morning everyone and welcome to all the morning before we start let me just say that we will be quite generous with time if we run into any technical difficulties our experience thus far as a court with remote arguments has been positive but as you all know from day to day with conference calls and zoom connections and what have you we sometimes experience difficulties so if we do no worry everyone will have ample time and we'll take a ten minute break after this morning nd oral argument so i think with that we're prepared to begin with our st case of the morning number tw your morning your honor thank you your honor this knowing what's truly scary is the idea that the governor and target award winning professional journalists for exclusion from the capitol press corps based on their viewpoint this course of fall the u s supreme court's structure for press freedom claims and more specifically the presidents of its sister circuits the st nd in d c in recognizing the right to equal access among journalists generally available government information events and they find this right is protected by strict scrutiny which is the test that we extend a fundamental rights like this one and if you reach that conclusion you don't have to look into the question of viewpoint discrimination because it sort of strict liability offense the mere denial of access in of itself i think is sufficient to find a constitutional violation now this you're sure in in the br you say that the no one public forum analysis for free speech is not the best fit for the situation by that token neither is your freedom of press analysis we usually apply strict scrutiny when the government trying to stop the press from publishing or just  information but no one is stopping anyone from printing or publishing or to send the dating anything here are they no one is forbidden to report on the  fact of it am i right i think your honor should start by looking at the minneapolis star tribune an arkansas writers project cases from the u s supreme court you're right in many other instances of the court uses need to look at prior strengths and that's not the case we have here a bit minneapolis star tribune in arkansas writers project are both cases where other court was looking at discrimination mongst in between different types of in fact we may need to start over we'll have to see when we lost him i i noticed it i don't know when i noticed it but we may have lost him early on i think we had him  i'm the one that caught there would be a problem this is the st time i'm using  ok so why don't we start about all we can do i'm really sorry and i'm sitting here and you know are now known to you do your own just why don't we just begin again judge rove harassment question i am sure she can ask it again and i think in fairness to all let's just start again she governor may selectively target two award winning professional journalists or exclusion from the capital crime score based simply on their viewpoint this court should follow the us supreme court's brainwork for press freedom claims and join the st nd in d c circuits in recognizing a right of equal access amongst journalists generally bill press information and in doing so no finding as to viewpoint because their viewpoint discrimination here  and i might somewhat agree with that but i also think at this point neither is your freedom of press analysis because we usually apply strict scrutiny when the government is trying to stop  the press from publishing word or disseminating some sort of information you see here no one is stopping anyone then this is not a public forum like a sideways walk where a park it's a non public for you know your honor so i think a better starting point maybe for the press freedom analysis is this great the supreme court's decisions in minneapolis star tribune and arkansas writers project because you're right this isn't sort of a traditional case prior restraint likes it pentagon papers but in minneapolis star tribune and in arkansas writers project this figure was dealing with a very similar situation namely that the government was discriminating against and so in those instances to know what was being prevented from printing what they were subject to these uniquely burdensome taxes and in both of those cases the supreme court decided to apply a strict scrutiny and on both of those laws and i think rescind one place here where the governor has discriminated against a particular news outlet and said you know is it only you guys are prevented from coming to my press conferences great scrutiny proposal if the governor's press room hold thirty report years and three hundred r s v p that they would like to attend the function are you saying that the governor is going to be put in a position a situation where he has to come up with a compelling reason why each of the three hundred dollars others were chosen the new minimum in our briefs i think we use the air force one analogy has the right one right there a limited number of seats another example would be the supreme court of the united states own press room which is a limited number of seats and there you just do it a kind of traditional the press corps runs well let's let's the the white house the white house press room is in is an easy thing for all of us to picture in our minds because we see it so often over the years and i think judge are owners she's undoubtedly correct about limited number of seats in there and how exactly if we were to adopt strict scrutiny how is a very nuts and bolts practical matter would the narrow tailoring pran of wrote a letter to any president over the years and said i'd like to attend you know the upcoming white house press conference and he was denied how should a court go about an application of the narrow per tailoring  scrutiny in your view so i think neutral criteria are the right analysis and a simple rule like circulation of a newspaper or other media outlet would be appropriate so said you you know only have one thousand people who visit your website we've got to keep room for the new york times i think that would be appropriate