Goldstein explained the firewalls the site has established in recent years to distance itself from any real or perceived conflicts of interest with the firm. It’s been an evolving process, he said, ever since Denniston came aboard. The rule now is that no one who works for Goldstein—on the SCOTUSblog or firm side—can write about cases before the Court in which the firm is involved (the one exception is that when the Court grants a petition for certiorari, the blog will note it).
At times, committee members asked questions that missed the target. For example, Hunter said to Goldstein, “Our rules state that the principal business [of an applicant] has to be the daily dissemination of news and opinion. Is that yours as the publisher?” In reality, whether it is Goldstein’s principal business is immaterial. The rule doesn’t focus on any one person in the organizational chart; it focuses on the organization itself. Moments later, Hughes asked Goldstein if he planned to litigate if he was unsatisfied by the committee’s decision, a wholly irrelevant issue under the rules.
“SCOTUSblog failed in three ways”
All of which brings us to yesterday’s decision, released in the morning at a Standing Committee meeting. Goldstein learned of it on Twitter as he and others at SCOTUSblog were preparing to report on opinions soon to be handed down at the Supreme Court. He said he received an email from Lytle, roughly 30 minutes after seeing the decision on Twitter, notifying him of the decision and setting out the reasoning.
The email began by noting the gallery’s credentialing rules, which state, in part:
The applicant … must not be engaged in any lobbying or paid advocacy, advertising, publicity or promotion work for any individual, political party, corporation, organization, or agency of the U.S. Government, or in prosecuting any claim before Congress or any federal government department, and will not do so while a member of the Daily Press Galleries.
Applicants’ publications must be editorially independent of any institution, foundation or interest group that lobbies the federal government, or that is not principally a general news organization.
The email went on to say, “SCOTUSblog failed in three ways to convince the committee” it met the credentialing rules. First, the committee said, Goldstein “advocates before the Supreme Court, which is a form of lobbying the federal government,” all while controlling the site’s editorial direction. Thus, the committee concluded, “SCOTUSblog fails the test of editorial independence from any institution that lobbies the federal government.”
The committee’s concern is understandable—it doesn’t want pleaders of special interests to obtain a credential—but it’s a stretch to argue that the practice of law in federal court, in particular the Supreme Court, is a form of lobbying. (Where are the disclosure and registration requirements?) Obviously, lawyers are capable of lobbying, and the practice of law can overlap with lobbying (e.g., in the activities surrounding a quasi-judicial hearing), but litigating and lobbying are not one and the same.
Indeed, in April, CJR interviewed Jim Drinkard, an AP editor who chaired the Standing Committee in 2003-2004, and he said the lobbying language, at the time it was drafted, was not intended to apply to the practice of law. If the committee wants to address real or perceived conflicts that arise from the practice of law in federal court, it should amend the rules to do so—rather than trying unpersuasively to treat one as a form of the other.
Second, the committee said, a “publication must be editorially independent of any institution that is not principally a general news organization.” In other words, SCOTUSblog must be editorially independent of “Goldstein and the firm … because neither is principally a general news organization.”
This is an odd bit of analysis, in part treating Goldstein as an “institution” and faulting him personally for not being “a general news organization.” In addition, if you take that reasoning to its logical end, in the absence of limiting language, it means that no person whose principal job is something other than news can qualify for a credential—and the same goes for any publication owned or directed by any person whose principal job is something other than news. This could exclude a wide variety of players in the journalistic ecosystem, among them most investigative reporting centers connected with a university. (As Goldstein notes in his post on the decision, “the Committee construes that requirement of independence in the broadest way possible: to forbid an overlap in personnel.)