In this post, I will offer an analysis of the Senate Standing Committee’s denial of SCOTUSBlog’s appeal for press credentials. I should stress, strenuously, that I think these policies are out-of-date, and likely an unconstitutional abridgment of the First Amendment. SCOTUSBlog should be credentialed.

With that being said, I think it is still important to consider the case, on the merits, with the rules as written. Yes, it is unfair, and perhaps unconstitutional, and SCOTUSBlog should appeal to challenge the rules. But the rules provide a basis for the denial. Also, I won’t address several allegations (that seem correct) that other entities were granted credentials, that suffer from even worse deficiencies than SCOTUSBlog–such as state-run news outlets, or entities owned by profit-making businesses.

Rule 4 of the Gallery Rules provides, in part:

The applicant must reside in the Washington, D.C. area, and 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 letter finds “three ways” that SCOTUSBlog failed to “convince the committee that it met this rule.”

First, with respect to editorial independence, the Court equates arguing before the Supreme Court as a “form of lobbying the federal government.”

The rule says the publication must be editorially independent from any institution that lobbies the federal government. At the meeting and elsewhere, law-firm partner Thomas C. Goldstein said he controls the editorial direction of the blog and determines areas of coverage. At the same time, Mr. Goldstein advocates before the Supreme Court, which is a form of lobbying the federal government. Thus, SCOTUSBlog fails the test of editorial independence from any institution that lobbies the federal government because it is instead editorially intertwined with a law partner and a firm that lobbies the federal government.

This, in my mind, is the weakest position. In what sense is arguing before the Supreme Court a form of lobbying the federal government? This betrays either an utter ignorance of the separation of powers (the Court is not part of the federal government), or a keen grasp of how public interest rent-seeking works through high court litigation (it’s a lot easier to persuade 5 Justices than both houses  of Congress and the President). In any event, this is a bad argument. So much for leading off with your strongest point. (Although, in an ironic way, Tom’s petitioning the Senate to change their rules about granting him a credential is almost certainly a form of lobbying the federal government. But this would be a Kafkaesque ground for denying the credential.).

Second, also with respect to editorial independence, the Committee found too close of a link between SCOTUSBlog, Goldstein, and Goldstein & Russell.

The rule says that the publication must be editorially independent of any institution that is not principally a general news organization. That means SCOTUSBlog would need to be editorially independent of Mr. Goldstein and the firm, Goldstein & Russell, because neither is principally a general news organization. As stated above, SCOTUSBlog is not editorially independent of Mr. Goldstein or Goldstein & Russell.

Goldstein’s rejoinder concedes the charge, but insists his editorial firewall should suffice.

It is true that I direct the blog’s coverage. That makes sense because I spend my days and nights thinking about what is going on at the Court. But the Committee deems it irrelevant that there is one major exception to my editorial authority: I cannot direct any of our coverage in any respect regarding any matter in which we play any role.

The letter explains how the two entities are connected, notwithstanding the firewall:

Furthermore, at least two people work on both sides of the firewall. Mr. Goldstein, who earns his living at the law firm, control’s the blog’s editorial discretion 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. This makes it hard for us to determine where one ends and the other begins.

To satisfy the committee, the two entities would have to be irreparably severed:

[SCOTUSBlog’s policy] states that the blog will solicit non-staff reporters to cover cases argued by the firm, and that there will be separate financial accounts for the blog and the firm. Mr. Goldstein said at the meeting that the blog will disclose when the first has been hired to work on a case covered by the blog in all but the rarest case.

The committee finds that the SCOTUSBlog editorial policy did not go far enough to achieve editorial independence from Mr. Goldstein and his law firm. 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.

I think it is important to draw the distinction between direct evidence of influence, and the appearance of influence. The Committee–rightly or wrongly–is focusing on the latter. The manner in which the relationship between SCOTUSBlog and Goldstein exists, is sufficient in their minds to raise the appearance of impropriety. No firewalls can cure that. As Adam Liptak noted, “dual roles run afoul of some journalistic norms.” I blogged Tom’s responses to questions about the dual-role, and found them unpersuasive. To the extent that the rule is legitimate, this is a valid ground for denial.

