JURIST Guest Columnist Sandy Davidson of the University of Missouri School of Journalism and the University of Missouri School of Law evaluates the Third Circuit’s decision to bar members of the press from reporting inside polling places…

Welcome to Humpty Dumpty Land! “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘It means just what I choose it to mean — neither more or less.'”

When the US Court of Appeals for the Third Circuit in PG Publishing Co. v. Aichele talks about a “dangerous precedent which permits the government too much freedom to hide their activities from the public’s view,” it means the US Court of Appeals for the Sixth Circuit’s decision in Beacon Journal Publishing Co., Inc. v. Blackwell. The Sixth Circuit permits the press inside Ohio polling places. The Third Circuit, on the other hand, shuts the door on the press, permitting the government to hold the press at bay ten feet from Pennsylvania polling places. In the process, the Third Circuit also slams the door on logic. It is the Third Circuit that sets a “dangerous precedent which permits the government too much freedom to hide their activities from the public’s view,” not the Sixth Circuit!

On January 15, 2013, the Third Circuit upheld dismissal of the Pittsburgh Post-Gazette‘s lawsuit challenging the Pennsylvania Election Code, which reads:

All persons, except election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers … must remain at least ten (10) feet distant from the polling place during the progress of the voting.

The newspaper argued that reporting from inside polling places was particularly important on November 6, 2012, because that was the first time for use of Pennsylvania’s “Voter ID Law.” The election, however, was a “soft test” of the law, with election officials requesting but not requiring photo ID. What could possibly go wrong with the first-time use of the “Voter ID Law”? The Post-Gazette wanted to know, from inside polling places.

The newspaper brought a First Amendment claim that the law infringed its “right to access and gather news at polling places.” Relying on Burson v. Freeman, which upheld Tennessee’s law to restrict campaigning within 100 feet of polling places, the district court ruled the 10-foot rule was a “[content]-neutral law of general application seeking to protect an individual’s ‘right to cast a ballot in an election free from the taint of intimidation and fraud.'”

The newspaper ran headlong into well-established law that the First Amendment gives no “special access” to the press (e.g., Pell v. Procunier and Branzburg v. Hayes). The Third Circuit applied a two-prong “experience and logic” test, saying that “[b]y applying the experience and logic test, we ensure that the government cannot shroud its activities behind a veil of secrecy merely by banning everyone from a nonpublic forum.”

For the “experience prong,” the court considers “whether a tradition of openness exists for the polling place and the process of voting occurring inside.” Recapitulating Burson‘s historical analysis, the Third Circuit notes the evolution from voice voting to secret voting. For 75 years, Pennsylvania’s Constitution has mandated that “secrecy in voting be preserved.” History thus demonstrates a “long-standing trend away from openness, toward a closed electoral process.” Here the Third Circuit appears to go off the tracks: Secrecy of voting must be secure, but that is different from secrecy of the screening process for getting to vote. Arguably, the court makes a categorical mistake, conflating the act of voting with the government’s screening of those who want to vote. The Pennsylvania Election Code provides for “watchers,” and they apparently do not violate the secrecy provision of the Pennsylvania Constitution.

Under the “logic” prong of the test, the Third Circuit looks at both the “broad ‘values'” that openness serves as well as the “negative effects of openness[.]” The Third Circuit says something that sounds promising for access, quoting from N.Y. Times Co. v. Sullivan: “[W]e begin by noting the rather obvious fact that openness of the voting process helps prevent election fraud, voter intimidation, and various other kinds of electoral evils. ‘[S]unlight… is the most powerful of all disinfectants.'” However, the court continues:

Of course, in situations where the press is not geographically far removed from the proceedings anyway, the benefits of additional oversight are inversely proportional to the distance of the press. The situation in Pennsylvania is a fine example: The press (like the general public) is only ten feet away from the polling place, and we have no tangible or discernible evidence of how the public good would benefit so much more from the press being inside the room, rather than several paces away.

What? Does the court really perceive no difference between being inside a room and being “several paces away” and outside that room?

