Media access in one state revisited

The Minnesota Reformer is a “progressive” left-wing site edited by Patrick Coolican. I came to know and respect Patrick when he was a reporter covering Minnesota politics for the Star Tribune. Patrick and Stephen Montemayor wrote the Star Tribune’s 2019 story (“New documents revisit questions about Rep. Ilhan Omar’s marriage history”) delving into Rep. Ilhan Omar’s marriage to her brother. The story was three years late, but otherwise excellent. Anyone with half a brain could see through Omar’s denials and accusations. It was the Star Tribune’s most-read story of 2019.

MinnPost is another left-wing site that covers Minnesota politics. This week Patrick covered the story of Minnesota’s mainstream media outlets protesting the treatment of MinnPost reporter Peter Callaghan by DFL staff at the state legislature. Patrick’s story runs under the headline “Media organizations send letter defending MinnPost Capitol reporter.” Reformer deputy editor Max Nesterak touted the story in the site’s newsletter yesterday morning:

The talk of the town is House DFL’s ridiculous treatment of MinnPost journalist Peter Callaghan. He demanded more than one final question at a press conference, and that somehow escalated into House DFL reporting him to Capitol security and taking him off the press list.

Not an effective communications strategy!

Media organizations including the Star Tribune, MPR, us here at the Reformer and the Minnesota chapter of the Society of Professional Journalists signed onto a letter scolding House DFL and making clear journalists will not accept not-so-veiled threats.

As noted in the letter, House Speaker Melissa Hortman was made aware of the incident and retaliation before House DFL told Callaghan that Capitol security had been notified.

Attorney Leita Walker wrote the letter referred to above. It is posted online here.

Talking about this incident on his KTLK morning show, Jon Justice made the connection to my own First Amendment issues with the DFL establishment. Seeing Leita writing on behalf of “the Coalition” of Minnesota’s left-wing press establishment set me off. I thought it might be worth revisiting my own case. It is obviously of continuing relevance.

Leita was a First Amendment litigator at the Faegre firm where I began my career. At Faegre Leita worked with the late John Borger, who was the dean of Minnesota First Amendment lawyers in Minnesota. I worked with John from my first day at Faegre.

When I concluded I needed legal help to challenge the Walz administration, Leita was the first lawyer I turned to. She was too busy to help me.

However, I’m getting ahead of myself. I just wanted to explain what brought my case to mind. I have forgotten so much of it, yet it unites my two careers as a lawyer and journalist.

Governor Walz declared an emergency based on the epidemic in late March 2020. He exercised one-man rule until he let the emergency lapse on July 1, 2021. The era of one-man rule prompted me to cover the various aspects of the epidemic in my long-running “Coronavirus in one state” series.

The Minnesota Department of Health originally included me in its daily Covid press briefings upon my request from April 11 to April 27, 2020. They sent me notices with the conference call call-in information, they took my questions by email, and they provided written responses. My questions focused on the nursing home crisis implicit in the data. I wondered why Governor Walz had instituted a statewide shutdown when the crisis involved a limited at-risk population.

On April 27 I submitted this question by email following the briefing: “Referring to the 286 total deaths to date, [I note that] every decedent under age 70 has died in long-term care or similar setting. The youngest person to die outside long-term care was in his 70’s. Why is it necessary to close the schools and shut down the state to protect the at-risk population?” I posted MDH press officer Doug Schultz’s response to my question verbatim in part 24 of my Coronavirus in one state series.

The Department of Health excluded me from the daily briefings on April 27 without any explanation. I wrote MDH communications officer Michael Schommer asking why he had cut me off. He failed to respond to any of my several messages asking why. I left him several voicemail messages on his office and cell phones asking why. He also failed to respond to my voicemail messages. Nothing. Zip. Nada. The sound of silence.

I hate being ignored. I seethed about it for a week. It finally dawned on me that I could engage in self-help.

On May 4 I filed a Minnesota Data Practices Act request with Governor Walz and Health Commissioner Jan Malcolm seeking documents that referred to me. On May 19 I received Governor Walz’s response to my Data Practices Act request.

It was unilluminating except in one respect. In an email on page 8 Schommer forwarded my question (the one quoted above) to Jeremy Drucker and Emmalynn Bauer in Governor Walz’s office. Schommer’s message reads: “Flagging as an FYI for future discussion.” Bingo!

I drew the following inferences. My exclusion from the MDH briefings came after consultation with Governor Walz’s office. They didn’t like the question(s) I was asking or my commentary on their answers. They knew not to put the reason for my exclusion in writing and withheld it from me because it was unflattering to Walz. It would not have made him look good.

My exclusion from the daily MDH press briefings went right to the door of Governor Walz. The players were careful to keep the substance of their deliberations oral. They didn’t want anyone looking over their shoulder.

The Washington Free Beacon’s Collin Anderson reported on my exclusion from the daily COVID-19 press briefings by the state authorities in the May 20 story “Minnesota governor stonewalls conservative journalist.” Working on the story, Collin elicited statements from the governor’s office and from the Minnesota Department of Health regarding my exclusion.

Collin forwarded the responses to his inquiries for my comments. Walz’s office sent a message explaining that “the Governor’s press conferences are covered by the Minnesota Capitol Press Corps – a dozen media outlets that are credentialed by the Minnesota State Legislature, rent office space in the Minnesota Capitol building, and routinely cover state government.”

