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Supreme Court Should Protect Nonprofit Journalists from Discrimination

October 13, 2021

October 13, 2021
By Jacob Huebert

Should government officials be allowed to choose which journalists report on them?

Most Americans probably would say no, because the First Amendment’s guarantee of freedom of the press protects everyone equally. But Wisconsin Governor Tony Evers thinks otherwise: He’s barred reporters from the MacIver Institute—a think tank that promotes free markets, individual rights, and limited government—from attending his press briefings, specifically because they’re employed by the MacIver Institute.

The Liberty Justice Center sued the Governor on MacIver’s behalf, arguing that denying its journalists equal access violates their First Amendment rights. Now it’s asking the Supreme Court to hear the case, and the Goldwater Institute—joined by the Reason Foundation and the Maine Policy Institute—has filed a brief supporting MacIver.

MacIver’s reporters are legitimate journalists by any reasonable standard. They’re professional, full-time reporters who have won awards in previous jobs working for other news outlets, and they’re credentialed by the Wisconsin State Legislature.

But Governor Evers says MacIver’s reporters don’t satisfy “neutral factors” his administration established—after it had already decided to keep MacIver out—to determine who will be admitted to his press briefings. Those “neutral factors” include, among other things, whether a given journalist is “free of association that would compromise journalistic or damage credibility” and “avoid[s] real or perceived conflicts of interest.”

Those factors might sound good at first, because they suggest the Governor is concerned that reporters admitted to his press conferences be objective and credible. But First Amendment rights in no way depend on an individual’s objectivity or credibility. Under the First Amendment, judgments about who is an objective or credible news source are for the people, not the government, to make.

And, as the Goldwater Institute’s brief points out, to exclude nonprofit journalists is to exclude organizations paying an important role in the evolving news marketplace—especially when it comes to covering state government. As newspapers have cut staff or closed, the number of reporters covering state government has dropped sharply, and reporters employed by think tanks and other nonprofit or advocacy groups have helped to fill the void. For example, The Center Square, a wire service operated by the nonprofit Franklin News Foundation, covers state government in 13 states, writing from a “taxpayer” perspective, and it makes it stories available to newspapers for free.

MacIver is not the only entity that has been recently targeted in such a manner.The Maine Policy Institute’s Maine Wire project has been reporting on state government in Maine for ten years. Yet last week, Maine Wire was told it would be excluded from the Maine Center for Disease Control’s COVID-19 press briefings, as would a news organization operated by the progressive Maine People’s Alliance, because the agency deemed them “advocacy journalists.” The Maine CDC has since reversed that decision—at least for its next press conference.

Nationally, journalism projects sponsored by think tanks and advocacy groups cover national stories they believe traditional media outlets won’t sufficiently cover. On the left, for example, the Center for American Progress long operated the ThinkProgressnews organization to cover stories of interest to progressive reporters and readers. On the right, the Heritage Foundation’s Daily Signal covers stories it believes would otherwise go unreported or underreported.

And while those projects might be relatively new, journalism sponsored by nonprofits with an ideological perspective is not. The Reason Foundation has long published Reason magazine, which has a libertarian point of view and has won many mainstream journalism awards. On the right, the National Review Institute publishes National Review. On the left, the Foundation for National Progress publishes Mother Jones. And Consumer Reports, winner of many journalism awards, is owned by a nonprofit advocacy organization.

Whatever one might think of any of those magazines’ editorial perspectives, few would deny that they are engaged in journalism as legitimate as any—at least as far as the First Amendment’s guarantee of freedom of the press is concerned. Their journalists should enjoy the same First Amendment protection as any others.

Again, First Amendment rights do not depend on whether a speaker or writer is “objective.” In fact, when the First Amendment was written, the idea of media “objectivity” was virtually unknown, as almost all newspapers were openly, aggressively partisan.

And the very purpose of the First Amendment is to forbid the government from deciding in advance who does and does not qualify as worthy of the freedom of press or speech. The Founders believed in objectivity—but they did not trust the government to determine who qualifies as objective. Of course, government officials will inevitably tend to deem those who give them favorable coverage “objective” and deem those who expose unflattering things about them or their policies to be biased.

Besides, having competing perspectives in the marketplace of ideas is valuable. It allows the public to learn from all sides of a political dispute so that they can determine the truth.

Finally, Goldwater’s brief points out that there is no reason to think that the corporate media are inherently more objective than nonprofit organizations. Many people believe the corporate media’s news coverage is biased because, among other reasons, it is influenced by media outlets’ corporate parents’ financial or political interests, or by the political views of its staff.

In fact, most Americans today do not find the traditional corporate media credible at all: 56 percent believe journalists “are purposely trying to mislead people by saying things they know are false or gross exaggerations.” And approximately 60 percent think news organizations are more concerned with supporting an ideology than with providing information and are “not doing well at being objective.”

In light of these facts, the idea that nonprofit organizations are systematically less reliable or objective than traditional corporate media is itself not credible. And it certainly cannot provide a basis—much less a constitutional one—for distinguishing between journalists aligned with nonprofits and those aligned with legacy institutions.

The point here does not depend on whether any of the common criticisms of corporate media are accurate. The point is that their objectivity and credibility are widely disputed. And, under the First Amendment, that dispute is one for the people, not the government, to address. The Supreme Court should hear the MacIver Institute’s case to make that clear to Governor Evers and to any other officials who would deny nonprofit journalists equal rights.

Jacob Huebert is a Senior Attorney at the Goldwater Institute.



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