In a footnote, the court says: “At oral argument it became apparent that the press could simply stand at the 10-foot mark, point their cameras inside the polling place, which we note again is just the room designated for voting, and begin to record the activity.” According to the court, the newspaper “had no satisfactory response as to how or why this procedure would not serve [its] interest.”

How does this recording from ten feet away, pointing cameras “inside” work? Is the door kept open in November? Here is the problem: Although the press is not “geographically far removed,” there is a wall between the press and the persons checking the photo ID, even if there is an open door. Unless the reporters get to arrange the furniture, the photo ID checking might very well be out of the line of vision from ten feet outside the polling place.

The flawed logic could be called “separated but equal.” The press has been separated from the activity, but being close by is equal to being there, the Third Circuit seems to be saying.

The empirical question is this: Is that sign-in table visible at ten feet from the polling place? No requirement on table placement appears in the law.

Looking at the negative side of openness, the court fears opening the floodgates: “The experience and logic test requires that we also examine the potential dangers inherent in openness. Of greatest concern to us is that access for one is access for all.” The court asks: “Who is a member of the press? … [T]he class of persons to whom such a right is applicable is almost boundless.” The court notes: “Access to blogs, smartphones, and an extensive network of social media sites (not the least of which are Twitter and Facebook) have transformed all of us into potential members of the media.” The court also worries about “the confusion and chaos that would result from a potentially limitless number of reporters in a polling place.”

And then there is the privacy concern: “[A] very real possibility that the presence of reporters during the sign-in period, when individuals are necessarily exchanging personal information…, could concern, intimidate or even turn away potential voters.”

Bottom line: the Third Circuit found that both prongs of the “experience and logic” test militated against a right of press access to polling places.

The Third Circuit refused to adopt the Sixth Circuit decision in Beacon Journal, giving reporters access to polling places so long as they did not interfere with poll workers or voters. Mistakenly, according to the Third Circuit, the Sixth Circuit had applied a forum analysis, but polling places are not public forums:

As we have just held: a polling place is a nonpublic forum, requiring the government to satisfy only a reasonableness analysis. Therein lies our discord with the Beacon Journal ruling…. [A]dopting a traditional forum analysis for cases such as the one at bar sets a dangerous precedent which permits the government too much freedom to hide their activities from the public’s view. We cannot accept this result. Beacon Journal is a precedent we cannot follow.

Strict scrutiny requires a compelling interest and narrow tailoring. It is a hard test to meet. It is the test the Sixth Circuit required. The “reasonableness analysis” the Third Circuit uses is a much weaker standard. So the Sixth Circuit demands a rigorous standard, the Third Circuit demands a weak standard. Then the Third Circuit says that the Sixth Circuit “permits the government too much freedom to hide their activities from the public’s view.” What? It is the Sixth Circuit that opens up the process and the Third Circuit that closes the door on press access. Yet the Third Circuit opines that the Sixth Circuit is setting a “dangerous precedent which permits the government too much freedom to hide their activities from the public’s view.”

Whether the Sixth Circuit should have treated a polling place as a public forum is not the issue here. The Third Circuit analysis appears correct that polling places are not public forums. The issue is the Third Circuit’s statement that the Sixth Circuit is setting a “dangerous precedent” by applying a public forum analysis because that gives government “too much freedom to hide their activities.”

Does keeping the press outside prevent the government from hiding its activities?

Look at the results. Where is the dangerous precedent? The Sixth Circuit does not let the government have its freedom. It opens polling places. The Third Circuit gives the government its freedom and deprives the press of freedom to observe election sign-ins.

As Humpty Dumpty said: “It means just what I choose it to mean.”

Sandy Davidson is Associate Professor at the University of Missouri School of Journalism and Adjunct Associate Professor at the University of Missouri School of Law, both in Columbia, MO. An expert on the relationship between media and law, she has written extensively on the need for freedom of information. She has been a panelist for the Information Policy Taskforce of the National Conference of State Legislatures, and the Associated Press Managing Editors, among other groups.

Suggested citation: Sandy Davidson, Separated But Equal: The Third Circuit, the Press, and Polling Places, JURIST – Forum, Mar. 4, 2013, http://jurist.org/forum/2013/03/sandy-davidson-press-polling.php