Media access in one state: Notes (2)

The Minnesota Department of Health uses a conference call set-up for its daily COVID-19 press briefings and sends out the conference call information to reporters on the MDH media distribution list. I was included on the conference call distribution list for the briefings from April 11 to April 27. On April 27 I was cut off without explanation.

Something happened on April 27. I think what happened is that I was excluded from the MDH daily briefings for political reasons. When the light dawned, it occurred to me that, if this was the case, it would be illegal under the First Amendment limited public forum doctrine recognized by the Supreme Court.

John Hinderaker and I litigated a limited public forum case back in the ’90s. The case was Burnham v. Ianni, decided by the Eighth Circuit Court of Appeals sitting en banc. In that case we represented two University of Minnesota-Duluth history professors whose photographs had been removed from a locked departmental display case at the order of the chancellor (Ianni).

John and I pursued a damages claim against Ianni under section 1983 for violation of the professors’ First Amendment rights. Defending the case not wisely but too well, counsel for the University of Minnesota managed to amplify its importance. Creighton Law Review has a good article on it here.

I think that MDH excluded me from the daily briefing conference calls for political reasons and that, if so, it’s illegal under limited public forum doctrine. I set forth the factual background in the sworn statement supporting my motion for preliminary injunction (embedded below). This is an interesting case that raises the proposition you can’t fight city hall up one level.

I have brought a section 1983 lawsuit against Commissioner Malcolm and press flack Michael Schommer for excluding me from the conference calls for political reasons. That is the gist of my case. Tomorrow morning the court will hear defendants’ motion to dismiss the case along with my motion for a preliminary injunction. A few notes on the motions:

Defendants’ motion to dismiss the case is a Rule 12(b)(6) motion for failure to state a claim on which relief can be granted. On such a motion, the court is required to take my allegations as true. The facts alleged in my amended complaint are basically as set forth in the sworn statement I filed in support of my motion. Malcolm and Schommer deny that they excluded me for political reasons, but this raises a question of fact that is inappropriate for resolution on a 12(b)(6) motion. I don’t think Malcolm and Schommer assert that they had the right to exclude me from the conference calls for political reasons. Unless my legal theory of the case is rejected, which is certainly possible, their motion should be denied.

My motion for a preliminary injunction is based on the facts set forth in my sworn statement. In the statement I identify the direct and circumstantial evidence (including 14 exhibits) from which I infer the political motive for my exclusion. Schommer has filed a sworn statement to support defendants’ opposition to my motion. He hasn’t produced a single exhibit. Both my statement and Schommer’s trace the decision for my exclusion right up to Governor Walz’s political staff. It’s amazing.

A word about Judge Donavan Frank, to whom my case has been assigned. Judge Frank promptly scheduled tomorrow’s hearing at our request for an expedited resolution of the request for preliminary injunctive relief. I think every Minnesota federal district court judge deems himself or herself a supporter of the First Amendment. For example, I have been encouraged in my own work on Power Line by Judge Michael Davis, a 1993 Clinton appointee. Among many other things, Judge Davis is an ardent champion of the First Amendment. Coincidentally, Judge Davis decided the Burnham case in our favor before it went up on interlocutory appeal to the Eighth Circuit. He is a man I greatly admire.

Judge Frank is one of the four or five judges on our federal bench who took the time to attend the annual lunch hosted by Chief Judge Jack Tunheim (another Clinton appointee) for local reporters who cover the courts this past October. If we lose this case, the failure will be one of advocacy on our part. Judge Frank will fairly decide this case based on the facts and arguments before him.

2020-06-04 DKT 12_0 Declaration by Scott Johnson on Scribd

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