Wednesday, December 5, 2012

Circuit Split Watch: Press Access Not a Slam Dunk

This article first appeared in the December 4, 2012, issue of the National Law Journal’s Supreme Court Insider.

Federal appellate courts are split over press access to polling places. The Pittsburgh Post-Gazette, the largest newspaper in Western Pennsylvania, recently lost a challenge to access restrictions in the U.S. Court of Appeals for the 3rd Circuit and plans an appeal to the Supreme Court.

Under Pennsylvania law, “All persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers ... must remain at least ten (10) feet distant from the polling place during the progress of voting.”

The Post-Gazette argues that this restriction, when applied to the media, violates the First Amendment’s free-press guarantee. The topic of press access was especially sensitive this year, with the controversy surrounding Pennsylvania’s new voter ID law and how it would be applied.

On October 9, Judge Nora Barry Fischer of the U.S. District Court for the Western District of Pennsylvania dismissed the Post-Gazette’s lawsuit in PG Publishing Co. v. Aichele.

Reporters “have no constitutional right to enter a polling place to gather news,” Judge Fischer found. The distance protects voters from being distracted or harassed.

Ten feet is “the vertical distance between a basketball court and a basketball hoop,” she wrote. “Anyone who has seen a player slam dunk knows that ten feet is not an insurmountable distance.”

Judge Fischer acknowledged a contrary 6th Circuit decision from 2004 and rejected its reasoning.

Just days before the 2012 election, on November 1, the 3rd Circuit affirmed Judge Fischer’s opinion in a short, unanimous judgment, noting that it would explain its reasoning in a later opinion.

In Beacon Journal Publishing Co. v. Blackwell, the 6th Circuit case, the Akron Beacon Journal newspaper sued the Ohio secretary of state over a directive barring reporters from polling places during voting. Ohio law states that only voters, election officials, police officers and the like are allowed. The paper asserted that the law had not previously been read to bar reporters.

Judge Eric Clay’s opinion for the 2-1 majority stressed that “[d]emocracies die behind closed doors,” quoting an earlier case.

Under the First Amendment, Judge Clay ordered officials to grant “reasonable access to any polling place for the purpose of news-gathering and reporting so long as [reporters] do not interfere with poll workers and voters as voters exercise their right to vote.”

Frederick Frank, an attorney for the Post-Gazette, recently pointed to the circuit split and indicated that the paper will appeal its 3rd Circuit loss.

The case “raises a significant constitutional issue, which the United States Supreme Court should address, and has not directly addressed, which is the right of reporters to report on the election process,” Frank said, in a Post-Gazette article.

Two items to watch as the appeal moves forward:

First, the Supreme Court would almost certainly prefer to consider the case with the benefit of the lower appellate court’s reasoning. Depending on when it comes out and what it says, the 3rd Circuit’s explanatory opinion could change the timing and analysis of the petition for certiorari. The time to file runs from the November 1 judgment, but the Post-Gazette could seek extensions, if needed.

Second, the Supreme Court may want to let the press-access issue develop further in the lower courts before granting certiorari, particularly because the pressure of the election season has passed for now.