John K. MacIver Institute for v. Tony Evers ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20–1814
JOHN K. MACIVER INSTITUTE
FOR PUBLIC POLICY, INC., et al.
Plaintiffs-Appellants,
v.
TONY EVERS, in his official
capacity as Governor of the
State of Wisconsin,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:19-cv-00649-jdp — James D. Peterson, Chief Judge.
____________________
ARGUED OCTOBER 30, 2020 — DECIDED APRIL 9, 2021
____________________
Before MANION, ROVNER, and SCUDDER, Circuit Judges.
ROVNER, Circuit Judge. Two reporters from the John K.
MacIver Institute for Public Policy, Inc., alleged that they
were denied access to a press event held by Wisconsin Gov-
ernor Tony Evers’ office based on the viewpoint espoused by
the organization. Because we have found no evidence of
2 No. 20-1814
viewpoint discrimination under any First Amendment test
with which we might view the claim, we affirm the district
court’s grant of summary judgment for Governor Evers.
I.
The importance of a free press to our founders was memo-
rialized in the First Amendment which prohibits the govern-
ment from abridging the freedom of press, which now, of
course, encompasses all forms of media. See U.S. Const.
amend. I. Thomas Jefferson stated, “Were it left to me to de-
cide whether we should have a government without newspa-
pers, or newspapers without government, I should not hesi-
tate a moment to prefer the latter.” We therefore delve into
any case alleging suppression of that core right with serious-
ness and care. Like all rights enumerated in the Bill of Rights,
however, it is not absolute. And allegations of suppression of
the media must be sufficiently alleged to withstand a ruling
on summary judgment.
MacIver describes itself as “a Wisconsin think tank that
promotes free markets, individual freedom, personal respon-
sibility and limited government.” R. 9 at 1. MacIver Institute
sponsors what the plaintiffs call a “separately branded” Mac-
Iver News Service with its own Twitter account, its own logo,
and its own tab on the MacIver Institute’s website. At the time
of the facts of this case, William Osmulski was a reporter and
a news director for MacIver News Service. Matt Kittle was
also a reporter for MacIver News Service. We refer to the
plaintiffs collectively as MacIver.
Governor Evers, from time to time, holds events during
which he answers questions from members of the press. Some
of these events are open to any member of the public, and
No. 20-1814 3
others are limited to subsets of the media of varying size. The
Governor’s communications department maintains a media
advisory list that it uses to notify members of the media of
various events. The original version of the media list was
based on a version used during Governor Evers’ campaign
and used neutral selection criteria such as newspaper
circulation, radio listenership, and TV viewership. In June
2019, after MacIver’s counsel sent a letter to the Governor
demanding fair and equal treatment, the Governor’s Office of
Legal Counsel distributed a memorandum providing more
substantial guidance for determining how, going forward,
media would be granted access to the Governor’s exclusive or
limited-access events. The memorandum points out that the
Governor’s office faces logistical and security concerns that
prevent unlimited access to press events. R. 15-1. After that it
enumerates a non-exhaustive list of factors for the
communications department to consider when deciding
whether to include any given media outfit on the list, noting
that the “most important consideration is that access is based
on neutral criteria.” Id. Those factors are as follows:
1. Is the petitioner employed by or affiliated
with an organization whose principal business is
news dissemination?
2. Does the parent news organization meet the
following criteria?
a. It has published news continuously
for at least 18 months, and;
b. It has a periodical publication compo-
nent or an established television or radio
presence.
4 No. 20-1814
3. Is the petitioner a paid or full-time
correspondent, or if not, is acting on behalf of a
student-run news organization affiliated with a
Wisconsin high school, university, or college?
4. Is the petitioner a bona fide correspondent of
repute in their profession, and do they and their
employing organization exhibit the following char-
acteristics?
a. Both avoid real or perceived conflicts
of interest;
b. Both are free of associations that
would compromise journalistic integrity or
damage credibility;
c. Both decline compensation, favors,
special treatment, secondary employment,
or political involvement where doing so
would compromise journalistic integrity;
and
d. Both resist pressures from advertis-
ers, donors, or any other special interests to
influence coverage.
5. Is the petitioner or its employing
organization engaged in any lobbying, paid
advocacy, advertising, publicity or promotion
work for any individual, political party,
corporation or organization?
