After a second rejection in its quest for Capitol Hill press credentials, SCOTUSblog is appealing to the Senate Rules Committee.
At issue is what constitutes "editorial independence."
The Standing Committee of Correspondents for the Daily Press stood firm Monday on its heavily scrutinized decision to deny SCOTUSblog’s application, stating that the publisher fails the independence test, primarily because he and his law firm argue cases before the high court.
To publisher Tom Goldstein, the award-winning, often cited content on SCOTUSblog is proof of the outlet's credibility. He insists the blog's editorial policy — soliciting non-staff reporters to cover cases argued by his law firm, and keeping finances separate — functions as a firewall between SCOTUSblog and his law firm, ensuring objective and neutral coverage. "We don’t object in any way to a rule requiring editorial independence," Goldstein said in an email to CQ Roll Call. "To the contrary, we think it’s important." He objects to the way the committee construes that requirement of independence "in the broadest way possible: to forbid an overlap in personnel."
In a three-page letter to Goldstein sent Monday, the panel of five journalists voted by their peers to manage the daily galleries' credentialing process (reporters for the Wall Street Journal, Stephens Media Group, the Washington Post, Bloomberg and CQ Roll Call) wrote that the SCOTUSBlog editorial policy appears to "permit the law practice to blend in with the blog."
At least two SCOTUSblog employees work on both sides of the so-called firewall, and the blog and law firm share office space and resources. While Goldstein earns his living at the law firm, he also controls the blog's editorial direction and has day-to-day story conversations with SCOTUSblog reporters, the letter states. Three of the firm's four lawyers appear on the masthead, and the law firm's manager also works as deputy manager of the blog.
Senate Daily Press Gallery Director Laura Lytle explained that SCOTUSblog could take additional steps to separate itself from Goldstein & Russell and the committee would be happy to reconsider the application.
"Regarding the specifics of how they could go about separating themselves, I would have to hear from SCOTUSblog to see if it is willing to take those steps," Lytle said in an email. "Thus far, it has been unwilling to change its structure to allow for editorial independence. The law firm and the blog need to be separate: They cannot share staff, phone lines, office space and above all the editor cannot also advocate on behalf of the law firm and its clients. We would want to be sure that the blog’s funding is wholly separate from the law firm and any lawyers at the firm."
At least one senator is questioning the decision. Shortly after the standing committee's Monday meeting, Sen. John Cornyn, R-Texas, took to Twitter to ask why credentialing decisions are up to the mainstream media.
Senate Rules Chairman Charles E. Schumer, D-N.Y., and ranking member Pat Roberts, R-Kan., did not respond to requests for comment for this story, and a timeline for the appeals process is unclear.
If the committee denies the appeal, the blog expects to litigate the issue.
Goldstein has implied the decision may ultimately play out in a legal battle. On Monday, he said SCOTUSblog was not focusing on taking the issue to court "because we hope that the Rules Committee will overturn the decision."
The SCOTUSblog credential dilemma is one of dozens of fights going on around the country related to who qualifies as a professional member of the media and is entitled to free press rights. SCOTUSblog has joined other legal and political bloggers in an amicus brief in a Texas Supreme Court case, fighting to reverse a state appellate panel’s ruling that refused to allow a union to appeal an order in a libel action because it was not a member of the professional electronic or print media.
Asked whether he was hoping that case, still being decided, might have broader implications for congressional media, Goldstein said it was hard to predict.
"But it seems like we’re headed in the direction of greater openness, with fits and starts like today’s decision," he added.