The Supreme Court has refused to hear a Pennsylvania newspaper’s challenge of a state law that denies journalists access to polling places on Election Day.
The publisher of the Pittsburgh Post-Gazette had asked the Supreme Court to review a circuit court decision that upheld a Pennsylvania law which prohibits anyone other than police officers, election officials and voters from coming within ten feet of a polling place on Election Day. Though few states have laws on the books expressly prohibiting all recording inside polling places, most have issued written official statements limiting such access, according to the Digital Media Law Project.
The Post-Gazette initially challenged the law ahead of last November’s elections, in anticipation of the implementation of Pennsylvania’s controversial voter ID law. Critics of the voter ID law contended that it would be used to selectively disenfranchise voters, and that media presence at polling places would combat such abuses.
Ironically, the voter ID requirement was essentially scrapped in the weeks prior to Election Day after succumbing to legal challenges in state court. Nonetheless, the Post-Gazette’s suit raises an interesting question: do members of the media have a constitutional right to gather news inside polling places?
The short answer, at least according to the U.S. Third Circuit Court of Appeals, is no.
Despite the fact that the Supreme Court has recognized independent protections for “some news-gathering activity,” the Third Circuit noted that the Constitution does not require the government to grant the press special access to information not available to the general public. (Branzburg v. Hayes, 408 U.S. 665, 681 (1972))
When determining whether the press should be granted access to a particular venue, judges balance the government’s interest in limiting access, against First Amendment concerns for the free exchange of ideas. To do this, courts consider whether a particular place has historically been open to the press, and whether public access plays an important roll in the activity in question.
Co-Director of the Center for Media Law and Policy at the University of North Carolina David Ardia told the NPPA this case will be a difficult one for press advocates to win. “From the perspective of someone who is in favor of greater access, I think that this a tough issue to expect the Supreme Court to find there is a right of access,” Ardia said, adding “Arguments on the government’s side are very strong. There can’t be a more compelling government interest than preventing interference with voting.”
The Third Circuit found that the press has not historically enjoyed access to polling places on Election Day, observing that the U.S. has used the secret ballot method of voting since the mid to late 1800’s.
While it conceded that media presence at the polls might combat fraud or “other electoral evils”, the court found that reporters might also frighten or intimidate voters. Additionally, the Third Circuit worried that press access, once granted, might prove prohibitively broad in scope. That problem, the court said, arises from the fact that granting one organization access essentially means granting all organizations access. It’s an issue that’s compounded by the rise of citizen journalism, a phenomenon that continues to blur the line between professional and non-professional media.
Considered together, the court found these factors suggest that journalists do not have a First Amendment right to access polling places on Election Day. But until the Supreme Court takes a case involving such a situation, a definitive answer will remain elusive.
Professor Ardia says that might be a plus for those who favor greater access, noting that “rushing to get the Supreme court to address this issue could end negatively.” The high court prefers to have the benefit of a rich background of lower court decisions. For that reason, Ardia says, “it may be a benefit for more time to pass as more appellate courts find and identify these rights.”
Framing the goal of press access broadly also may strengthen the argument for its extension, Ardia adds. “We’ve gathered a tremendous amount of data to support the argument that the transparency around the functioning of polling places is essential.”
Ultimately, Ardia concludes, “I’m not sure anyone is arguing that there shouldn’t be any limits at all.” The questions moving forward then are those of scope: how much press access is needed, and how does the law balance those against government’s interest in overseeing efficient elections?
These are questions that will be answered as case law, and the societal and technological changes that drive it, continues to evolve.
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