Id. These factors were adapted from established standards
used by the Wisconsin Capital Correspondents Board and the
United States Congress, and allow for the inclusion of over
No. 20-1814 5
780 e-mail contacts. Id. at n.1 & R. 15-2. The MacIver News
Service does not meet these criteria although it is currently
credentialed by the Wisconsin State Legislature. According to
the Governor, MacIver is not included on the Governor’s me-
dia advisory list because the communications department de-
termined that the MacIver Institute “is not principally a news
organization” and “their practices run afoul of the neutral fac-
tors” set forth in the memorandum. R. 15 at 6.
The Governor’s office describes its press events as falling
into one of four categories: public events, press-exclusive
events, press briefings, and one-on-one interviews. Public
events are, as the name suggests, open to the entire public. For
example, Governor Evers appeared at the opening of the Wis-
consin State Fair in 2019, and hosted multiple budget listening
sessions across the state in spring 2019. These events were
open to any member of the public or press who wished to at-
tend. Sometimes these events include a period of time during
which the press may ask questions (what the Governor’s of-
fice calls “press avail”), but there is no limitation on who may
attend. In addition to these public events, there are other ways
in which the general public, including MacIver, may access
news and information from the Governor’s office. MacIver, or
any member of the public, may follow the Governor’s feed on
social media and sign up for press releases. MacIver does not
allege that it has been denied entry or access to any public
events, or public media sources.
The second category of press events consists of limited-
access press conferences and other press-exclusive events to
which only some members of the press are invited. These
events are not open to the general public and press attendance
is limited by time, space, and security concerns, as well as
6 No. 20-1814
other venue-specific factors. For example, when the Governor
toured the University of Wisconsin–Milwaukee School of
Freshwater Sciences, only a limited number of journalists
were invited on the tour which was followed by a press avail
time. The Governor’s communications department uses the
media advisory list to notify members of the media of these
limited-access events, and invitees who wish to attend must
RSVP so that the Governor’s office and security personnel can
prepare accordingly. Depending on the type of event, the
Governor’s office may also reach out to members of the press
with specific interests, such as inviting a science-focused
journal to join the tour of the School of Freshwater Sciences.
The third category includes press briefings, which are
limited to an even smaller group of invited members of the
press. Historically, these have been held as a courtesy to
members of the press to provide additional background
before the release of large-scale initiatives. These events are
off the record—meaning that the information is not intended
for public release or as an official representation or statement.
Some of the materials provided at a press briefing might be
subject to embargoes. Finally, in a fourth category, the
Governor may at times grant a one-on-one interview. These
are not at issue in this case.
On February 28, 2019, MacIver News Service reporters
Osmulski and Kittle got wind of an invitation-only press
briefing to be held later that afternoon during which the
Governor’s office would preview the major initiatives in his
budget address scheduled for that same evening. The pair,
seeming to understand that this was a “by invitation” event,
sent an RSVP to the Governor’s staff the day of the event, but
did not receive a response before the briefing began. As they
No. 20-1814 7
attempted to enter the conference room, they were informed
that they were not on the RSVP list and thus could not be
admitted. They were told they could talk to the Governor’s
Deputy Chief of Staff, Melissa Baldauff, but she was not
available at that moment to hear their appeal. Because this
was a small-scale event, hundreds of other journalists and
media personnel were also not invited to attend. For example,
Jason Stein, a journalist formerly with the Milwaukee Journal
Sentinel and Wisconsin State Journal sent an email to the
Deputy Chief of Staff asking to attend, but she denied him
admission as he was no longer affiliated with a news
organization and instead worked for the Wisconsin Policy
Forum, an organization that describes itself as a nonpartisan,
independent research organization. In fact, for small-scale
events such as the press briefing on February 28, 2019, the
communications department layers onto the usual media
advisory list the additional requirement that the organization
have a readership or viewership justifying inclusion for the
particular event.
