Q: I am a journalist that covers Capitol politics. This year, my request for Capitol press credentials from the Capitol Correspondents Association of California (CCAC) was denied. Their reasoning was this: one of my publishers also has a political consulting business – the CCAC board believes payments to him violate CCAC bylaws. I am in no way affiliated with the political consulting business, however they are leveraging this connection to inhibit my journalistic access. Is there a First Amendment violation here?
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A: I am sorry to hear the Capitol Correspondents Association of California (“CCAC”) denied your application for a press credential. Your inquiry raises several questions about the First Amendment and, specifically, the ability of the government to regulate free speech and the press.
From what I understand, the CCAC purported to deny your application based on Article XI of its by-laws, which “prohibit[s] the credentialing of any applicant employed by or receiving any compensation, directly or indirectly, from any lobbyist or lobbying association, any state office holder or candidate for state office.” CCAC By-Laws, Article XI. A brief review of the by-laws indicates the CCAC’s decision is not final; rather, its role is to evaluate candidates and then provide recommendations to the Legislature and Governor’s Office for media credentials. CCAC By-Laws, Articles V, XI. “Applicants recommended for denial shall be informed in writing their right to appeal to the Joint Rules Committee and Governor’s Office, which shall have final authority of issuance of press credentials.” CCAC By-Laws, Articles XI. Your first step, therefore, may be to file an appeal as set forth in the by-laws, or to follow up with the CCAC regarding your right to an appeal. You might consider hiring an attorney to help you prepare for the appeal as that may be your best shot for getting the press credential.
As far as the First Amendment goes, generally speaking, any government restriction on speech or the press that is based on the content of the speech is held to the highest First Amendment standard. See, e.g., Boos v. Barry, 485 U.S. 312 (1988). If, for example, you can show that, after the appeal, the application was denied because the CCAC disliked the content of your writing, then you may have a strong argument that the denial is in violation of the First Amendment as an unjustified content-based restriction. This may be difficult to demonstrate in your case, however, because the CCAC has claimed it denied your application based on its by-laws.
Alternatively, you might argue that the by-laws themselves are inconsistent with the First Amendment. Though I have not found a case discussing your particular issue regarding press credentials, in an analogous context, the First Amendment generally requires that laws that regulate speech through permit requirements must be narrowly drawn and have reasonable and definite standards for officials to follow. See Niemotko v. Maryland, 340 U.S. 268, 271-72 (1951); Quad-City Cmty. News Serv., Inc. v. Jebens, 334 F. Supp. 8, 17 (S.D. Iowa 1971) (“Regulation in the area of free expression can only be tolerated when a public official’s discretion is guided by narrow and specific standards which advance a compelling state interest.”). But, because the by-laws appear to have several safeguards in place to ensure that press credentials are not arbitrarily denied – e.g., application and appeal process, approval by another body – this may be a difficult argument to make in your case.
Based on all this, I would suggest that you start by preparing for an appeal and consider seeking assistance from an attorney. In the event you are unsuccessful, your next step may be to consider filing a lawsuit.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.