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Friday, January 18, 2013

Third Circuit Rules Pennsylvania Statute Does Not Infringe Media's FA Right To Gather News

The Third Circuit has affird a lower court's ruling that a Pennsylvania state law prohibiting the media from entering a polling place to "gather news" does not infringe on the First Amendment. In PG Publishing Company v. Aichele, decided January 15, 2013, the Court held that,

[while] Appellants are therefore correct in arguing that the First Amendment encompasses a right of access for news-gathering purposes....the press is [not] entitled to any greater protection under this right than is the general public. The Supreme Court's pronouncement on this issue is unequivocal: "[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.".... Thus, while the First Amendment does protect Appellant's right of access to gather news, that right does not extend to all information.

...

Importantly, we do not address here limitations on access to a forum for speech purposes; indeed, we are not concerned here with expressive conduct or speech at all. ...Rather, our focus is on access to information.Thus, we do not believe that the traditional forum analysis is apposite here. If we were to apply such a framework, the government would be free to shut down nonpublic fora completely, thereby hiding any activities behind a veil of secrecy. It cannot be that the First Amendment would countenance such a course of action....

For this reason, we consider Appellant's citation to cases such as Munro, which focused on exit-polling, to be of little help. ...The analysis that these courts apply to laws curtailing exit-polling activities — i.e., the traditional forum analysis — is therefore distinct from what is necessary here.

Appellant also urges that the instant case should be evaluated under the rubric of a prior restraint. We disagree. While it is true that restricting access to information may work a prior restraint on speech... this principle is not unlimited. ...

For this reason, we distinguish those cases cited by Appellant that concern court orders prohibiting members of the press (and others) from contacting jurors. ... Here, the government is not restricting access to information per se; rather it is restricting access to a particular proceeding (i.e., the voting process that occurs inside polling places). Unlike the juror-interview cases, therefore, Appellant is free to contact voters and individuals working in a polling place in order to obtain information about the goings-on inside. There is no blanket gag order curtailing access to this information....

Instead, we find that the analysis in this case turns on the question of whether the source of information (here, access to the polling place) should be "available to members of the public generally." Thus, we must determine the proper analytical framework for evaluating this question. As the discussion below demonstrates, the matter here concerns information about government bodies, their processes, and their decisions. As such, our analysis of the public's right to access the source of this information turns on both historical and structural considerations. We must balance the interests of the government on the one hand and those of the press and public on the other.

...

The Supreme Court has suggested that the existence of a First Amendment right to gather news (i.e., the right of access to the source of information or a government process) is best evaluated via a balancing test. The necessity of such a test was first noted in Branzburg v. Hayes, where a reporter had claimed that testifying before a grand jury about confidential sources would violate his right to gather news. 

...

Having set the operative framework, the plurality then engaged in a balancing inquiry to determine which set of rights should prevail. In his concurrence, Justice Powell summarized the sentiment of the plurality and his own position: "The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." 

...

Subsequently, the Court embarked on a similar balancing inquiry to uphold a California Department of Corrections regulation that prohibited the press and others from interviewing specific inmates. ... Prior to the enactment of the regulation in question, journalists "had virtually free access to interview any individual inmate" while non-press members of the public did not benefit from such an unrestricted visitation policy.... Journalists claimed that the new regulation, by limiting their news gathering activities, violated the First Amendment protections for freedom of the press. ...Holding that the press does not enjoy any greater constitutional protection than does the general public, the Court ultimately agreed with the prison administrators that the interest in preserving security in the prisons outweighed the press's right to gather news, partly based on the fact that the press had an alternative means of obtaining this information. ...

But while the opinions in Branzburg and Pell presented an ad hoc approach, the case of Richmond Newspapers, Inc. v. Virginia suggested a more standardized framework for evaluating the right of access to information about government processes. ...In that case, reporters sought access to a courtroom that had been closed to the public to prevent undue dissemination of witness-related information, arguing that there were less restrictive means for ensuring a fair trial. The plurality reaffirmed the First Amendment's protection of the press and recognized that the First Amendment necessarily also "'prohibit[ed] government from limiting the stock of information from which members of the public may draw.'" ...Finding that access to trials could not be "foreclosed arbitrarily," the Richmond Newspapers opinion suggested the framework for a more meaningful test on restrictions in nonpublic fora such as a courtroom. ...

...

The framework articulated in Richmond Newspapers asks us to consider whether a "'place and process have historically been open to the press and general public.'" ... This analysis begins with a review of historical practices associated with a particular place or process; this inquiry is objective. ... Thus, for example, in Capital Cities we held that "the relevant historic[al] practice in this case is not specifically that of Pennsylvania's [D.E.R.]" Id. Instead, after considering Richmond  [*42] Newspapers, Globe and Press-Enterprise, we held that "[i]n each of these cases, the Court looked not to the practice of the specific public institution involved, but rather to whether the particular type of government proceeding had historically been open in our free society." Id. (emphasis added).

...

The Richmond Newspapers framework also tasks us with considering "whether public access plays a significant positive role in the functioning of the particular process in question." 

...

In the case before us, we begin by noting the rather obvious fact that openness of the voting process helps prevent election fraud, voter intimidation, and various other kinds of electoral evils. ...Of course, in situations where the press is not geographically far removed from the proceedings anyway, the benefits of additional oversight are inversely proportional to the distance of the press. The situation in Pennsylvania is a fine example: The press (like the general public) is only 10 feet away from the polling place, and we have no tangible or discernible evidence of how the public good would benefit so much more from the press being inside the room, rather than several paces away.

...

 We agree that openness in a situation where new legislation is being implemented or tested would generally serve the public good. It implicates several of the broad categories recognized in Simone, including the "promotion of informed discussion of governmental affairs by providing the public with [a] more complete understanding of the [proceeding]."

...

We therefore consider this as a factor weighing in favor of satisfying the "logic" prong.


The experience and logic test requires that we also examine the potential dangers inherent in openness. Of greatest concern to us is that access for one is access for all. While Appellant urges that its reporters should be permitted to access the polling place for purposes of gathering news, there is no constitutionally valid way of limiting the right of access only to Appellant. Finding a right of access for one member of the press necessarily means that all other members of the press must or should share in that right.

This brings us to the next concern, raised at oral argument: Who is a member of the press? Even if we were inclined to find a special First Amendment right for the press in this case (which we explicitly refuse to do), the class of persons to whom such a right is applicable is almost boundless. Counsel for Appellant could not divine a way to confine the potential beneficiaries of a ruling in its favor.

Moreover, there is a very real possibility that the presence of reporters during the sign-in period, when individuals are necessarily exchanging personal information in preparation for casting a private vote, could concern, intimidate or even turn away potential voters.

On balance then, we find the "logic" prong of this inquiry disfavors finding a constitutionally protected right of access to the voting process. We therefore find that both prongs of the "experience and logic" test militate against finding a right of access in this case. As in North Jersey, we note that while the Constitution does not provide protection under the First Amendment, "there is, as always, the powerful check of political accountability." 

 

Read the entire ruling here.

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