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Barr: 'No one fooled' by Gowan's retaliation against reporter

The attorney for the First Amendment Coalition of Arizona, Dan Barr, blasted Gowan's move to kick reporters off the chamber floor in a letter to the state House speaker, saying, "no one is fooled by what is going on here."

"The asserted reason for this new policy is a concern for safety, even though in no one's living memory has there been any incident on the House floor implicating anyone's safety nor has there been any incident anywhere at the State Capitol involving news reporters threatening anyone's physical safety," Barr wrote.

"Simply put, Mr. Speaker, no one is fooled by what is going on here," Barr wrote of the move by Gowan to require reporters to submit to background checks to have access to the floor of the state House of Representatives.

"Given the lack of facts supporting the new rule and the absence of real security measures, it is obvious that your actions have been motivated by your displeasure with the reporting of Arizona Capitol Times reporter, Hank Stephenson, which has led to the Attorney General's current investigation of your use of state resources and personnel for your congressional campaign," the attorney wrote. "It is obvious that your policy is aimed at Mr. Stephenson because, as shown in the attached Editor's Note from today's Arizona Capitol Times, this is the third time in the last three months that you and your staff have tried to bar Mr. Stephenson from covering the House chamber."

Here's the full text of the letter, sent Friday:

Re: First Amendment Coalition of Arizona: New House Policy Regarding Criminal and Civil Background Checks for Reporters

Dear Speaker Gowan:

This firm represents the First Amendment Coalition of Arizona. I am writing to you concerning your new policy that conditions a news reporter' s entrance onto the House floor with his or her signing a form allowing the House Security Office to do a background check on him or her regarding past civil, criminal and traffic matters. The asserted reason for this new policy is a concern for safety, even though in no one's living memory has there been any incident on the House floor implicating anyone's safety nor has there been any incident anywhere at the State Capitol involving news reporters threatening anyone's physical safety. According to House Counsel Rob Ellman's March 31, 2016 memo to you, the supposed justification for your new rule is that:

(1) protesters disrupted an Elect ions Committee meeting on March 28th and then disrupted House proceedings from the gallery above the House floor, and

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(2) three young women affiliated with the Puente Human Rights Movement chained themselves to the front door of the Executive Office Building on March 30th.

Of course, neither of these incidents involved news reporters nor did they occur on the House floor. Simply put, there is no rational or factual basis for the new House rule requiring reporters to sign such a form to gain entrance onto the House floor.

Simply put, Mr. Speaker, no one is fooled by what is going on here. If there were truly a safety issue at the Arizona legislature, then both the Senate and Executive Tower would be enacting similar measures. There would also be real law enforcement agencies involved, including those that regularly conduct background checks. The House Security Office is not such an agency.

Given the lack of facts supporting the new rule and the absence of real security measures, it is obvious that your actions have been motivated by your displeasure with the reporting of Arizona Capitol Times reporter, Hank Stephenson, which has led to the Attorney General's current investigation of your use of state resources and personnel for your congressional campaign. It is obvious that your policy is aimed at Mr. Stephenson because, as shown in the attached Editor's Note from today's Arizona Capitol Times, this is the third time in the last three months that you and your staff have tried to bar Mr. Stephenson from covering the House chamber. Moreover, as noted by the attached Capitol Times Editor 's Note:

"Not only is there a consistent pattern of Gowan and his aides targeting Stephenson, but there' s a clincher in the case of the most recent policy: Before the deadline for reporters to consent to the invasive background check, a member of House Republican leadership seemed to know that Stephenson would be deemed a security risk and denied access to the floor, even though he had told no one about his 2014 misdemeanor trespassing conviction except for his immediate family and his employer.

The new House policy that Gowan implemented March 31 specifically bans anyone with a trespassing charge in the last five years from being able to access the House floor.

On April 6, several hours before the deadline given to the media, House Majority Whip David Livingston approached Stephenson on the House floor.

'I hear you' ll be retiring as of tomorrow,' Livingston said."

Speaker Gowan, the law is very clear in this area. The selective denial of access to a governmental forum based on content is unconstitutional regardless of whether a public forum is involved, unless the government can show a compelling state interest and is the least restrictive means available to achieve the asserted governmental purpose. Arbitrary or content-based criteria for granting access are prohibited under the First Amendment. Borreca v. Fasi, 369 F. Supp. 906 (D. Haw. 1974); Quad-City Community News Serv., Inc. v. Jebens, 334 F. Supp. 8 (S.D . Iowa 1971). Thus, courts have found First Amendment violations in numerous cases such
as this, including:

  • Barreca v. Fasi , 369 F. Supp. 906, 909-10 (D. Haw. 1974) (mayor excluded reporters for a particular newspaper from major press conferences to which the
    press generally was invited)
  • Westinghouse Broadcasting Co. v. Dukakis, 409 F. Supp. 895, 897 (D. Mass. 1976) (city council denied access to its proceedings to television and radio
    stations engaged in labor dispute)
  • Am Broadcasting Co. v. Cuomo, 570 F.2d 1080, 1083 (2d Cir. 1977) (police commissioner refused ABC, but not other members of the press, access to postelection
    activities at campaign headquarters)
  • SW Newspapers Corp. v. Curtis, 584 S.W.2d 362, 369 (Tex . Civ . App. 1979) (district attorney required reporters for a disfavored newspaper to obtain advance
    appo intments not required of other reporters)
  • Stevens v. New York Racing Ass 'n, Inc., 665 F. Supp. 164, 177 (E.D.N.Y. 1987) (race track forbid reporter to carry a camera into paddock areas otherwise open to
    the press)
  • Times-Picayune Pub. Corp. v. Lee, 1988 WL 3649 1 at *11 (E.D. La. 1988) (sheriff directed his staff not to respond to questions of reporters from the Times
    unless they were submitted in writing)
  • United Teachers of Dade v. Stierh eim, 213 F. Supp. 2d 1368, 1373 (2002) (superintendent passed a policy that had the effect of excluding editor of teachers '
    union newspaper from school board press room reserved for members of the "general circulation" media and relegating her to a "separate but equal" media
    room)
  • Telemundo of Los Angeles v. City of Los Ange les, 283 F. Supp. 2d 1095, 1103 (C.D . Cal. 2003) (city and city council member restricted Telemundo' s right to
    broadcast official ceremony, which had been traditionally produced and exclusively broadcast by a competitor)

Given the foregoing reasons, we demand that you immediately rescind your factually unsupported and retaliatory policy requiring journalists to submit background checks as a condition to stepping onto the House floor. We hope that this exercise of poor judgment and retaliatory conduct will end immediately.

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Sincerely,

Daniel C. Barr

Dan Barr, a partner in the law firm Perkins Coie, has more than 30 years of experience in the area of civil litigation involving constitutional, employment, media and political law issues. He represents several news media organizations, including the First Amendment Coalition of Arizona and is the chair of the Phoenix office’s Pro Bono Committee.

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