I have brought a section 1983 lawsuit against Minnesota Health Commissioner Jan Malcolm and MDH press officer Michael Schommer for excluding me from the daily MDH press briefings on and after April 27. I allege that they have excluded me on political grounds in violation of the First Amendment. They moved to dismiss the lawsuit on the ground that I failed to state a claim upon which relief can be granted. I moved for a preliminary injunction ordering them to reinstate me to the press briefing conference line.
The case is pending before Judge Donovan Frank. On June 18 Judge Frank held a two-hour hearing by Zoom. I reported on the hearing here. At the hearing Judge Frank stated his intention to rule on the motions by June 26 and he proved as good as his word. I have uploaded his 17-page memorandum opinion and order below.
Judge Frank denied both motions. Taking the allegations of my amended complaint as true, he held that my First Amendment claims against Malcolm and Schommer are legally sufficient. He has at least tentatively adopted the limited public forum analysis on which my lawsuit is predicated. If Malcolm and Schommer excluded me from the calls on political grounds, that exclusion was illegal. See memorandum and order at 12-14 & note 4.
Judge Frank also denied my motion for preliminary injunction. Insofar as I agree that Malcolm and Schommer can’t be compelled to take my questions or respond, Judge Frank ruled, I have not made out the element of irreparable harm requiring the court’s exercise of equitable power.
This lawsuit stands at the intersection of politics, public policy, COVID-19 and the First Amendment. We have put in evidence that brings the case right into the office of Governor Walz. Yet the case has attracted essentially no local media interest. My reports on the case are a Power Line exclusive.
It strikes me as an important and newsworthy case, but I’m not just a reporter. Like the old Hair Club for Men guy, I’m also a client. Perhaps my judgement is off.
If asked for a comment on Judge Frank’s ruling, this is what I would say. Assuming the veracity of my factual allegations, Judge Frank has upheld the sufficiency of my claims against Malcolm and Schommer in their individual capacities and put me to the proof. I live to fight another day and that’s what I intend to do.