Shoptalk: Be Careful What You Wish For

By: Sandy Davidson

The Pittsburgh Post-Gazette should rethink appealing its Jan. 15 loss in PG Publishing Co. v. Aichele, in which the Third Circuit upheld dismissal of the newspaper’s lawsuit challenging Pennsylvania’s election law that all persons, with some exceptions, must remain at least 10 feet from polling places during voting. The paper filed its original suit because when Pennsylvania starts enforcing its new photo ID law, it wants journalists to be able to observe what happens at sign-in tables.  

But if the Supreme Court rules against the paper’s appeal, it could also overturn the 2004 Sixth Circuit decision in Beacon Journal Publishing Co. v. Blackwell, which permits reporters inside Ohio polling places.  

The Third Circuit refused to adopt the Sixth Circuit’s decision, calling its reasoning “ambiguous at best.” That seems fair. Although the Sixth Circuit never said polling places are public forums — places where anybody can speak out — it did use the public forums test. To uphold restrictions on public forums, courts demand both a compelling reason for the restriction and narrow tailoring. This “strict scrutiny” test is difficult to pass.  

By expressly saying polling places are not public forums, the Third Circuit applied an easy-to-pass “reasonableness” test and upheld Pennsylvania’s law keeping the press outside polling places.  

The Third Circuit is probably correct that polling places are not public forums. If so, the handwriting is on the wall: The Supreme Court will use the lower reasonableness standard, and Pennsylvania has a good chance of winning the suit.  

The result would be a loss not just for the Post-Gazette, but also for journalists nationally.  

In its opinion, the Third Circuit showed a Humpty Dumpty lack of respect for logic. It rejected the Sixth Circuit’s public forum analysis, but then said that “adopting a traditional forum analysis … sets a dangerous precedent which permits the government too much freedom to hide their activities from the public’s view.”  

What? How curious. The Sixth Circuit opened polling places to the press, the Third Circuit closed polling places to the press. Then the Third Circuit said the Sixth Circuit “permits the government too much freedom to hide their activities from the public’s view”? No, it is the Third Circuit’s “reasonableness” test that permits government to hide its activities instead of holding its feet to the fire of strict scrutiny.  

While the Sixth Circuit ends up with what open-government enthusiasts consider the right result, its analysis is messy. The Supreme Court may well use the Third Circuit’s analysis with its reasonableness test, and may even straightforwardly shut down access to polling places, just as it shut down press access in Department of Justice v. Reporters Committee for Freedom of the Press (1989). The Reporters Committee, seeking computerized FBI rap sheets, unanimously lost its case, with disastrous results. Lower courts picked up the high court’s language of “unwarranted invasion of personal privacy” and applied it in widening circles that waterlogged access requests. Reporters and the whole country suffered as courts shut off the flow of information.  

A similar blow could happen here.  

The press has no special right of access, so the Pittsburgh Post-Gazette is wading into weedy water. The Supreme Court has repeatedly held that reporters have no more right of access than does anybody else. For example, reporters have no greater rights of access in prisons.  

The Supreme Court in Branzburg v. Hayes (1972) denied a “constitutional newsman’s privilege,” thus skirting the problem of defining what makes a “newsman.”  

Who qualifies as a reporter remains an increasing problem. The Third Circuit expressed concern about “confusion and chaos that would result from a potentially limitless number of reporters in a polling place.” It said that who qualifies as a member of the press is “almost boundless” nowadays: “Access to blogs, smartphones, and an extensive network of social media sites … have transformed all of us into potential members of the media.”  

The solution, if there is a “chaos” problem, lies in a legislative fix.   

Pennsylvania provides for “overseers” and “watchers” inside polling places. If the legislature also wants to list the press among those permitted inside polling places, perhaps it could borrow its definition of journalist from Pennsylvania shield law — a “person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing, or publishing news …” Pennsylvania could also limit the number of journalists present, the way it limits the number witnessing executions to no more than six.  

Relying on the legislature to fix the problem instead of taking the case to the Supreme Court may seem like choosing between Scylla and Charybdis. But a Supreme Court ruling against the Pennsylvania press could spell trouble for reporters all over this country.    

Sandy Davidson, Ph.D., J.D., teaches communications law at the University of Missouri School of Journalism and School of Law.

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Published: April 18, 2013


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