The Senate Daily Press Gallery announced yesterday that it did not err in April by rejecting SCOTUSblog’s application for press credentials, thus confirming that it did err in April 2013 by granting SCOTUSblog’s application for press credentials. The gallery explained the reversal by … making no reference to it. Confused? Welcome to the Senate Daily Press Gallery.

It’s not entirely clear how we got here. Although the gallery’s latest decision did include some reasoning (more below), its earlier decisions—first to credential the site and later not to renew the credential—were made without comment. Moreover, the gallery’s Standing Committee, the group of journalists who handle applications for Senate credentials, has been anything but transparent throughout the decision-making process, such as it is (again, more below).

Beyond those procedural issues, the substance of the committee’s decision, and the questions it put to SCOTUSblog during the appeal process, raise a number of concerns. The merits of SCOTUSblog’s application are complicated. But the committee repeatedly interpreted its rules in the most restrictive way possible, and failed to appreciate the strength of the editorial firewalls SCOTUSblog has built. Underlying both of those stances is an apparent preference for traditional media forms, at a time when the turmoil in the news industry makes non-traditional outlets more vital than ever to public affairs reporting.

In a post commenting on yesterday’s decision, SCOTUSblog publisher Tom Goldstein wrote, “It seems a shame to erect obstacles to access when organizations like ours share the values and further the goals of journalism. We reach a lot of people. No organization in the nation’s history has devoted nearly the resources we have in covering this important institution.”

Against that backdrop, let’s take a closer look at the Standing Committee’s decision and the events that led up to it.

A brief history

SCOTUSblog is not—and never has been—credentialed by the Supreme Court, which historically has given hard passes only to journalists and news organizations that have credentials from the Senate or White House (the White House, in turn, makes Senate credentials a prerequisite).

Goldstein approached the gallery in 2004, around the time he hired Lyle Denniston as SCOTUSblog’s lead reporter, to discuss whether the site could be credentialed. He said the gallery told him then and thereafter, for eight years, it would not be worthwhile to apply, for various reasons. Denniston uses his hard pass for WBUR, for which he also files stories, to report for SCOTUSblog.

In 2013, after the site secured its Bloomberg sponsorship and developed firewalls to separate the site from Goldstein’s law firm, the gallery credentialed SCOTUSblog. Goldstein later wrote that the Court declined to recognize that credential, saying instead it would review its credentialing policy. That review is ongoing.

Finally, two months ago, the Standing Committee rejected SCOTUSblog’s application for credentials—to renew Denniston’s pass and to obtain a second pass for Amy Howe, the site’s editor. Goldstein asked the gallery to reconsider its decision, which it did not explain, at its May meeting—and things got interesting.

The appeal hearing

Goldstein appeared alongside Denniston, for 90 minutes, at the Standing Committee’s meeting May 23 to petition for a credential and answer questions. Committee chairwoman Siobhan Hughes, of The Wall Street Journal, opened the hearing by saying the gallery doesn’t “make decisions based on popular pressure” and that she “personally” feels “great pressure to get this right.”

Hughes also said the burden of proof is on the applicant and that “we have to feel satisfied that the applicant and his or her publication both qualify” under the credentialing rules. However, she did not explain the burden—the necessary extent of the satisfaction—at the hearing or otherwise, a notable omission because it’s not enough to say the burden is on one party if that party doesn’t know how far he must go to meet the burden.

For her part, gallery director Laura Lytle, who doesn’t serve on the committee, told CJR at the hearing that written rules govern the committee’s decision-making process—but in emails later she described the rules as “informal” and unwritten. [Update: After this article was published Lytle contacted CJR to emphasize that the committee has written rules, but not written rules governing the appeals process. CJR’s initial query about whether written rules govern the appeals process was not clear to her, she said.]