Third, citing the fact that Goldstein derives business from SCOTUSBlog, the Committee found a lack of editorial independence:

For SCOTUSBlog to be editorially independent of Mr. Goldstein and his law firm, it could not under the rule, serve as a client-gathering vehicle for either. But as recently as last year, Mr. Goldstein told the American Bar Association that SCOTUSBlog indirectly accounted for 75 percent of the law firm’s Supreme Court business. Mr. Goldstein also uses SCOTUSBlog as a platform for publicity material about himself, making the blog part of his personal brand.

I know Tom has said many times–perhaps even going out of his way to say so–that the website was originally conceived as a marketing tool, but no longer serves that purpose. I am really dubious of this fact. I am positive that in Tom’s pitch to prospective clients, SCOTUSBlog is mentioned somewhere. He admitted as much in the podcast with the ABA I blogged about here, and the committee cited. The site gives him a reputation, and popular brand, that promotes his business. It doesn’t have to do so directly. Much ado is made about the petitions to watch, which now no longer include Goldstein & Russell petitions. But the site, on its own, is a fantastic promotional vehicle for attracting, and reeling in clients. And let’s not forget about the ill-fated Tom Goldstein sitcom on NBC. Surely that would never have happened but for his website! To the extent that this is a valid ground to deny a credential, then SCOTUSBlog fails to meet this standard.

I will also respond to a point Tom makes repeatedly, that the Committee never actually says. Tom writes that the Committee is denying the ability for practicing lawyers to write on blogs.

In fact, the Committee does not seem to doubt that. It does not see these rules as an obstacle, so long as every one of us now quits our jobs as practicing lawyers and commits ourselves exclusively to the same occupation as the Committee members. But so long as any of us continues to practice, we lack editorial independence.  The reality, of course is that none of us – and none of the people running blogs in other fields – can afford to quit our other jobs to become full-time journalists.   …

Under the Committee’s interpretation, none of that matters. Because we actually work in the field in which we write, we cannot be editorially independent about it. That seems incorrect.

This misses the point, entirely. The committee is certainly not saying that a lawyer who argues before the Supreme Court is unable to write about the Supreme Court. How many editorials or columns in the New York Times, Washington Post, Wall Street Journal, etc. are written by Walter Dellinger, Larry Tribe, Ted Olson, etc.? The problem has to do with the management of SCOTUSBlog. This fact should now be painfully obvious. Other practicing lawyers routinely write for outlets with media credentials. The difference is they are not owned and controlled by those practicing lawyers.

Towards the end, Tom makes an odd concession. He asserts that if he steps down as publisher, the blog loses its sponsorship, and would collapse.

The simple reality is that I can’t afford to stop practicing law, and if I withdraw as publisher of the blog we lose our sponsorship. SCOTUSblog then collapses. So the Committee has interpreted its Rules in a way that nominally leaves the door open to non-traditional media. But in a lot of cases, that is an optical illusion.

So this statement is revealing. This tells me that they considered what would happen if Goldstein was no longer the publisher, and Bloomberg said it would stop sponsoring it. That is something of a Catch 22, but does not really make an argument under the existing rules. Doesn’t this undercut the argument that the site is largely independent of Tom? If he is so pivotal to the site’s sponsorship, then this strengthens the Committee’s reasoning.

Putting aside all the rhetoric about new media, advertising revenues, and online journalism, the biggest sticking point is the site’s publisher. The largest obstacle standing in the way of SCOTUSBlog’s credentials, under the existing rules, is Goldstein and his firm. The letter’s parting comment makes this point, clearly:

If SCOTUSBlog were to take additional steps to separate itself from Goldstein & Russell and any other lawyer or law firm who is arguing before the Supreme Court, we would welcome a new application.

If SCOTUSBlog was sold to, let’s say Bloomberg, and all editorial control was transferred out of the vicinity of Goldstein and his firm, the credentials would be granted right away. Tom would still be permitted to write about, and cover the case, much like any other lawyer who argues before the Court can also opine. Same for the other lawyers at his firm. The problem is the control.

Let me repeat. I am opposed to these policies, and think they are an abridgment of the First Amendment. But to the extent that we take these policies seriously, their reasoning seems mostly correct.

I’ve previously blogged on this topic here,  here, here, here, here, and here.