Party like it’s 1999 — the denial of a press credential to SCOTUSblog

The Standing Committee of Correspondents of the Senate Press Gallery — a reporters’ organization, not a government entity — has upheld the denial of a press credential to SCOTUSblog. Because the Supreme Court’s press credential decisions generally turn on whether an entity has gotten a credential from the Senate Press Gallery, this means SCOTUSblog won’t have a credential to cover the Court, either. This will make it harder for SCOTUSblog to cover the Court than it is for mainstream media organizations, though it won’t make such coverage impossible. (Tom Goldstein of SCOTUSblog has his own post about this.)

This, it seems to me, is more than just a mistake in this case — a denial of a credential to the most important and valuable source of news and analysis about the Supreme Court. Rather, the decision shows that the Press Gallery (whether because of the structure of its rules or because of its application of the rules) is missing one of the key advances brought about by Internet media technology.

By making it possible for anyone to communicate to the world at large, the Internet makes feasible (among other things) reporting and analysis by experts in the field — not just reporters who often lack the experts’ experience, education, or specialization, and not just by large mainstream media organizations that understandably lack a commitment to truly deep coverage of a particular issue.

If you’re interested in the latest decisions about computer crime law, you are no longer limited in reading what reporters who know little about computer crime law have to say about it; you can also come to this blog and read Orin Kerr, the leading American expert on computer crime law. If you’re interested in breaking news stories about appellate decisions, you can read appellate lawyer Howard Bashman’s posts on How Appealing. If you’re interested in linguistics stories in the news, you can read the linguistics professors at Language Log. If you’re interested in the Supreme Court, you can read the unparalleled resources put together by SCOTUSblog, which was founded by Tom Goldstein, one of the nation’s leading Supreme Court litigators.

And you can read these items without the filtering, oversimplification, and distortion that usually happen when nonexpert journalists write about technical issues — and that often happen even when the best, most knowledgeable nonexpert journalists write about such issues. Of course, you can still choose to read nonexpert journalists’ stories on the subject, precisely because you value the filtering and simplification that the nonexpert journalists provide; often, that’s what one wants, especially on subjects in which one has only modest interest. But sometimes, you want to go straight to someone who has decades of professional experience actually working on what he’s writing about.

Yet the Senate Press Gallery decision excludes a wide range of such expert writers. Here’s the Committee’s first rationale:

The [press credential] rule says the publication must be editorially independent of any institution that lobbies the federal goverrunent. At the meeting and elsewhere, law-firm partner Thomas C. Goldstein said he controls the editorial direction of the blog and determines areas of coverage. At the same time, Mr. Goldstein advocates before the Supreme Court, which is a form of lobbying the federal government. Thus, SCOTUSblog fails the test of editorial independence from any institution that lobbies the federal goverrunent because it is instead editorially intertwined with a law partner and a firm that lobbies the federal government.

This essentially means that pretty much any blog on law published by lawyers (or law professors who practice in federal court on the side, pro bono or otherwise) doesn’t merit a press credential, because it’s run by people who “lobby[] the federal government” by litigating in a federal court. Likewise, a science blog published by scientists who write letters to federal agencies urging certain decisions on global warming or public health or space funding wouldn’t merit a press credential for the same reason.

But wait! The very reason many people might read these blogs is that they are published by experts who know what they’re talking about — lawyers who actually understand how the courts works, because they practice before the courts, or scientists whose opinions federal agencies might find worth considering. The expert’s day job, which makes his reporting or analysis more worth reading, ends up disqualifying the expert from a press credential.

Here’s the second rationale:

The rule says that the publication must be editorially independent of any institution that is not principally a general news organization. That means SCOTUSblog would need to be editorially independent of Mr. Goldstein and the firm, Goldstein & Russell, because neither is principally a general news organization. As stated above, SCOTUSblog is not editorially independent of Mr. Goldstein or Goldstein & Russell.

