January 16, 2013
Third Circuit: No Right to Access Polling Places
A three-juge panel of the Third Circuit ruled in PG Publishing Co. v. Aichele that a newspaper had no First Amendment right to access polling places. The lengthy and careful opinion affirms a lower court ruling and creates a split between the Third and Sixth Circuits on the proper framework for analysis of this kind of claim, dealing with the right of access to the polling place: apply the experience-and-logic test from right-to-access jurisprudence (as the Third Circuit would have it); or apply strict scrutiny, apparently based on free speech forum analysis (as the Sixth Circuit would have it)?
The case arose out of attempts by PG's reporters to gain access to polling places in Allegheny and Beaver Counties, Pennsylvania, in order to report on that state's implementation of its voter ID law in the last election. But state law bans all but election officers, clerks, machine inspectors, overseers, watchers, voters, those giving assistance to voters, and police officers from the polling place during elections. After PG reporters were denied access in those two counties, PG sued, arguing that the ban violated its free speech and equal protection rights. (Equal protection, because it claimed that other counties allowed access to reporters from other papers, and that Allegheny and Beaver counties previously allowed access to PG reporters.)
The Third Circuit rejected the claims. The court ruled that free speech analysis didn't even apply (because there was no speech). (The court nevertheless made clear that a polling place is a non-public forum.) Instead, the court looked to right-to-access, or "right to gather news," jurisprudence--a right, like free speech, that the media enjoy only on par with the public generally. Thus the court applied the Richmond Newspapers (or the "experience and logic") test, "balanc[ing] the interests of the People in observing and monitoring the functions of their government against the government's interest and/or long-standing historical practice of keeping certain information from public scrutiny. If a right of access exists, any restraint on that right is then evaluated under strict scrutiny." Op. at 25. (The court reviewed its own opinions applying the experience-and-logic test to any traditionally open government proceeding, not just judicial proceedings, and concluded that it applies to polling places.)
Applying the test, the court first reviewed the history of voting (the "experience" prong) and wrote that "the historical record is insufficient to establish a presumption of openness in the context of the voting process itself." Op. at 38. Next, on the "logic" prong, the court compared the benefits of openness (preventing election fraud, preventing voter intimidation, and especially here checking and reporting on the implementation of voter ID) to the dangers (overcrowded polling places, revealing private information of voters) and ruled that "the 'logic' prong of this inquiry disfavors finding a constitutionally protected right of access to the voting process." Op. at 43. The net result: "both prongs of the "experience and logic" test militate against finding a right of access in this case." Id.
In applying the experience-and-logic test, the court rejected the approach of the Sixth Circuit in Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 683 (6th Cir. 2004). The Sixth Circuit in Beacon Journal applied strict scrutiny, not experience-and-logic balancing, to a similar claim and overturned Ohio's restriction on access. The Third Circuit said that Beacon Journal erroneously applied speech principles--and public forum principles, at that--and thus deviated from the clear approach of the Supreme Court in cases like this. It thus declined to follow Beacon Journal.
As to equal protection, the court rejected PG's three theories--a class-of-one theory, a selective enforcement theory, and an inconsistent application theory--all because PG failed to show any intention discrimination against its reporters, or that the state treated PG's reporters any differently than reporters from any other paper.
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