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Court: OK to block press from polling sites

A federal appeals court ruled Wednesday that preventing reporters and photographers from entering active polling places is constitutional, saying that a Pennsylvania law to that effect does not violate the First Amendment rights of the press.

The case, PG Publishing Co. v. Aichele, brought by the parent company of the Pittsburgh Post-Gazette, challenged a state law that said all persons aside from select officials, voters and those giving assistance to voters must remain 10 feet away from a polling place during voting. The Post-Gazette sued after it said its reporters were barred from observing voting sign-in in Allegheny and Beaver Counties, an issue they said was especially important in light of new voter ID laws taking effect that election cycle.

The Post-Gazette argued the media’s right to enter a polling place is protected by the First Amendment and sought a consent decree giving them polling place access. The district court refused, and the circuit court held, 3-0, that the First Amendment does not grant the press access to voting venues – which it ruled are a “nonpublic forum.”

In the court's opinion (posted here), Judge Joseph Greenaway Jr. wrote, citing Branzburg v. Hayes, “The Supreme Court’s pronouncement on this issue is unequivocal: ‘[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.’”

The court held that because voting is traditionally considered a secret activity, and because the likely harm of letting the press into a polling place in terms of disruption of voting outweighs the potential public good, under the “experience and logic” test voting places are not considered public forums.

PG Publishing also argued its 14th Amendment Equal Protection rights were violated because, while it was barred from entering polling places in the two counties, other reporters in other counties were not prevented from entering, and the Post-Gazette had been able to report inside voting places in Allegheny County in prior instances.

The court held selective enforcement of a law does not always constitute a violation of Equal Protection, and the Post-Gazette had no evidence it was intentionally singled out for different treatment, thus throwing out the 14th Amendment argument.

One interesting footnote in the decision: The court mused on whether there was any distinction anymore between members of the press and the general public with the growth of technology.

“This brings us to the next concern, raised at oral argument: Who is a member of the press? Even if we were inclined to find a special First Amendment right for the press in this case (which we explicitly refuse to do), the class of persons to whom such a right is applicable is almost boundless,” Greenaway wrote in a footnote.

“More recently, membership in the Fourth Estate has been democratized. 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. While in almost any other situation this would be a boon to a free and democratic society, in the context of the voting process, the confusion and chaos that would result from a potentially limitless number of reporters in a polling place would work the opposite effect, potentially creating confusion, frustration, and delay. This is to say nothing of our earlier holding that the rights of access for the press and public are co-extensive. In this situation, anyone could record in the polling place if the First Amendment protected the right of access thereto," the judge added.

The implications of that statement are not explored further in the opinion.

The Pennsylvania’s Attorney General’s Office declined to comment on the decision.

PG Publishing did not immediately responded to a request for comment. The lawyer for PG Publishing told a Pittsburgh Post-Gazette reporter that the paper planned to appeal to the Supreme Court.

UPDATED: (Thursday, 3:59 p.m.) Updated with the Pennsylvania attorney general's response.