you know what we have here is very different though to in my clients are being denied access to that list not because they don't have it in circulation not because they aren't award winning professionals or lists it's because of their viewpoint i would like you to help us up bit more with the jet judge cutter's question to you what is the criteria by which he who think that gov can limit access what do you think is a means that would satisfy what you think is the test here the least restrictive means in other words i want to know what your invitation and your admission criteria should be sure your honor so i think two things one obvious in these you want to circulation if you're dealing with a limited question of how many seats on air force one if you give them out in a neutral principle like circulation i think that's acceptable when you're dealing with an open ended list like say the media we've also said in our briefs that sticking to professional journalistic norms is an appropriate criterion that it's ok for the government to say you have to obey embargoes you have to respect the difference between on the record and off the record i think really the question is in that sort of situation can the government start by setting up really high barriers to entry like we have in these supposed great syria or should we have a more open access policy where if somebody which raises those journalistic norms they lose their access rights thank you not to be very honest with you i am not happy with the idea if  perhaps a great deal more interest and what is happening in the governor's office i would agree with you judge obviously you know for my client we want as open access as possible we think that you know one of the reasons trickster new will be not only constitutionally appropriate but helpful is that it's going to open up his blessing to press access and ensure that smaller publications and newer publications have access to these sorts of precedents where right now the government is restricting access and preventing either new or voices or  aligns you know exactly with what you argue in the brief one of the concerns that i have though is whether the actual record evidence supports some of the propositions you're advancing for example when you when you say that it's as you put it you know clear or obvious that there is viewpoint discrimination going on or that the institute or mr ski has been single out what what can you point us to in the record to demonstrate that as an evidentiary matter sure one hundred so i think you start with most of all the declaration which is actually the  fendant's interaction evidence and there she describes the process by which macgyver has been denied access and it starts with the fact that when the administration st came into office she made a judgment call based on her own experience with no standards just subjectively to exclude macgyver even though we know and this is one of the exhibits that we introduced along souter p i that the list from which she excluded them included democratic party staffers and included legislative staffers and included outside lobbyists so she was saying the kind of or you're not a news organization and you can't get on the west you know the same time you know we know from that  exhibit of the old list that there are a number of organizations on that list who failed this sort of subjective test that she had made up with incident a man letter which is also one of the exhibits and they responded back with a letter that was a very short paragraph saying we use sort of generally neutral criteria answer you guys will and that's one of the exhibits in the record we know at the end of the day though don't we that and maybe mr johnson carp can confirm this we know at the end of the day that the honor but i think we've shown i think pretty clearly that the creature in the june memorandum are still being applied unfairly then for instance the just record in the state of said we have to be an objective journalist under these new criteria and then there are a number of editorial page writers an opinion columnist and radio talk show hosts who are not objective you don't pretend to be objective whose job isn't to be objective so i just i don't know how to assess that against the backdrop of the record we have before us that that's the difficulty that i have so let me just put put it in terms of a question or maybe maybe it's an observation you can react to it mr johnson card can if you came in and you said look i want to compare the treatment of forded mr ski and miss jones and the treatment is night and day different mr jones happens to be a journalist that writes favorable commentary for the gov she too is affiliated with a teen think tank you see where i'm going with that and i just don't see evidence in the record of that if i did i you know some of the cases that you draw upon the church will kill me babbling for example it's a free exercise case i know but some of those you know discrimination  application cases they'd have a lot more force because you'd have an evidentiary basis for your argument and i just i just don't see anything like that on the record before us so i think part of that is because there's not another think tank in wisconsin that does with mcgyver institute does that sponsors a new service as one of its subsidiary activities but what we can point to you know our other publications that engage in the editorial page writers are on the governor's proselytized so i think that's the real problem here is that the criteria have been applied you know weighted specifically excludes macliver when for any other and whether it's whether the governor's office could exclude them based  pon content based criteria i think that the issue say if the criteria that governor says he's using were applied equally to other news outlets then they should also be excluded right if you can't engage in policy advocacy as an organization not just the news reporters but the entire news organization can't engage in advocacy then any newspaper with an editorial page or any radio station with an opinion