The MacIver reporters eventually learned that their exclu-
sion from the February 28 event was not an anomaly. The
communications department’s media advisory list did not in-
clude them and thus they would not receive invitations to
non-public press events. In response to their initial letter de-
manding to be included on the list, the Governor’s legal coun-
sel responded that the Governor’s communications depart-
ment permits “some journalists to limited-access events, such
as exclusive interviews, on a case-by-case basis using neutral
criteria, namely newspaper circulation, radio listenership,
and TV viewership.” R. 7-5. Shortly after that, MacIver sent a
public records request asking for, among other things, the cri-
teria used to determine which journalists would be allowed
8 No. 20-1814
to access briefings. On the heels of fulfilling MacIver’s records
request for the media advisory list, on June 26, 2019, the Gov-
ernor’s office issued its neutral criteria memorandum de-
scribed above.
MacIver sued the Governor claiming that (1) it had been
denied equal access to certain events and press emails in vio-
lation of the First Amendment; (2) the Governor discrimi-
nated against MacIver based on its viewpoint in violation of
the First Amendment; and (3) the Governor denied MacIver
equal protection of the laws under the Fourteenth Amend-
ment by denying equal access to those events and e-mails.
MacIver sought an order declaring its exclusion unconstitu-
tional and ordering the Governor to include MacIver in the
future. MacIver moved for a preliminary injunction on Au-
gust 20, 2019, seeking an order requiring Governor Evers to
invite MacIver journalists to “generally available press brief-
ings and events and lists announcing such events.” R. 6 at 1.
MacIver did not define what it meant by “generally available
press briefings.” After the decision had been pending for six
months, MacIver moved, pursuant to Federal Rule of Civil
Procedure 65(a)(2), to consolidate the decision on the prelim-
inary injunction with a decision on the merits, affirming that
all necessary evidence had already been filed with the court.
The district court denied MacIver’s motion for a preliminary
injunction, but permitted the plaintiffs ten days to demon-
strate why the court should not grant summary judgment in
favor of the defendants. On April 14, 2020, after rejecting Mac-
Iver’s request to file a renewed motion for summary judg-
ment, the court granted summary judgment in favor of Gov-
ernor Evers. The district court concluded that the press con-
ferences were non-public fora and that the criteria that the
Governor had used to accept or exclude media were both
No. 20-1814 9
reasonable and viewpoint neutral. We review the district
court’s grant of summary judgment de novo, construing all
reasonable inferences in the light most favorable to MacIver.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
II.
The amount of access to which the government must give
the public for First Amendment activities, and the standards
by which a court will evaluate limitations on those rights, de-
pends on the nature of the forum at issue. See Perry Educ. Ass'n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44 (1983). Streets,
sidewalks and parks, and the quintessential soap box in the
public square fall on one end of the spectrum. We call these
traditional public fora. We have the least tolerance for re-
strictions on First Amendment freedoms in those settings,
and the state may only regulate content if it can show that the
regulation is necessary to serve a compelling interest and that
it is narrowly drawn to achieve that end. Id. at 45. The gov-
ernment may regulate the time, place, and manner of the ex-
pression where those regulations are narrowly tailored to
serve a significant governmental interest and where ample al-
ternative channels of communication remain open. Id. There
is no question that a traditional public forum is not at issue in
this case, but it serves as an important marker of one end zone
of First Amendment forum analysis.
The same prohibitions and tests apply to designated
public fora—public property that the state has opened for
members of the public to use as a place for expressive activity.
Id. at 45–46. A designated public forum occurs only where the
government intends to make the property available to the
general public and not simply when it grants access to one
individual or even several individuals or groups. Arkansas
10 No. 20-1814
Educ. Television Comm'n v. Forbes, 523 U.S. 666, 678 (1998). The
government does not create a designated public forum where
it does no more than reserve access to the forum to a
particular group of speakers. Id. at 679. Requiring permission,
limiting access, and having “extensive admission criteria” as
the state does here through the advisory list and invitation
and RSVP process, are signs that the government has not
created a designated public forum. Arkansas, 523 U.S. at 679–
80; Cornelius v. NAACP, 473 U.S. 788, 804–06 (1985). In short,
by inviting a limited number of journalists to its press
conferences, the Governor’s office has not created a
designated public forum.
Finally, the third category describes non-public fora,
where the government controls public property which is not,
by tradition or designation, a forum for public communica-
tion, and is open only for selective access. Perry, 460 U.S. at 48.
