Conservative group MacIver asks U.S. Supreme Court to take case over access to Tony Evers press events

MADISON – A conservative organization is asking the U.S. Supreme Court to take up their challenge of Democratic Gov. Tony Evers' decision to keep its writers from attending some press events, which has been upheld by lower courts.  

The Madison-based John K. MacIver Institute for Public Policy is appealing a unanimous federal appeals court ruling earlier this year upholding the Evers policy, asking the nation's highest court to hear the case. 

Former Republican Gov. Scott Walker filed a brief with the court on Tuesday in support, arguing the federal judges' rulings allow censorship by picking which reporters attend press events.

"... those events which have long been opened for press activity — press conferences, press briefings, and the like — are, by their nature, generally closed to the public and thus, under this Court’s precedent, permit maximum governmental censorship at the precise time when one might express free press rights to be at their zenith," wrote Walker and attorneys from the conservative legal firm Wisconsin Institute for Law & Liberty.

Walker as governor did not invite all reporters and writers who cover state government and politics to all press events or budget briefings, either. 

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MacIver sued Evers in 2019 after being left out of media events, including a budget briefing with reporters. It argued the governor violated the think tank's rights to free speech and equal access by not notifying it about Evers' public appearances.

A panel of the 7th Circuit Court of Appeals in Chicago ruled in April that Evers' practice of keeping MacIver out of some events was not based on the group's ideology. The governor is allowed to hold events with some media organizations but not others, the judges concluded.

"We find that the Governor’s media-access criteria are indeed reasonable and not an effort to suppress MacIver’s expression because of its viewpoint," Judge Ilana Rovner wrote for the panel.

"The Governor contends that its criteria are intended to consider limited space constraints, address security concerns, and ensure that those in attendance will maximize the public’s access to newsworthy information, and be more likely to abide by professional journalistic standards such as honoring embargoes and off-the-record communications."

The organization argued it should be treated like other media outlets because it routinely covers legislative meetings and other events in the state Capitol. MacIver's writers have attended some of Evers' news conferences but have been kept in the dark about others and were left out of budget briefings.

MacIver's attorney, Daniel Suhr of the Liberty Justice Center, said at the time that "the journalists at MacIver have the same constitutional rights as every other journalist."

U.S. District Judge James Peterson last year also ruled Evers had not discriminated against MacIver based on its views and could limit who attends his press events.

MacIver appealed, and the appeals panel unanimously sided with Peterson. The appeals judges said it was reasonable for the governor to put limits on who can attend some events. 

"We cannot fathom the chaos that might ensue if every gubernatorial press event had to be open to any 'qualified' journalist with only the most narrowly drawn restrictions on who might be excluded," Rovner wrote. "And no one’s needs would be served if the government were required to allow access to everyone or no one at all."

Walker and WILL attorneys argued that in the case of press conferences and limited-access press events like the budget briefing, where certain reporters are invited to attend, "the relevant speakers are government actors, not journalists in attendance."

"Journalists do not attend such events to express themselves, but instead to gather information; a journalist might attend such an event and never utter a single word. And although journalists might engage in private speech when asking questions, and the government seek to restrict such speech, that is not this case. This case involves the threshold issue of access by press to a press event for any purpose."

Patrick Marley and Mary Spicuzza of the Milwaukee Journal Sentinel contributed to this report. 

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.