talk show let you save a couple of minutes and we'll hear from mr johnson carp i appreciate that your honor thank you thank you your honors good morning please the court clear precedent from both this court and the united states supreme court for closes just the type of equal access the media respond to the court's discussion with mr sir st of all nothing in the supreme court's precedents recognizes this press clause claim that they rely on  there is no distinction between a press clause claim and a speech clause claim the court's decision in houghton's makes this very clear nd the highest level of scrutiny that would be flexible here is that of the nonpublic forum which is effectively rational basis review plus a viewpoint neutrality requirement and as we discussed in the brief and as judge wrote never pointed out there is a rough fit with form analysis depending on how we view the forum here today but i think the the bottom line is that at most the standard for a non public forum is what would apply and applying that standard the nonpublic forum standard and its viewpoint neutrality requirement what we see is that the governor's standards do meet that viewpoint neutrality requirement and as applied to make i never were properly applied now i'd  lay out in deciding how how a right like this would be narrowly tailored and that's exactly the type of inquiry that the supreme court in houghton's and in its predecessor case brandenburg versus hayes explicitly rejected this is a extreme manageability problem that the court said courts shouldn't be getting into this task deciding who constitutes media and what types of governmental advance or governmental information the so called media would be as a constitutional matter allowed or rather require to have access under a strict scrutiny analysis these types of questions who are media what governmental events are going to be open have been and are best left to the political branches and the political process  as a constitutional matter your honor i i think so i think that would be a viewpoint neutral objective criterion but again that that points up the political process issue the voters would likely be extremely frustrated if their chosen outlet couldn't get access and the way that that  changed is through the political process not as a constitutional matter saying all internet organizations should have st amendment access  very similar so they really aren't meaningfully different as far as i can recall what we're looking at is whether i think fundamentally is this organization principally a news organization does the organization and its correspondents avoid real or perceived conflict of interest  and on those bases the governor's office concluded that the macgyver institute which is a self described think tank engaged in as as they describe it center right policy advocacy that this organization is not principally a news organization and for that reason did not qualify under the governor's media access criteria mr johnson karp suppose for example i know this is i know this is hypothetical that mr wells most ski resigned from the institute this afternoon  and became a freelance journalist it does seem from from the record that he's quite an accomplished journalist and applied for access to the media list as a freelance journalist how would he be treated at that point well i just just for the record i'd like to underscore that the governor's office recognizes collaboration with this think tank i think in the instance of a freelance journalist the criteria would one of the criteria is  involvement with an established news organization one that's been i believe it's eighteen months in publication or in broadcasting and so that might be an impediment in that circumstance but i think as mr sir has pointed out there is some some give in the standards and so if we see a otherwise qualified bona fide journalist who for example is a freelancer then the governor's office might consider allowing that individual to the media advisors immensely under the same viewpoint neutrality consider it right i mean it that it doesn't matter whether you have a republican governor or a democratic governor you know in any vice versa with the journalist the isn't the point of your position that so long as you point neutral criterion are being applied to it many are denying the liberal or conservative journalist that satisfies the  mayor wouldn't play it you know it it's whether the organization that they're publishing for has this whether the criteria are are neutral as to the organization you know i think somebody who votes for a you know a democrat or republican that whatever factor into the analysis and your own you know go ahead follow up so one question i have is i i read your position and i appreciate the candor of your brief there seems to be some modest c n n and the modesty and it is this and it goes to the point i was asking  mr sir about with respect to the evidentiary record that if there were facts that ever developed that showed a differential treatment between neutral on their face or been applied in a discriminatory way have i have i read your position correctly i know you know those facts are not here as you know that's one of the points you make but are you a if they did hypothetically exist that sure you could challenge a policy that way and i don't know that there would be any ability to challenge the policy i think  sure the policy right so it just called right smith institute and journalist jones was was admitted in because i don't know they have a conservative or liberal or whatever viewpoint you want to it doesn't matter same criteria so in that sort of one dollar to one dollar comparison your honor touched on it exactly that the record here just doesn't show  discrimination and i hesitate to to commit to the idea that such a one dollar to one dollar comparison would in every instance support a viewpoint discrimination claim but yes i think that would be a closer case than what we have here if there anything the guy ever could do to ever get included on the invitation list going for it  i i think in