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.