“[T]he First Amendment does not guarantee access to prop-
erty simply because it is owned or controlled by the govern-
ment.” U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns,
453 U.S. 114, 129 (1981). The government, like other private
property holders, can reserve property for the use for which
it was intended, “as long as the regulation on speech is rea-
sonable and not an effort to suppress expression merely be-
cause public officials oppose the speaker’s view.” Perry, 460
U.S. at 46. When the government limits participation only to
“appropriate” participants or has extensive admission crite-
ria, it has not created a public forum. Cornelius, 473 U.S. at804–05. And so for example, if a school opens its mailboxes to
a union based on its status as the exclusive bargaining unit of
the teachers, and not based on its viewpoint, it has not created
a public forum and is not constitutionally obliged to allow ac-
cess to any organization which wishes to have it. Perry, 460
No. 20-1814 11
U.S. at 48–51. And when the federal government opened its
Combined Federal Campaign to allow non-profits to receive
charitable donations from federal employees it did not create
a public forum merely by allowing approximately 237 organ-
izations (out of approximately 850,000 tax-exempt charities)
to participate in the program. Cornelius, 473 U.S. at 804–05.
“Control over access to a nonpublic forum can be based on
subject matter and speaker identity so long as the distinctions
drawn are reasonable in light of the purpose served by the
forum and are viewpoint neutral.” Id. at 806.
The plaintiffs in this case want to attend a limited-access
press conference—an event that is not open to the public and
not held on government property dedicated to open commu-
nication. See Perry, 460 U.S. at 45–46. These limited-access
press conferences are open only to journalists who meet the
content-neutral criteria, and then, only the limited number of
reporters who can be accommodated after taking into account
space constraints and security concerns. MacIver wants ac-
cess to a non-public forum—one to which the government
may regulate access provided the regulations are reasonable
and “not an effort to suppress expression merely because
public officials oppose the speaker’s view.” Id. at 46. The Gov-
ernor’s “decision to restrict access to a nonpublic forum need
only be reasonable; it need not be the most reasonable or the
only reasonable limitation.” Cornelius, 473 U.S. at 808.1
1 The Governor asserts that the standard applicable to non-public fora
is the most demanding one that might apply and suggests that, in fact, the
Governor’s press events could be classified as either a proprietary func-
tion or government speech to which only rational basis review applies. We
think the non-public forum analysis is the appropriate one as applied to
12 No. 20-1814
We find that the Governor’s media-access criteria are in-
deed reasonable and not an effort to suppress MacIver’s ex-
pression because of its viewpoint. The Governor contends
that its criteria are intended to consider limited space con-
straints, address security concerns, and ensure that those in
attendance will maximize the public’s access to newsworthy
information, and be more likely to abide by professional jour-
nalistic standards such as honoring embargoes and off-the-
record communications. The resulting list of qualified media
personnel includes a wide variety of news organizations and
journalists from across the state and nation. The first three of
the criteria listed in the memorandum are reasonably related
to the viewpoint-neutral goal of increasing the journalistic im-
pact of the Governor’s messages by including media that fo-
cus primarily on news dissemination, have some longevity in
the business, and possess the ability to craft newsworthy sto-
ries. The list prioritizes access by journalists whose reporting
will reach wider audiences, while also allowing room for
smaller media outlets (such as tribal publications). The crite-
ria listed in numbers four and five of the memorandum are
reasonably related to the viewpoint-neutral goal of increasing
journalistic integrity by favoring media that avoid real or per-
ceived conflicts of interest or entanglement with special inter-
est groups, or those that engage in advocacy or lobbying. Sim-
ilar standards are also used by other governmental bodies
such as the United States Congress. There is nothing inher-
ently viewpoint-based about these criteria, and MacIver has
not provided any evidence that the Governor’s office
the facts of this case involving an invitation-only, limited-access press
event.
No. 20-1814 13
manipulates these neutral criteria in a manner that discrimi-
nates against conservative media.
In its fact section, MacIver asserts that it viewed the media
advisory list as confirmation that its exclusion was ideologi-
cally motivated, but it offers no support or explanation for
that factual assertion. In fact, the list includes media outlets
traditionally viewed as conservative leaning such as the
Washington Times, Wall Street Journal, Fox News, and Wash-
ington Examiner, as well as those viewed as liberal leaning
such as the Capitol Times, New York Times, and Huffington
Post. MacIver argues that the list of included conservative me-
dia outlets is not relevant as they are national outfits with lim-
ited local presence and unlikely to cover the Governor’s
events, but the inclusion of a broad range of media outlets on
both sides of the political spectrum certainly diminishes any
claim that the list is based on political ideology. Moreover,
Wisconsin politics and policy are frequently the subject of na-
tional news media, as we saw during the 2020 elections.
