and vibrant press is critical to democracy, and to ensuring the people of Wisconsin are informed and engaged on what's happening in their state. We hope to quickly resolve this issue, not just so that our journalists can go about their important work but to ensure no future governor engages in the same unconstitutional practices."
The MacIver Institute is represented by the Liberty Justice Center, a public interest law firm based in Chicago.
Daniel Suhr, associate senior attorney at the Liberty Justice Center, said the First Amendment guarantees freedom of the press.
"Courts nationwide have held this means government officials can't pick and choose which reporters cover their public events," Suhr said. "Gov. Evers has spent the past six months excluding the MacIver journalists from his press conferences and briefings. That's wrong. Our country relies on vigilant watchdogs from the news media, and government officials can't duck hard questions by barring anyone who might ask those questions in a briefing."
While MacIver has been barred from press invitations, Evers's invitation list does include multiple left-leaning contacts, MacIver says, including The Progressive Magazine, Devil's Advocate Radio, The Capital Times newspaper, the Democratic Party of Wisconsin, Democratic legislative offices and left-wing advocacy groups such as One Wisconsin Now.
In an email to members and supporters of The Wisconsin Freedom of Information Council, as well as to some media, FOIC president Bill Lueders expressed concern over the allegations in the lawsuit.
"The lawsuit alleges that Evers has refused to include the MacIver Institute on its media email send list and has barred its reporters from attending press briefings," Lueders wrote. "These allegations are deeply troubling and merit the attention of all members of the press and all defenders of open government."
Not being a lawyer, Lueders said he didn't know whether the alleged conduct was a violation of law, but he said it certainly was not in keeping with the state's proud tradition of open government.
"If Tony Evers has what it takes to lead state government, he ought to be able to withstand the inclusion and presence of reporters from a conservative news outlet," he wrote.
Gregg Walker, the publisher of The Lakeland Times and The Northwoods River News, said the allegations mark a continuation of political attacks on transparency.
"Open government and free speech issues should not be partisan issues, not Left or Right, but based absolutely on a defense of the freedom of speech and press and of due process," Walker said. "We have been warning about the politicization of open-government issues for some time, and these allegations certainly underscore that troubling trend."
The whole idea of the First Amendment is to allow dissent and disagreement with those in power, and that includes the ability to question those in power, Walker said.
"Deny due process and free speech to anyone, regardless of their political viewpoint, and that's the same as denying it to everyone," he said. "Evers' actions effectively shut down freedom of the press."
The lawsuit alleges that the Evers administration is violating both MacIver's First and Fourteenth Amendment rights.
"The First Amendment guarantees the freedoms of speech and of the press, and those rights are incorporated against the states by the due process clause of the Fourteenth Amendment," the lawsuit states. "The Fourteenth Amendment also guarantees citizens equal protection of the laws, including equal treatment by their government."
As such, the lawsuit contends, the freedoms of speech and of the press and equal protection include a right of equal access among journalists to generally available information and events.
"A public official may not target particular news media outlets or journalists for exclusion from access made generally available to other media," the lawsuit asserts, citing previous case law in Anderson v. Cryovac, Inc. "To do so violates several constitutional doctrines, particularly the right to news-gathering and the prohibition against viewpoint discrimination."
And that's just what the Evers administration has done, the lawsuit claims: "Gov. Evers and his staff have targeted plaintiffs for exclusion from generally available media advisories and press events."
The MacIver News Service is indisputably a credible and legitimate news organization, the lawsuit asserts.
"Writers for the News Service post to its website and social media, and occasionally its stories are run by other news outlets," the lawsuit states. "Its reporters often contribute directly to other outlets as well. The MacIver Institute has gone to court before to defend the rights of journalists and the public to access important information, and has won an 'Opee' from the Wisconsin Freedom of Information Council for its commitment to openness and transparency in state government."
In addition, MacIver news director Bill Osmulski previously won several awards working as a television news reporter in the Milwaukee and Eau Claire markets and produces a regular public-affairs program for WVCY-TV 30.
What's more, the lawsuit continues, the MacIver News Service is credentialed by the Wisconsin Legislature to cover its activities as part of the Capitol press corps, and MacIver journalists regularly interview state legislators and other public officials in and around the Capitol.
Stuck in the hallway
The lawsuit describes how MacIver's exclusion unfolded.
"When Gov. Evers took office, Osmulski and his former MacIver News Service colleague Matt Kittle asked the governor's office to add them to the media list," the lawsuit states. "They received no response and have never received a media advisory of an upcoming event by the governor in the subsequent six months, although numerous media advisories have been sent out to an email list of approximately 1,000 local, state, and national reporters and news outlets."
Access to media advisories is critical because it provides reporters with information about the governor's public events, which also are the context in which he is sometimes available to answer questions as part of a media availability (or "gaggle") before or after an event, the lawsuit contends.
"Media advisories also alert reporters to press conferences with formal opportunities to ask questions of the governor," the complaint states. "As a result of this exclusion, it has been practically impossible for the MacIver journalists to attend the vast majority of the governor's public events and press conferences."
On Feb. 28, the governor's office held a press briefing for members of the Capitol press corps to explain the governor's forthcoming budget on an embargoed, on-background basis, the lawsuit alleges.
"The office invited 26 members of the Capitol press corps but did not invite reporters from the MacIver News Service," the complaint states. "The invitation email described it as 'a budget briefing for media' with 'staff from the state budget office and the governor's office' that would 'include an overview of key budget initiatives on background, as well as a brief opportunity for questions.' The email also promised a printed copy of the Budget in Brief, which was not made available to the general public until the governor's budget address later that night."
Alerted to the briefing by a colleague in the press corps, the lawsuit continues, Kittle and Osmulski emailed the governor's staff to RSVP.
"They then went up to the conference room at the designated hour and were denied access," the complaint states. "Watching their colleagues in the press corps file by, they were told that they were not on the RSVP list and that the senior staff member in the governor's office who could permit their access was not available to talk to them. Numerous messages and requests via email and voicemail asking the governor's communications staff for a conversation to discuss went unreturned."
Briefings like this are important for journalists to thoroughly and accurately report the news in a timely manner, especially in a competitive news business, the lawsuit alleges.
"By targeting the MacIver News Service for intentional and selective exclusion from this briefing, the governor's office made it substantially harder for these journalists to report the news in a timely, thorough manner," the complaint states.
In sum the lawsuit asserts, by targeting the MacIver News Service and Bill Osmulski for exclusion from generally available press information and events, Gov. Evers is violating their First Amendment right to freedom of the press, their First Amendment right to free speech, and their Fourteenth Amendment right to equal protection of the laws.
MacIver is asking the court to declare that excluding the MacIver News Service and Bill Osmulski from the information concerning the time and location of the governor's public events and press conferences is unconstitutional and that excluding them from generally available press events like the February 28, 2019, budget briefing is likewise unconstitutional.
The lawsuit also asks the court to enjoin Evers from excluding the MacIver News Service from generally available press events and lists announcing such events, and to enjoin Evers also from excluding Osmulski from generally available press events and lists announcing such events as long as he remains affiliated with the MacIver News Service.
Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.
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