Given that “Mr. Goldstein” himself is viewed as an “institution” by this analysis — presumably on the theory that his primary line of business is lawyering — this means that no one who has a non-mainstream-media day job, and no publication run by such a person, would qualify for a press credential. And even if the rationale is amended to just focus on connection with an actual non-news-organization “institution,” this would mean that blogs connected to a university, a research organization, a law firm, or any other group would be excluded. So if several bloggers blogged as part of some UCLA First Amendment Law Institute or George Washington University Computer Crime Law Institute or Berkeley/UCLA environment law collaboration, or as part of any other research organization, then they would be seen as insufficiently worthy under the Committee’s rationale — even though the institutional affiliation may again be connected with the bloggers’ expertise and reputation, the very things that make their posts especially valuable.

Finally, the third rationale:

For SCOTUSblog to be editorially independent of Mr. Goldstein and his law firm, it could not, under the rule, serve as a client-generating vehicle for either. But as recently as last year, Mr. Goldstein told the American Bar Association that SCOTUSblog indirectly accounted for 75 percent of the law firm’s Supreme Court business. Mr. Goldstein also uses SCOTUSblog as a platform for publicity material about himself, making the blog part of his personal brand.

Again, a lot of experts speak to the world in large measure to become more famous and more respected — to build their “personal brand.” And, if they are working professionals in some field (whether as lawyers, consultants, expert witnesses, or have you), this will make the blog a client-generating vehicle. Indeed, the blog’s ability to generate clients can help keep the blog going, especially for bloggers who don’t have well-paying academic jobs.

But beyond this, consider the striking 1900s focus of the rationale. After all, most traditional newspapers and other mainstream media sources serve as “client-generating vehicle[s]” for themselves, just with the clients being the advertisers. A newspaper may cover news in large part to build its brand, in a way that attracts readers that then attract businesses that will pay money for advertisements. That’s just fine, of course — but when an expert covers material in part to build his brand, in a way that attracts clients that will support him while he blogs, that’s somehow awful.

Now of course having a day job, and trying to attract clients, can create temptations to biased or even dishonest coverage. And having a newspaper to fund, to the tune of tens of millions of dollars a year, and trying to attract advertisers, can create such temptations, too. Lots of other things can create temptations to bias or dishonesty, of course, including political commitments, personal political ambitions, personal hostilities, the fact that a newspaper is owned by a conglomerate or by a businessperson who also has outside business interests, and so on.

There are many tools that help fight these temptations, however imperfectly: disclosure of possible sources of conflict of interest; policies that editorial decisions can’t be affected by advertising considerations (or by client considerations); and more. But we don’t treat a newspaper as the press just because it serves as an advertisement-generating vehicle, or because its owner — who may have very substantial editorial input — has outside business interests. The same should be so for blogs.

I agree that, when there is scarce space in the press gallery to be allocated, someone needs to decide who should get this space and who shouldn’t. As I’ve argued elsewhere, First Amendment protections shouldn’t turn on whether one is a member of the “media” or not; but additional benefits, beyond those secured by the First Amendment, such as press gallery access, carrels in a press room, and the like, often can’t be given equally to everyone. But any decisions on who gets these benefits should turn on the actual value of the public service the applicants provide (or reasonable proxies for that value). And one of the glories of the Internet media age is precisely that some of the most valuable sources of information now come from experts who also have other professions — not just from professional reporters who often lack the experts’ expertise.

* * *
Disclosure: (1) SCOTUSblog is one of the blogs I’m representing on a different “who is ‘media’?” issue now pending before the Texas Supreme Court. (2) As the discussion above should make clear, most of the arguments the Committee gives for denying SCOTUSblog its credential would apply equally to my co-bloggers and me, should we seek a credential (which I don’t think any of us is planning to do, and which at this point might properly be denied to us on other grounds, such as the much lesser amount of coverage of the Supreme Court and Congress that we provide compared to SCOTUSblog).
Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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