MacIver has not provided sufficient factual support in the
record demonstrating that the Governor discriminated
against MacIver on the basis of its viewpoint, rather than for
the stated reason that “their practices ran afoul of the neutral
factors.” R. 15 at 6. MacIver does not point to any other local
conservative media that meet the access criteria but were ex-
cluded. In fact, the Governor’s office also excluded the Wis-
consin Policy Forum, a liberal think tank, from the media list.
MacIver attempts to distinguish itself from the Wisconsin Pol-
icy Forum, but fails to offer any record evidence. The Gover-
nor’s office determined that the MacIver News Service made
“no effort to distinguish itself from the overall organization
mission” of the MacIver think tank which promotes free
14 No. 20-1814
markets, individual freedom, personal liberty, and limited
government. R. 15 at 6. There is no evidence in the record, for
example, to support the claim that MacIver’s News Service is
actually, rather than merely nominally, separate from the
MacIver Institute. Pointing the court to structural differences
on its website along with other non-record evidence and evi-
dence gleaned from the internet does not suffice. MacIver’s
other naked assertions of bias are also unsupported by refer-
ences to the record. District courts cannot make rulings on
summary judgment based on evidence not in the record.
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648 (7th Cir.
2011). Moreover, the district court found that none of Mac-
Iver’s comparisons were apt, and we find no reason to disturb
the district court’s more specific fact findings about these
comparisons. D. Ct. Op. at 15–18, R. 30 at 15–18.
MacIver disagrees not just with this outcome, but with the
use of forum analysis at all. Forum analysis, it argues, is a
“freedom of speech doctrine, governing when a private
speaker has a right to speak on government property.” Mac-
Iver Brief at 9. Instead, it proposes that the court apply the
highest level of scrutiny to MacIver’s exclusion because the
MacIver reporters are protected under the freedom of press
clause of the First Amendment. But forum analysis is not
merely about who has the right to speak on government prop-
erty. It also addresses who has the right of access to govern-
ment property to engage in various expressive pursuits—
whether that expressive pursuit is leafletting teachers, solicit-
ing charitable donations, wearing political buttons at a poll-
ing place, or gathering information for news dissemination.
See, e.g., Perry, 460 U.S. at 40–41; Cornelius, 473 U.S. at 797;
Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018).
After all, all of these are forms of expressive activity. And the
No. 20-1814 15
amount of access and freedom that the government must give
to someone in pursuit of an expressive activity depends on
the forum (and also the time and manner).
MacIver’s proposed “equal access” framework is really an
argument that any restriction on someone acting as a member
of the press must be subject to strict scrutiny. And this
argument fails for several reasons, but the first is that
reporters are not cloaked with automatic “strict scrutiny
protection” merely because they are members of the press.
“The First Amendment does not guarantee the press a
constitutional right of special access to information not
available to the public generally.” Branzburg v. Hayes, 408 U.S.
665, 684 (1972); see also Dahlstrom v. Sun-Times Media, LLC, 777
F.3d 937, 946 (7th Cir. 2015) (“the First Amendment provides
no special solicitude for members of the press.”). “The right
to speak and publish does not carry with it the unrestrained
right to gather information.” Zemel v. Rusk, 381 U.S. 1, 17
(1965). Neither the First Amendment nor the Fourteenth
Amendment grants the media a “special right of access to
[governmental buildings or information] different from or
greater than that accorded the public generally.” Houchins v.
KQED, Inc., 438 U.S. 1, 16 (1978). Members of the press are
routinely excluded from places that other members of the
public may not access such as grand jury proceedings,
Supreme Court and appellate court conferences, the meetings
of other official bodies gathered in executive session, the
meetings of private organizations, and non-public crime
scenes, among others. See Branzburg, 408 U.S. at 684–85. We
can imagine the havoc that might ensue if government entities
could not exclude members of the press from any non-public
part of a government building—private offices, meeting
rooms, government laboratories—without demonstrating
16 No. 20-1814
that the restriction is necessary to serve a compelling interest
and narrowly drawn to meet that interest.