During the hearing, the committee members—Peter Urban, of Stephens Media; Colby Itkowitz, of The Washington Post; Kate Hunter, of Bloomberg; Emily Ethridge, of CQ/Roll Call; and Hughes—devoted most of their questions to editorial independence. Goldstein’s dual ownership of the blog and firm, and his role at each, was clearly a concern. Several times, Goldstein likened himself to media owners, such as Jeff Bezos, who wear multiple hats that are not all journalistic. In response, Itkowitz said Bezos isn’t the Post’s publisher, and Amazon employees aren’t writing for the paper.

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.)

Third, for SCOTUSblog to be editorially independent of Goldstein and the firm, the committee said, it cannot “serve as a client-generating vehicle for either.” That’s significant here because Goldstein “uses SCOTUSblog as a platform for publicity…, making the blog part of his personal brand,” according to the committee, which also found the site’s editorial firewalls inadequate. “For a firewall to satisfy the Standing Committee, it would separate the law practice from the publication to prevent the law practice—which is an active advocate before the Supreme Court—from influencing editorial content.”

To support those comments, the committee noted:

[A]t least two people work on both sides of the firewall. Mr. Goldstein, who earns his living at the law firm, controls the blog’s editorial direction and has day-to-day story conversations with SCOTUSblog reporters. The firm manager of Goldstein & Russell also works as the deputy manager of SCOTUSblog. Three of the firm’s four lawyers are listed on the SCOTUSblog masthead. Other contributors to the blog represent clients before the Supreme Court, and the blog covers their cases without noting their relationship to SCOTUSblog. The blog and the firm share office space and resources. Far from keeping the blog editorially independent of the law practice as the rules require, these policies appear to permit the law practice to blend in with the blog.

For those reasons, the committee said, it would not reconsider SCOTUSblog’s application, and it “looked no further at other questions” raised by the application.

No doubt, SCOTUSblog is a puzzle—in large part because of Goldstein. Yes, he practices before the Court, and, as CJR reported in April, for many years he funded the site out of pocket: $250,000 per year from his law practice. Moreover, Goldstein has said he’s not a journalist, and that he has an “ethical obligation as an officer of the court that supersedes any other ethical obligation.” Goldstein said at the May hearing that he does his “level best” to balance the competing interests, and Hunter said that basically means, “It’s just up to you to sort of do the right thing in any given instance.”

Those facts do challenge the site’s editorial independence, but SCOTUSblog’s firewalls are stronger than the committee suggests—and when Goldstein asked the committee at the May hearing what more he could do to separate the site and firm, the only suggestion, from Itkowitz, was the creation of a journalistic advisory board. We’d be remiss, too, if we didn’t at least note the image and credibility problems of a gallery unwilling to credential SCOTUSblog but more than willing to credential foreign correspondents employed by state-run or state-owned publications, whose home countries lobby the federal government.

Finally, the most disappointing part of the Standing Committee’s decision is its apparent preference for traditional news media. As a Harvard study reported recently, citizen and independent journalistic activity, some of which might be characterized as conflicted or activist, is critical in the current news environment, in which the production and distribution of news is more dispersed than ever—and the traditional news media are reinventing themselves to survive. Non-traditional forms of journalistic activity are vital to public affairs reporting as the economic foundation of newspapers, the chief source of such reporting, continues to erode.

According to the Harvard study:

Many … who undertake independent journalistic activity … are likely to be motivated by personal concerns over particular issues, whether social, political, environmental, or otherwise. But [that motivation] may raise questions about the objectivity of their reporting … Credentialing organizations might be concerned that these individuals would either report on events in a biased fashion or (less likely) use their access to restricted locations as an opportunity for protest … The practice of denying credentials based upon perceptions of bias can all too easily lead to viewpoint-based decisions made to protect the credentialing organization itself rather than the public. 

Amen.

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Sara Gregory and Jonathan Peters reported this article jointly. Gregory is a journalist at the Student Press Law Center, where she writes about free press and transparency issues. Follow her on Twitter @saragregory. Peters is CJR's press freedom correspondent and an assistant professor of journalism at the University of Kansas. Follow him on Twitter @jonathanwpeters.