ISSUE 74 -October 26, 2011
>> From Carol Simpson, Ed.D., Associate
Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
Is a blogger a journalist entitled to preferential access?
With the advent of the Internet-as-publisher age, just about anyone can “publish.” Since traditional news outlets have moved to the Internet with at least some of their news, the lines blur between professional journalists and hobbyist commentators. Schools and other government organizations are faced with media access requests from more than the local newspaper, television and radio stations, and possibly alternative print media. Now anyone with an Internet
connection believes that he is a “journalist” with a right to free access to anything in the name of the First Amendment.
Demands that journalists (and possibly less mainstream commentators) may make in the name of freedom of the press include preferential seating at board meetings, free access to school events such as athletic games and plays or concerts, seating in the press box at football games,
and unfettered access to school officials for “interviews.”
Districts with public information officers are accustomed to referring press inquiries of whatever type to the public information officer. That person is charged to inform the press, at the time of the district’s choosing, of information that the district chooses to release. Members of the press (and members of the public) regularly make requests for documents under the state’s Public Information Act. Meetings of the board of trustees are open by law, and while the meeting must be open to some of the public, if more people attend than can fit in the anticipated space, those who arrive late may have to stand or be turned away for lack of space.
A premium for the press
While the First Amendment says that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” it does not say that the press will receive a premium seat at every event. Some districts favor the local press with free admission to district events in the hope that the media will report favorably on the event. But government entities are not required to do so, and may set reasonable restrictions on who can qualify for such benefits lest everyone declare himself a “reporter” to avoid paying for tickets. Because space in the press box or press seating may be limited (and understandably so because the seats generate no revenue – one of the reasons for the event to begin with), the district may limit the available seats and set guidelines and priorities for which press representatives get first priority on the press seats. The University of Texas has just such a policy for seats in the press box at the Texas Relays. Here is an excerpt from their rules on press seating:
COVERING THE MEET
· Credentials are granted to authorized working press, University of Texas approved officials and event management personnel only.
· Media organization identification and the name of the media member covering the event for that outlet are required for every credential.
· Passes are not transferable. Media members that need to alter their original request should do so by contacting [name].
· Media credential requests must be received by Tuesday, April 5 (5 p.m. Central) to receive consideration.
· Space in the Mike A. Myers Stadium press box is limited. There also will be a tent adjacent to the press box designated for media. Working space and credentials will be allotted based on the following priority guidelines:
1. Daily newspapers covering for next-day publication (based on circulation)
Wire services and national publications
UT Web site partners and visiting university Web site partners
2. Officially recognized University of Texas and visiting university student newspapers, publications and news outlets
3. Radio and television personnel reporting on the event
4. Web site reporters with a primary focus on athletics, specifically track and field
5. Non-daily newspapers or publications reporting on the event
This approach to assigning limited press credentials could work for assigning press seating at high-demand events such as football games. Other events where seating is more limited may have no assigned seating for press, such as at a basketball game. Even in that circumstance, you can request that press register and accept certain standards of conduct, such as not interfering with the game, or not obstructing fan viewing when taking photographs.The First Amendment right to gather news is not absolute, and does not provide journalists with special privileges denied ordinary citizens. U.S. v. Harrelson, 713 F.2d 1114, 1116 (5th Cir. 1983).
In a recent case in the Seventh Circuit, a court found that a media policy that limited, but did not preclude, coverage by the press was compatible with the First Amendment. Wisc. Interscholastic Athletic Ass’s v. Gannett Co., Inc., No. 10-2627, 2011 WL 3773844 (7th Cir. Aug. 24, 2011) (hereinafter WIAA). In WIAA the court distinguished between events (such as board meetings) where the district is a regulator from events (such as athletic events and plays) where the district is a proprietor. In the case of the latter, the game or play is a “performance product” that the district has the right to control. It does the press a favor to provide access and facilities. If the district wishes to charge for that special access, it is free to do so. Reporters and bloggers are free to purchase a ticket and report on the game or the performance from the same seats as the general public. Members of the press are not entitled to sideline or back stage access, and in fact allowing unlimited press access in those generally restricted areas may interfere with the participants in the event.
Obviously government entities need not give carte blanche access to the press – if that were the case, the White House Press Room would be the size of the Washington Mall. Districts are not required to provide any special facilities for the press, at all. If a district has so many requests for special press seating that it cannot accommodate all the requests, it has two options: eliminate special seating entirely and allow the press to grapple with the public for seats, or establish a policy that prioritizes press access to give the most likelihood that the event will be covered in a way to reach the most people in the most responsible manner.
The Texas Public Information Act defines (without naming either “press” or “media”) the special types of jobs that would ordinarily be called “press.” In allowing a district to set a maximum amount of “free” research time, the Public Information Act excepts requests from “. . . an individual who, for a substantial portion of the individual’s livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information for and is seeking the information for:
(1) A radio or television broadcast station that holds a broadcast license for an assigned frequency issued by the Federal Communications Commission;
(2) A newspaper that is qualified under Section 2051.044 to publish legal notices or is a free newspaper of general circulation and that is published at least once a week and available and of interest to the general public in the dissemination of news;
(3) A newspaper of general circulation that is published on the Internet by a news medium engaged in the business of disseminating news or information to the general public; or
(4) A magazine that is published at least once a week or on the Internet by a news medium engaged in the business of disseminating news or information to the general public. Tex. Gov’t Code Ann. § 552.275(j).
These categories bring in most of the true journalists, and exclude the fly-by-night folks with an Internet connection and an axe to grind. In deciding to whom to grant press credentials, the district could establish a similar qualification. As long as the rules are content neutral, they should be defensible, if challenged.
In the case of school board meetings, Texas Government Code § 551.023(b) allows a board to set reasonable rules to maintain order at a meeting, including rules related to recording meetings. Texas Association of School Boards model regulation BE (Exhibit) identifies a collection of reasonable rules related to recording board meetings. But in larger districts where the board room has limited space for television equipment, districts may establish a “pool” video (similar to that done in the White House Press Room) where one television feed is shared with all networks. No one is denied the right to cover the event; they are just denied the right to havetheir own camera on the platform.
Remember, “freedom of the press” guarantees only the right to report on an event. It doesn’t guarantee free seats at a commercial event, nor does it guarantee preferential seating for the press. Some districts like to give the press extra “perqs,” including free access to ticked events, hoping for a favorable report; and members of the local press may have come to expect such treatment. But an observation that there are more requests for press seating than the district is able to accommodate can be justification to prioritize or eliminate preferential access. Reasonable restrictions on all the press (not just some annoying reporters) on places to stand to photograph where they will not interfere with the conduct of the event or the public’s view of the event are defensible. See, e.g., Stevens v. N.Y. Racing Assn’n, 665 F. Supp. 164, 175 (E.D.N.Y 1987); see also Estes v. Texas, 381 U.S. 532, 584 (1965) (“When members of the communications media attend [a public meeting] they have no greater rights than other members of the public.”). Restricting a reporter because you don’t like what or how he reports, however, will not fare well in the courts. Stevens, 665 F. Supp. at 175. When a restriction that affords different degrees of access to members of the press is not content-based, the limitation must serve a legitimate governmental purpose, must be rationally related to accomplishment of that purpose, and must outweigh the systemic benefits inherent in unrestricted, or lesser-restricted, access. Id.