MacIver’s argument that the First Amendment provides a
guarantee of “equal access” among members of the media
rests on cases that pre-date modern forum analysis or cases
with such unique facts as to have no relevance here. It is true
that the Second Circuit in 1977 stated that “once there is a
public function, public comment, and participation by some
of the media, the First Amendment requires equal access to
all of the media or the rights of the First Amendment would
no longer be tenable.” Am. Broad. Companies, Inc. v. Cuomo, 570
F.2d 1080, 1083 (2d Cir. 1977). But in that case a mayoral cam-
paign blocked access to one of three major networks that ex-
isted at the time, ABC, while allowing the other two, NBC and
CBS. (The lack of access resulted from a labor dispute). It was
the resulting inequity between the three equal networks that
the court sought to remedy, and thus it explained, “[i]n the
event that CBS and NBC refuse to either cross the picket line
or have their managerial crew operate, then the injunction
will not be operative because that would result only in ABC
getting what we might call in the vernacular a ‘scoop’ which
is not our intention. In other words, we want the networks to
be on a par … .” Id. at 1084. In addition to pre-dating Perry
and Cornelius, the facts of the ABC case are too far afield. In
the ABC case, one of three undisputedly equivalent broad-
casting companies was excluded from coverage without any
neutral criteria guiding the decision to exclude it. Id. at 1083–
84. Likewise, Sherrill v. Knight, also predates modern forum
analysis, but in any event articulates what we already know:
a government cannot deny a press pass to an individual re-
porter based on an alleged but unarticulated vague security
concern where there are no established neutral criteria for
No. 20-1814 17
granting security access. Sherill v. Knight, 569 F.2d 124, 130
(D.C. Cir. 1977). The post-Perry cases MacIver cites are just too
far off the mark factually to be of any help to MacIver. In An-
derson, a court issued a protective order that prohibited the
dissemination of all information in a pending case to all media
outlets save for one given exclusive access. Anderson v. Cry-
ovac, Inc., 805 F.2d 1, 9 (1st Cir. 1986). And in the Huminski
case, the court faced the difficult challenge of balancing First
Amendment access to the courtroom by a self-titled “citizen
reporter” who sparked security concerns by parking a van in
the courthouse parking lot with posters containing veiled
threats to a judge. Huminski v. Corsones, 386 F.3d 116, 122–28
(2d Cir. 2004), as amended on reh’g, 396 F.3d 53 (2d Cir. 2005).
We could continue distinguishing these cases, but none of
these out-dated, or out-of-context (or out-of-circuit) cases pro-
vide any help.
MacIver implores us to look to Minneapolis Star Tribune
and Arkansas Writer’s Project as two cases that it argues forbid
the state from distinguishing between members of the press.
Minn. Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S.
575 (1983); Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221(1987). But these cases reinforce the Governor’s argument by
concluding that states can subject the press to generally appli-
cable regulations without offending the First Amendment.
Minn. Star & Trib., 460 U.S. at 581 (“It is beyond dispute that
the States and the Federal Government can subject newspa-
pers to generally applicable economic regulations without
creating constitutional problems.”); Ark. Writers’ Project, 481
U.S. at 228 (same). The burden imposed on the press in Min-
neapolis Star Tribune, was not a generally applicable regula-
tion, but rather a tax which singled out the press over other
industrial producers by taxing ink and paper but not other
18 No. 20-1814
industrial component products. Id. at 584, 591. In Arkansas
Writer’s Project, it was a tax exemption based on the content
of the written media. Ark. Writers’ Project, Inc., 481 U.S. at 229.
In short, the court applied strict scrutiny, not simply because
the plaintiffs were members of a free press, but because the
press in those cases were being subject to differential treat-
ment, and in the case of the Arkansas Writers’ Project, differen-
tial treatment based on content. Here, a rule of general appli-
cation applies to MacIver: in situations where the state does
not open its governmental property to the general public,
those who wish to attend functions in state facilities must be
invited based on reasonable and content-neutral criteria. Be-
cause the state has not imposed a content-based approach to
the burden, or singled out the press over other industries for
differential treatment, strict scrutiny is not the appropriate fil-
ter with which to evaluate these regulations.