Walz’s office added that it also works with media beyond the Capitol press corps with this proviso: “The only interviews we shy away from—especially during the pandemic—are requests from unconventional news sources with overt ties to partisan political groups.” Here the governor’s office cited this MPR story including Alpha News (which is a nonpartisan, nonprofit organization on whose board I sit). I represented both Power Line and Alpha News in my request for inclusion in the MDH briefings. Power Line does not fall into either of the stigmatized categories, at least by my lights.

Collin also asked the governor’s office if it had directed the Department of Health to cut me off. This aspect of Collin’s inquiry received the sound-of-silence treatment to which I had become accustomed.

Collin directed an inquiry along the same lines to the Minnesota Department of Health. Schommer responded that “we need to limit call participation only to professional journalists.”

In the past 30 years I think I’ve broken more stories and written for more publications for pay than the average Star Tribune reporter, and I had been included on the MDH briefings until April 27. Where had I gone wrong?

Something happened on April 27. I continued to seethe about the circumstances. I thought what happened was that I had been excluded from the MDH daily briefings for political reasons. I thought back to my work at the Faegre firm representing clients with First Amendment claims. 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 together at Faegre 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 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.

The Burnham case remains the law of the circuit. Every Minnesota federal district judge was therefore bound to follow it, if it applied, as any Eighth Circuit panel to which the case might have been appealed would have been bound. If it applied, all we had to do was prove that defendants expelled me from the briefings for political reasons, and I had gathered strong circumstantial evidence that they had done so before we filed the lawsuit. It was only going to get better. I went looking for a lawyer to represent me in a lawsuit against the Minnesota Department of Health.

As I say, Leita Walker told me she was too busy. I then asked Chuck Webber at the Faegre firm to represent me. In our first conversation Chuck expressed intense interest in the case. He told me he badly wanted to represent me. Given the political considerations, however, he said he would have to run it by firm management. Sounding crestfallen, Chuck promptly called back to let me know that management would not approve his taking the case on. (Chuck is now a state court judge.)

Next I thought to ask Theresa Bevilacqua (photo at right). Theresa is the chair of Dorsey and Whitney’s Minneapolis trial group. She had successfully represented me in my Freedom of Information Act lawsuit against the Department of Homeland Security when I sought documents bearing on the private tour of secure areas at the Minneapolis-St. Paul International Airport that DHS gave to local Muslim leaders.

When Theresa got me the DHS documents I had been seeking, I wrote up the story here on Power Line and in the City Journal story “Magical mystery tour, Minneapolis version.” It was another story “the Coalition” passed by.

Theresa and the Dorsey firm agreed to represent me in my case against the Minnesota Department of Health. In the event, Theresa did an incredible job. She is a great lawyer. I remain in her debt. I can’t say enough good things about her. Watching Theresa argue the case against the very capable Assistant Attorney General the Minnesota Attorney General’s office assigned to it, I developed a deep respect and admiration for Theresa’s professionalism. In a case that I thought might affect my own professional standing, I was proud to have Theresa represent me.

Theresa filed the lawsuit in federal district court. I published my sworn statement setting forth the facts of the case as I understood them in my notes on the lawsuit. That post included the photo of my federal courts press badge below. According to Walz and MDH, I wasn’t a real journalist. I thought this might give me an edge on that question.

The lawsuit stood at the intersection of politics, public policy, COVID-19, and the First Amendment. It was an important and, I thought, a newsworthy case. We put in evidence that brought the case right into the office of Governor Walz. Yet the filing of the case attracted no interest from the members of “the Coalition.”

I alleged that Malcolm and Schommer excluded me from the press briefings on political grounds in violation of the First Amendment. They moved to dismiss the lawsuit for failure to state a claim upon which relief can be granted — i.e., they asserted that I had no legal claim. I moved for a preliminary injunction ordering them to reinstate me to the press briefing conference line.

The case was assigned to Judge Donovan Frank. Taking the allegations of my amended complaint as true, Judge Frank held that the substance of my First Amendment claim against Malcolm and Schommer was legally sufficient. Denying the motion to dismiss my case, Judge Frank adopted the limited public forum analysis on which my lawsuit was predicated. If Malcolm and Schommer excluded me from the calls on political grounds, that exclusion was illegal. I posted Judge Frank’s 17-page memorandum opinion and order here on Power Line.

Although Schommer filed a sworn statement asserting that he excluded me on April 27 for apolitical reasons and that his conference with Governor Walz’s staff about me on that date was coincidental, he failed to identify any reporter other than me who was included on the briefings until April 27 and then excluded under his April 27 dispensation. I posted a copy of Schommer’s sworn statement in here on Power Line. Schommer’s statement lacked any supporting exhibits. Not one.

Judge Frank’s denial of defendants’ motion to dismiss prompted MDH to settle the case on better terms than I had sought in bringing the case. They did not want to subject themselves to discovery in a losing case.

Under the terms of the settlement they agreed to reinstate me to the MDH press briefing conference calls. We had served a draft copy of my complaint on defendants before the lawsuit was filed and told them that was all I wanted. They told me to pound sand. According to them, it was their show and they had no obligation to treat me like the reporters otherwise admitted to the circle of love on their briefing conference calls.

In addition, they agreed to answer three written questions from me by email each week so long as the era of one-man rule persisted. I posted my questions and their responses in my “Coronavirus in one state” series. That went well beyond their legal obligations to me absent the settlement agreement.

My take on the settlement was that I won, they lost. The Free Beacon’s Collin Anderson covered the settlement in “Conservative Journalist Successfully Sues State of Minnesota for Access to Coronavirus Briefings.” If you can recognize a pattern, you may have inferred that the members of “the Coalition” did not find it newsworthy.