994 F.3d 602
7th Cir.2021Background
- MacIver Institute operates a MacIver News Service; reporters William Osmulski and Matt Kittle were denied entry to an invitation-only Governor Evers press briefing on Feb. 28, 2019 and learned they were not on the Governor’s media advisory list.
- The Governor’s communications office uses a media-advisory list and, after a records request, issued (June 2019) a memorandum setting neutral criteria for inclusion (e.g., principal business of news dissemination, 18-month publication history, avoidance of advocacy or conflicts of interest).
- MacIver’s News Service did not meet those criteria (the Governor’s office found it not principally a news organization) and was therefore excluded from limited-access events and related invitations.
- MacIver sued asserting (1) denial of equal access to press events in violation of the First Amendment, (2) viewpoint discrimination under the First Amendment, and (3) a Fourteenth Amendment equal-protection violation; it sought injunction/declatory relief.
- The district court granted summary judgment to Governor Evers, concluding the events were non-public fora and the access criteria were reasonable and viewpoint neutral; the Seventh Circuit affirmed, finding no evidence of viewpoint discrimination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nature of forum for invitation-only gubernatorial press events | Press briefings are public-press functions; press deserve equal access (strict scrutiny) | Events are limited-access; forum analysis applies and events are non-public fora | Court: non-public forum; forum analysis appropriate |
| Whether access criteria are content- or viewpoint-based | Exclusion of MacIver reflects ideological/viewpoint discrimination against conservative outlet | Criteria are neutral, related to space/security/journalistic impact and integrity | Court: criteria are viewpoint neutral and reasonable |
| Whether members of the press have a special-access right to government events | MacIver: press must receive equal access to events generally available to press corps | Evers: no special constitutional right to greater access than public; press have no special access beyond public | Court: press have no special right of access; Branzburg/Houchins principles apply; no strict scrutiny |
| Fourteenth Amendment equal-protection claim | Equal-access denial also violates equal protection | Claim is coterminous with First Amendment claim and not independently developed | Court: claim waived/abandoned; not separately considered |
Key Cases Cited
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (forum analysis and standards for public/designated/nonpublic fora)
- Cornelius v. NAACP, 473 U.S. 788 (nonpublic forum: speaker identity and subject-matter distinctions must be reasonable and viewpoint neutral)
- Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666 (limited access and reserved forums do not create designated public fora)
- Branzburg v. Hayes, 408 U.S. 665 (press has no special constitutional right of access to information/gathering)
- Houchins v. KQED, Inc., 438 U.S. 1 (no special right of access to government property or information beyond public generally)
- Mills v. State of Ala., 384 U.S. 214 (news gathering and distribution protected speech but government may regulate access to nonpublic spaces)
- Frisby v. Schultz, 487 U.S. 474 (forum/location matters in First Amendment analysis)