At the end of the day, we can conclude that, when we look
at expressive activities—whether pure speech, press, or
assembly—location matters. In scrutinizing restrictions to the
other enumerated expressive right, the right to assembly, the
Supreme Court has explained that ”to ascertain what limits,
if any, may be placed on protected speech, we have often
focused on the ‘place’ of that speech, considering the nature
of the forum the speaker seeks to employ.” Frisby v. Schultz,
487 U.S. 474, 479 (1988) (upholding local ordinance
prohibiting protesting in front of an individual’s residence).
This is why protests—one of the most protected forms of First
Amendment rights—can be barred from the floor of the
United States Capitol chambers but yet protected on the lawn
outside. In short, even for the most protected of First
Amendment activities, forum matters.
No. 20-1814 19
Because of MacIver’s theory that all press deserve “equal
access to events and information made generally available to
the press corps,” (MacIver Brief at 11), MacIver expends many
words extolling the credentials, professionalism, and skills of
its two “award-winning” reporters, Osmulski and Kittle. This
is not an argument that MacIver raised below, and therefore
we need not consider it. It is worth emphasizing, however,
that First Amendment rights do not turn on, nor are they cal-
ibrated to, the quality of the reporting. Imagine a system
where the government doled out the freedom of press based
on a government official’s assessment of the quality of the re-
porting or the credentials of the reporters. See Lund v. City of
Rockford, Illinois, 956 F.3d 938, 941 n.1 (7th Cir. 2020) (“We note
that First Amendment protection does not depend on the
quality of the news source or the wages of the reporter.”). The
protections of the First Amendment extend not just to the tra-
ditional press embodied by newspapers, television, books,
and magazines, “but also humble leaflets and circulars,”
which were meant to play an important role in the discussion
of public affairs. Mills v. State of Ala., 384 U.S. 214, 219 (1966).
Protecting the right of small, upstart, and non-objective media
producers, however, does not mean that the Governor of Wis-
consin must grant every media outlet access to every press
conference. We cannot fathom the chaos that might ensue if
every gubernatorial press event had to be open to any “qual-
ified” journalist with only the most narrowly drawn re-
strictions on who might be excluded. And no one’s needs
would be served if the government were required to allow ac-
cess to everyone or no one at all.
MacIver appears to have abandoned its equal-protection
claim. Although MacIver’s Statement of the Issues asserts that
its “equal access” among members of press argument is
20 No. 20-1814
rooted in both the First Amendment and the Fourteenth
Amendment’s equal-protection clause, MacIver does not de-
velop this argument other than listing a string cite of cases of
out-of-circuit, 35-to-70-year-old cases in which the court
placed the right to access by press in the equal-protection
clause. We find that MacIver has waived its equal-protection
argument, which, in any event, it describes as “coterminous”
with its First Amendment claim. MacIver Reply Brief at 3, n.1.
A party who does not sufficiently develop an issue or argu-
ment forfeits it. Scheidler v. Indiana, 914 F.3d 535, 540 (7th Cir.
2019).
In closing, it is worth reiterating the importance that this
court and the Supreme Court have placed on newsgathering
and its fundamental role in allowing citizens “to see, examine,
and be informed of their government,” not just for its own
sake but so as to enable citizens to form their own judgments
on matters of public concern and choose qualified represent-
atives. Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d
583, 599–600 (7th Cir. 2012). “The press serves and was de-
signed to serve as a powerful antidote to any abuses of power
by governmental officials and as a constitutionally chosen
means for keeping officials elected by the people responsible
to all the people whom they were selected to serve.” Mills, 384
U.S. at 219. We therefore look carefully at any claim that a
government entity is disallowing access to the media or a par-
ticular subset thereof. This does not mean, however, that
members of the press have special access to newsgathering
and must be exempt from laws and rules of general applica-
tion. ACLU, 679 F.3d at 598. Nor does it mean that we must
disallow a government’s set of viewpoint-neutral criteria
simply because we can imagine a superior system of alloca-
tion. The Governor’s office has created neutral laws of general
No. 20-1814 21
application and MacIver has not shown any evidence that it
was excluded based on its viewpoint. As a result, the district
court’s grant of summary judgment for the Governor must be
AFFIRMED.