This was a morning of ironies. At 9:30 a.m., six members of the blog staff were live-blogging the Supreme Court’s orders, followed by opinions at 10 a.m. There were 10,000 readers. The Standing Committee of Correspondents chose that time to release its ruling denying our appeal of its revocation of our press credential. We learned about it from Twitter.

Over the course of the past year, the Committee has seemed to search for a reason for its decision, never explaining its prior decision to grant us a credential. For example, it has questioned whether our sponsorship failed to qualify as advertising. It has also expressed doubts about whether we require on-site access to the Senate.

Today, it settled on the fact that practicing lawyers publish and write for the blog. The Committee takes the view that the blog is not editorially independent from my law firm or from other lawyers who write for the blog. As a consequence, the Committee found, the blog violates two independent requirements under the Committee’s Rules: any credentialed publication must be editorially independent from an organization that (i) “lobbies the federal government”; or (ii) “is not principally a general news organization.”

Put to the side for the moment whether you agree with the Committee’s decision. It should be common ground that its rationale is sweeping and has broad implications for whether non-traditional media is regarded as “journalism.”

Begin with the fact that the decision applies equally to publications in any field, whether health care, automobiles, technology, education, or anything else. It is not dependent on the fact that I work for a law firm that practices before the Supreme Court. The Committee deems it sufficient that the firm is not principally a news organization. So its reasoning extends equally to any publication that is produced by someone who plays dual roles, one of which isn’t a news organization.

As a result, the purpose and effect of the Standing Committee’s decision is to limit credentialing to traditional media in every field. The Rules contemplate that there can be a direct relationship between a publication and non-news organization – they just must be editorially independent. But the Committee construes that requirement of independence in the broadest way possible: to forbid an overlap in personnel.

The Committee concludes that the lawyers and the blog are not editorially independent for three reasons related to its personnel. First, editorial independence is per se impossible when I am both the publisher and a partner at the firm, because I “control[] the editorial direction of the blog and determine[] areas of coverage.” Second, the blog reflects well on my law practice and therefore “serve[s] as a client-generating vehicle” and is “part of [my] personal brand.” Third, other lawyers who write for the blog also practice before the Court.

Notably, the Committee finds that no editorial policy can establish editorial independence. The publication’s own rules cannot overcome the taint created by its personnel. So the Committee recognizes our rules forbidding any staff member from being involved in the coverage of any case in which the law firm is involved. But because the firm and the publication are not “separate” in terms of who works for each, the former has the capacity to “influenc[e] editorial content.” The Committee explains that it would reconsider its decision only if the blog were “to separate itself from Goldstein & Russell and any other lawyer or law firm who is arguing before the Supreme Court” (emphasis added).

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.

I think that this is a sad day for what it means to be a journalist, and that the Standing Committee will find itself on the wrong side of history on this question. Is it really the case that even with clear editorial policies in place a school superintendent cannot engage in journalism about education; that a physicist cannot run a recognize publication about physics; and that a blog run by a practicing physician is inherently not “editorially independent”?

The members of the Standing Committee are traditional journalists who come from a proud and treasured tradition of complete independence from anything other than their craft. That is a fantastic model for journalism. But it is not the only one. And it is unfortunate that this is a decision in which members of the traditional media exercise their own power over access to the government to categorically exclude a wide swath of competitors.

We are experts in the Supreme Court in large part because we practice before the Supreme Court. Lyle has over five decades of experience as a journalist covering the Court. But the rest of us have acquired our knowledge through many years litigating in front of the Justices. That expertise lets us cover the Court well, and it gives our coverage added credibility. The same will be true across the infinite number of fields to which its rationale applies.

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. Before we had a sponsor, I spent several million dollars out of pocket to build the blog. Although it is no longer a money-losing proposition, that is only because I don’t take a salary, and neither do any of the other contributors from the firm.

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.

This scenario – specialists reporting on their respective fields of expertise – is going to grow, not diminish. Traditional media is contracting. Non-traditional, expert media is expanding, including because we have access to inexpensive distribution through the Internet. We do not need a printing press.

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. The Committee does not seem to doubt that our actual coverage is comprehensive and thoughtful.

Nor does it seem to doubt that our editorial policies are effective in practice, so that our coverage is objective and neutral. 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.

Not even the Committee seems to believe it, truly. As I discussed in a previous post, under unpublished Guidelines, the Committee freely credentials journalists from state-owned media. No one thinks that most of those publications are independent of their governments. And the governments actively lobby the Senate. But they receive a credential.

The overlap in staff between the organizations – rather than the entities’ actual editorial policies – also seems to be the wrong focus. As I discussed in that previous post, the Committee grants credentials to several organizations that are direct affiliates of profit-making businesses in their fields, such as energy regulation. We absolutely don’t begrudge those organizations being recognized. But it seems hard to say that they have a greater appearance of independence than we do.

We have the very deepest respect for journalism. Guided by Lyle, we have tried to implement every policy possible to ensure that our coverage adheres to its finest traditions. We remain very grateful that other members of the press and their representatives – including the jurors of the Peabody Award, the Society of Professional Journalists Award, and the National Press Club Award, as well as the Reporters Committee for Freedom of the Press – accept that we are engaged in journalism.

We obviously have a different conception from the Committee on what it means to be a journalist and what it means to be independent. At some point, given that the blog has operated for more than a decade, the proof is in the pudding. You can look and decide for yourself whether we are actually engaged in journalism.

The next step is for us to appeal the Committee’s decision to the Senate Rules Committee. We do not know how long that will take.

Recommended Citation: Tom Goldstein, The walls erected by traditional media, SCOTUSblog (Jun. 23, 2014, 12:31 PM), https://www.scotusblog.com/2014/06/the-walls-erected-by-traditional-media/