theory there is something that there are things that an organization could do i don't know that a think tank committed to policy advocacy would meet these criteria you know that assume that these criteria stay fixed but as we've discussed you know that's subject or circulation or anything like that that might be a you know a different set of criteria that could be adopted to the political process but the criteria themselves i think  barring a change in the macgyver institute would not allow for the institute to gain media access so it's one of the reactions i have and i know we're talking outside the record here i would be quick to acknowledge that is that that that position risks elevating form over substance a little bit and what i mean by that is it doesn't seem to me the world doesn't seem to be one where a think tank of any particular persuasion could not also have a quite meaningful news outlet as as you know part of its research mission and you know thought development knowledge development etc etc and so it surely can't be the case that the macgyver is of the world have to separately incorporate a subsidiary that is dedicated to the dissemination of news does it i don't know that it would have to be a formal subsidiary but there does need to be some separation between the very clearly an advocacy focused organization bear institute as a policy advocacy organization and also met the additional criteria of you know avoiding the appearance or actual perceived conflicts  that if there were such and such an entity then yes that they could qualify under the existing criteria but as judge scott are you recognized on this record we do not have that i mean that's that's just it and i mean it does seem to me and reading i mean this or to his credit seems to be quite an accomplished journalist indeed an award winning journalist and he says in his declaration  affidavit in paragraph four that he produces what looks to be like a weekly television program but they really didn't develop the record at least as i can look at it as i see it on what role of this news commentary program plays in the overall mission you know it it's sadder etc and that's that so it's it's almost like there's another lawsuit or something it's you know that we were talking about around this one in the record you know looking at him a guy ever institutes web site and it's news tab it there really is no difference and i think that's that's why the record is what it is that you know at the preliminary injunction stage and then the request to convert that to summary judgment that there just was no evidence that mcgyver could put in to show that it  had in fact could in fact satisfy these these neutral criteria so they had the opportunity to to present evidence that the governor's application of these criteria was wrong they didn't put in that evidence and instead double down and ask for summary judgment on the narrow record that effectively shows that they are a policy focused think tank rather than a a primarily journalistic enterprise to subject matter of the restaurant then it may be more selective and then the other thing is for the individuals involved here they are affiliated of course with the carver but what rightfully be confined to that issue i don't know that a little bit vague but i'm that's the question that i generated when i listen to this discussion just just so i'm understanding that the going to target some people who may have expertise or have interest in that narrow issue it's not an open press conference where someone has a if you want to be there just because it's a press conference and think that the person that may be the type that he would come in for a specific issue in that in the press conference if that's what it's called or it may be one that could be confined to people that know something about the subject and it's something they're trying to resolve been a long time since i was in government though i don't pretend to know what the best way to operate or circumstance like that will i i think the the they idea of limiting access based on subject matter focus or expertise that there is room for that type of  determination both in the case law and within the gov eve years access criteria as i apologize i don't have a cite but we discuss in our brief the idea  that depending on the subject matter of the the a vent the governor's office might reach out to for example you know local press on a specific local issue or as your honor indicated individuals interested in prison reform if that's what the topic is is going to be at issue that there is room for that sort of determination within the objective neutral criteria and i don't think that that would be problematic but the bottom line is the people to whom that  those invitations would go would still need to meet the immediate access criteria so we would still be talking about the universe of journalists that have satisfied  the governor's neutral you point neutral access criteria and see that my time is up unless the court has any other questions we would ask the court to affirm the judgment below thank your panel and that's true on that panel as well was a reporter from w t m j and a reporter from w i b h u news talk radio stations if you look at exit fifteen dash one which is the new media last you'll see has been treated differently than everybody else and i think it really gets this general conversation we've been having with gave about mr johnson carp about whether mci has a news organization and he never explains if the problem for macgyver is it's a think tank that does policy and news why is that different from a newspaper with an editorial page that does both policy and politics in new why is it different from a politics on the editorial page and it does news a t v station like c n n has shows the do policy and politics advocacy like the sean hannity show and then there are other reporters who do news and yet those news politics like an editorial page in new is a play differently for everybody else mr sir thanks to you mr johnson karp thanks to you will take the case under advise man let me just