Media access in one state: Notes (4)

I continue this series of exclusive reports on my section 1983 lawsuit against Minnesota Health Commissioner Jan Malcolm and Minnesota Department of Health press officer Michael Schommer with an account of the argument on the two motions heard by Judge Donovan Frank via Zoom yesterday morning. I was the only reporter in the Zoom. When it comes to the story of this lawsuit, as the old Hair Club for Men guy used to put it, I’m also a client.

Judge Frank convened the hearing on the two motions a few minutes before 9:30 and let counsel argue as long as they needed. The hearing ran nearly two hours. I took 22 pages of detailed notes on the hearing but want to keep this report brief.

Judge Frank did not tip his hand on either motion. In his opening remarks, however, Judge Frank invoked the limited public forum case law that provides the framework of our analysis of the case. He homed in on the issue of media access and my exclusion on April 27. He differentiated between my possible right to participate by asking a question — or participate by being on the conference line even if not called on — and defendants’ freedom not to call on me and to avoid answering my questions.

First up was the motion to dismiss brought by defendants. Assistant Attorney General Oliver Larson argued on their behalf that they can treat me however they see fit, that I have no First Amendment right to participate in the daily press briefings other than by tuning in to see them on television. I have no right to address questions to them and they have no obligation to answer. The daily briefings are nothing more than government speech that implicate no press rights. Accordingly, my complaint against defendants fails to state a claim on which relief can be granted.

We concede defendants have no obligation to answer my questions, but we argue I should have the opportunity to ask even if they don’t call on me. MDH established the conference calls for the purpose of allowing the press to cover the daily MDH COVID-19 briefings. Defendants cannot deny me access to that conference line, created expressly for reporters, based on my point of view or some arbitrary whim. Relying on Larson’s own brief, we contend that “[t]he Department rents a conference line to allow journalists to ask questions of Commissioner Malcom and others during the media updates.” This isn’t just an issue of government speech.

On my behalf Theresa Bevilacqua hammered mercilessly on defendants’ inclusion of me on the calls and response to my questions until April 27, when Schommer forwarded my questions of that day to the staff of Governor Walz and flagged them for further discussion. I thought that Ms. Bevilacqua administered the forensic equivalent of lethal force to defendants’ motion.

Judge Frank seems to see the case within the framework of the limited public forum analysis on which our argument mostly depends. As I say, his very first comment at the outset of the hearing went to the distinction between the right of access versus the right to be allowed to ask a question and any obligation to answer it. We distinguish between the two, based on the case law. The argument on defendants’ motion to dismiss got into detailed discussion of the case law on both sides.

Our motion for a preliminary injunction presents a closer question than the legal sufficiency of my claims. We argue that, based on the direct and circumstantial evidence, I am likely to prevail on the merits of the case. Moreover, we assert, the deprivation of the opportunity to ask questions constitutes irreparable harm.

Judge Frank raised the question of cost — they say they have spent $40,000 on the conference call line to which I seek the restoration of access. We point out that they haven’t put in evidence of the incremental cost of adding me back or the saving from cutting me off. Any such expense could be handled by conditioning the injunction on the posting of a bond if the evidence supported it.

Judge Frank also wondered where the list of other excluded sites is. So do we. On behalf of defendants, Larson suggested it was over in Schommer’s office somewhere. They are all apparently too busy to dig it out. They are too busy even to commit the policy on which they have excluded me to writing. They ain’t got time to read.

I was impressed by Judge Frank. He is a decent man and fair judge. His questions were all on the button. He was incredibly well prepared. In his concluding remarks, according to my notes, Judge Frank stated that “this is an important case.” He treated it that way at the hearing and I certainly appreciated that. If this is an important case, I should like to think it’s not because it illustrates the government’s power to do what Malcolm and Schommer have done to me.

I was included in the daily MDH press briefings until April 27. I participated in them to the extent that I asked relevant questions, was provided answers, and made the answers known to Power Line readers. My behavior comported with the purpose of the forum Malcolm and Schommer created and controlled.

On April 27, however, I asked questions that triggered review by the governor’s staff and the subsequent cut-off without explanation. Malcolm and Schommer assert that there is nothing to see here, but my complaint alleges otherwise and my allegations control the disposition of their motion to dismiss for failure to state a claim. They do not even expressly argue that they could lawfully exclude me because of the content of my questions; they know they could not lawfully do so. Anyway, that is my case.

I remarked in an earlier post that, if I lost these motions, it would be due to a failure of advocacy on our part. I retract that statement. Judge Frank understands the issues. We haven’t failed to make the case clear to him. If we lose, it will be because Judge Frank understands the applicable law differently than we do. In his last word, Judge Frank noted that he hoped to issue his ruling by the end of next week.