Open government experts are raising concerns over Republican legislative leaders’ decision to ban average members of the public from recording lawmakers in hearings at the Wisconsin State Capitol.
A story about the issue appeared in the Jan. 17 issue of the Milwaukee Journal Sentinel. According to the story:
The move came after WisconsinEye ceased operations in December.
“It raises fairly serious First Amendment problems,” said Rick Esenberg, president and general counsel of Wisconsin Law & Liberty, of the rule an interview for the article.
Esenberg said governmental bodies can enforce reasonable rules to “keep decorum in order,” including barring cameras in courtrooms. He said the position of the Legislature is made weaker by the number of exceptions members of the Legislature have — and can exercise.
“It’s unclear why members of the media would have a greater right to do this than members of the public,” Esenberg said.
Average members of the public have previously not been prohibited from filming their lawmakers debating important issues in committee hearings.
During a Jan. 14 Assembly committee hearing on bills including an effort to regulate data centers, attendees were notified mid-hearing that only credentialed members of the media would be allowed to film proceedings.
Democratic State Rep. Mike Bare said he was told by a Republican committee leader the enforcement was actually an effort to limit footage from public meetings in the Capitol that could be used in campaign ads.
WisconsinEye footage could not be used in campaigns, Bare said in relating what the Republican lawmaker told him, while the average member of the public does not have the same restrictions.
Wisconsin Attorney General Josh Kaul criticized the policy but declined to weigh in on whether it infringes on the First Amendment.
“Recordings of government proceedings that are open to the public allow more people to observe what’s happening in those proceedings,” Kaul said in a statement. “That’s something that policymakers should support, not try to prevent.”
It’s unclear whether a lawsuit challenging the policy on First Amendment grounds would be successful.
Marquette University professor Erik Ugland, who specializes in media law and First Amendment issues, said the First Amendment can’t compel governments to be transparent and such policies in pursuit of open government must be established by state statutes.
“This (rule) is permissible in that the Wisconsin Open Meetings Law does not directly affect the Legislature,” Ugland said. “When they violate these principles, they can’t be forced to adhere to them and they can follow their own rules. But those rules seem inconsistent with the broader spirit of the Open Meetings Law and the principle of transparency.
“If the Legislature is changing its rules or enforcing rules that are inconsistent with that law,” Ugland added, “they should at least be expected to articulate a specific reason why those (hearings) shouldn’t be open through the recording.”
UW Law School professor Anuj Desai, who specializes in First Amendment issues, said if the Legislature’s rationale is to limit footage of lawmakers from being used in campaign settings, “that feels to me like pretty Cleary a First Amendment violation.”
Wisconsin Transparency Project President Tom Kamenick said it’s unlikely “that the state constitutional command that the doors be open would require them to permit recording.”
Kamenick also said there may be a First Amendment argument to make in court, but it’s unclear whether it would succeed.
“Broadly speaking, courts have been expanding First Amendment rights to permit recording of public officials doing their jobs in public places,” Kamenick said in an email. “Typically this has been applied to people filming police (so long as they’re not interfering).
“I’ve seen a couple of cases expanding it to portions of government buildings open to the public, like the lobbies of police stations or clerk offices,” Kamenick added. “It would be another step to apply that to legislative meetings open to the public. Not implausible, but it would be a new argument.”
Marquette University Associate Professor of Journalism and Media Studies A. Jay Wagner said the rule raises transparency concerns regardless of of whether it violates the public’s First Amendment rights.
“I would like to hear what a judge has to say about that — maybe it does, maybe it doesn’t, but it’s very clearly contrary to open government principles of just general principles of representative governance,” Wagner said in an interview.
“The Open Meetings [Law], it starts with a little preamble about the importance of the public being able to participate and see stuff . . . it feels very contrary to what we’re trying to do here,” Wagner added.
Although Republic State Sen. Chris Kapenga said lawmakers are in talks about addressing the gap in streaming coverage left by WisEye’s absence, he said the Legislature will continue to follow Senate rules in the interim.
