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Journalists Question Editorial Firewall in SCOTUSblog Credentials Appeal

The journalists who rejected SCOTUSblog’s application for congressional press credentials want to clarify that their heavily-scrutinized decision was not based on the “quality” of the award-winning blog’s coverage of the Supreme Court.  

After a 90-minute public appeal hearing that delved into the editorial independence of the blog, the Standing Committee of Correspondents for the Daily Press announced that it “does not make decisions based on the quality of content, because to do so would place us in a censorship role.”  

Rather, the elected panel of five journalists “exists to ensure that no person or publication be torn between covering Congress and influencing government outcomes,” the group asserted in a statement following a question-and-answer session with veteran Supreme Court reporter Lyle Denniston and SCOTUSblog co-founder and publisher Tom Goldstein.  

The May 23 panel in the Capitol Visitor Center drew about 40 congressional staff members and journalists, including SCOTUSblog’s Amy Howe, who live-blogged the appeal for the site. Journalists of the standing committee and press gallery staff sat elbow-to-elbow on three sides of a square table and took turns volleying questions at Denniston and Goldstein. “I do realize that I am here as part of a test case … but I am not here as a Trojan horse,” Denniston told the panel.  

In 2013, the standing committee granted SCOTUSblog credentials, but their renewal was rejected in April because of concerns about whether the blog is editorially independent of Goldstein’s law firm, whether its Bloomberg Law sponsorship qualifies as advertising and whether reporters need access to the House and Senate.  

Rules state that daily print publications and news services whose “principal business is the daily dissemination of original news and opinion of interest to a broad segment of the public, and which has published continuously for 18 months” are eligible for credentials.  

Goldstein acknowledged he “wears two hats” as a practicing lawyer and as the publisher of and a contributor to the site. SCOTUSblog is his principal business during part of the year, but he is more focused on his firm, Goldstein & Russell P.C., during other seasons. The law firm defines itself on its website as “a small firm with a unique focus on practice before the United States Supreme Court.” He repeatedly compared his situation to Amazon founder Jeffrey P. Bezos, suggesting that a different interpretation of the wording would mean the gallery would have to “de-credential” reporters for the Washington Post, which Bezos owns.  

Under a deal reached in 2011, Bloomberg Law became the exclusive sponsor of SCOTUSblog. Goldstein explained that the agreement entitles Bloomberg Law to advertise on the site and requires SCOTUSblog to produce some content directed at law students. The legal research service and the blog also share content.  

Pressed by the journalist to explain structural firewalls, Goldstein said the activities of the legal firm he owns never “shape, form [or] influence how we cover anything.”  

SCOTUSblog has modified its policies since it was founded in 2002, in an attempt to comply with the stringent requirements for congressional credentials. For example, Goldstein now finds outside experts for SCOTUSblog coverage of cases that involve his firm.  

“Now no one who reports to me in any way is allowed to write or have anything to do with editorial content of anything related to any of those cases,” he explained.  

Denniston said the firm recently dropped out of a case “in order to give me the opportunity to cover it. … My sense is that this makes [a] firewall work better when it has this degree of flexibility that yields to editorial desires.”  

As a journalist of the law for more than 66 years, Denniston said he has thought through all issues of editorial independence, and does his best to guarantee SCOTUSblog is a pristine news site.  

“In some real ways I am the journalistic, ethical consultant to the blog,” Denniston said. Any matter that “impinges on my independence, or even [gives] the appearance of the blog as being compromised, I will go to Tom and say, ‘I don’t think we should do it this way.'”  

In the wake of the April decision that left Denniston without a congressional press pass, many in the journalism industry have encouraged the daily gallery to review its credentialing process. It completed a comprehensive review of its rules in order to embrace the changing media landscape in 2005, and updated the guidelines for applying the credentialing rules of the press galleries in 2011.  

The Reporters Committee for Freedom of the Press and 14 prominent media organizations — including National Public Radio, Atlantic Media, The New Yorker and Politico — declared support for credentialing SCOTUSblog and its reporters on May 22. They sent a letter to Laura Lytle, director of the Senate Daily Press Gallery, urging further consideration of SCOTUSblog’s application and suggesting a broader review of the rules.  

“We encourage the credentialing committee to focus on the firewalls a news outlet has in place to maintain editorial independence instead of putting great weight on an organization’s ownership structure,” the letter states. “While we understand the Gallery’s desire to exclude writers whose objective is to lobby on behalf of a corporation or an advocacy organization, we believe that the committee should determine whether an organization crosses that line on a case-by-case basis that looks at the internal controls each applicant has in place.”  

Siobhan Hughes, Capitol Hill reporter for the Wall Street Journal and chairwoman of the standing committee, said she was aware that outside groups were watching the committee’s decisions closely to see what kind of business models would make the cut.  

“I personally feel great pressure to get [this] right,” she said.  

Hughes and her colleagues also delved into logistics of the blog, including how its employees are paid, where its offices are located and its revenue structure. Answers revealed that one employee of SCOTUSblog also works part-time for the law firm, and the blog leases space in a suite next door to the law firm.  

Denniston emphasized that he did not want the committee to bend the rules for SCOTUSblog.  

“You folks are the keeper of the temple, and we in journalism depend upon you in an extraordinary way to maintain the tradition of journalism independence,” he said.  

Goldstein has implied the decision may ultimately play out in court and said that option is still on the table.  

The committee has promised further consideration of the information at its next meeting, but the appeals process is not formal and there is no timeline for a decision.  

In order to reconsider the decision, one of the five journalists on the committee (in addition to Hughes, it includes reporters from Stephens Media Group, the Washington Post, Bloomberg and CQ Roll Call) would have to make a motion to reconsider.  

In a theatrical closing argument, Goldstein warned that their decision could have sweeping, negative implications for the state of the media by “taking an increasing swath of people who can inform the public and disqualifying them.”

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