The struggle to get cameras and new media in places where government gathers,  from the state Capitol to county board rooms, is hampered by case law that, in its outlook on technology, is sometimes stuck in the 1970s.

The ACLU-MN is looking at the current ban on online-only media from the floor of the state House of Representatives, the source of a slow-burn dispute that got white-hot this week when new House rules — largely withdrawn, apparently — threatened the working ways of long-established media outlets.

The mediums of video and the Internet are following in the the hard-won footsteps of radio and television in gaining access to government, Nelson said.

The civil liberties group understands the legislature’s problem of limited space on the House floor, Nelson said, but wants to see neutral criteria for the granting of press credentials. Also at issue is a ban on cameras in House committees for all but credentialed journalists.

Case law offers mixed lessons for media access to government meetings, according to Nelson. “The courts draw a line between video- and audio-taping” — a line that she guessed may date to days when video equipment filled a room instead of a iPhones and BlackBerries.

The organization has taken a position on a conflict in St. Louis County, where county commissioners object to videotaping by a watchdog group. In a Feb. 10 letter to the county board (pdf), Nelson wrote:

The [Minnesota Open Meeting Law (OML)] protects access to government meetings for both the general public and the news media. … Implicit in the public’s right to attend government meetings is the right to record those meetings.

In the case of the county board, no official recording is made of its workshop meetings. It’s different at the state Capitol, where the Legislature offers its own video feed.

“If official recordings [are provided] then interests [of those seeking the right to record] are less,” Nelson said. However, the official Capitol feed provides video from only one legislative venue at a time, as reporters reminded a House staffer who called a clear-the-air meeting with media Monday.

The “forum doctrine” recognized by courts interpreting the federal Constitution’s First Amendment defines public forums as spaces like public parks. Under the doctrine, rooms where elected officials make decisions are non-public forums, where greater limits are allowed.

(While the First Amendment says Congress can’t restrict free speech, the Minnesota Constitution specifically guarantees free speech rights to citizens.)

But restrictions at government meeting places must be neutral as to the identity and content, Nelson said. That means, for example, that partisan trackers should have the same rights as citizens and journalists to wield HandyCams at House hearings.

“It’s one thing to have the Legislature preserve decorum inside a hearing room, making sure there are not disruptions and allocating space in an evenhanded way,” Nelson said. Rules that apply only to one kind of media, on the other hand, seem to represent “another way for restricting how material is going to be used.”

Should journalists who do their reporting online have the same access at the state Capitol that broadcast and print media enjoy? The issue is especially intriguing people interested in media and government. “It is a beaut,” said Minneapolis media attorney Mark Anfinson.

New media journalists have forced the issue by proposing a rule change that would add “online media” to the types of news outlets that can get credentials to work on the floor of the Minnesota House of Representatives.

Who is a journalist? Where does government allow journalists to go to report the news? Those are questions that came up during the Republican National Convention (RNC) in St. Paul, Anfinson notes, but the online-media question at the Capitol “focuses it more perfectly [with] a single geographical locus:” the House floor.

“Some legislators are really freaked out about liveblogging and live uplinks,” said Jane Kirtley, a professor of media ethics and law at the University of Minnesota’s School of Journalism and Mass Communication. “It’s nothing personal. … [They] want to continue to deal with the media [they] know. I can understand that.”

But those fears shouldn’t guide policy, Kirtley said. “There needs to be some rational basis by which a government entity can decide who’s going to be there.

“If the issue is decorum in the space, then the body should have rules of conduct,” Kirtley says, adding that doesn’t mean rules regarding the content of reporting. What might they be? Hughes says he can envision restrictions on tripods that take up space and could cause disruption as they’re taken down or set up. Kirtley offers the example of a ban on noisily changing video cassettes during proceedings. If it’s not followed, she said, “We can kick you out.”

“We’re looking at it. We don’t have an opinion,” said Chuck Samuelson, executive director of the American Civil Liberties Union of Minnesota (ACLU-MN). He said the organization might decide on a response to the issue today. Samuelson said he’d received about 20 e-mails on the issue.

“Because the discriminated class are wordsmiths, you get a tremendous amount of smoke,” he said, as with issues involving celebrities, like former Minnesota Viking Carl Eller’s recent run-ins with the law.

The ACLU may step in if the current rule violates the state or federal constitutions. But those don’t contain specific protections or guarantees for journalists. “The First Amendment is there to protect publishers,” Samuelson says. “As a journalist you have no more rights than John Q. Public. …

“If I were to say I’m going to put a rule in [that] I can only allow 20 people on the floor as observers, we’re going to assign these observers according to circulation [or Web hits] … then next year assign credentials depending on circulation range,” Samuelson said. “That ‘s how I would do it: John Q. Public is represented by these [media outlets]. And at the beginning that’s basically what they did,” Samuelson said. “But the media’s blown up.”

Might the fuss put all media access to the House floor at risk? Anfinson, who represents news organizations across the state, thinks so, and Kirtley agrees it’s a risk.

Art Hughes, a radio reporter who like Kirtley serves on the state board of the Society of Professional Journalists (SPJ), disagrees. “That’s not going to happen,” Hughes said. “There’d be a revolution.”

Related:

New Minnesota House form limits what would-be tapers can capture

Who Owns the J-Word? Videoblogger’s Jailing Raises Questions for Journalists

ACLU-MN investigated the allegations and in court documents filed in U.S. District Court said the Muslim organizations from which TIZA is leasing its space are illegally benefiting from the leasing arrangement.

According to the complaint, Asad Zaman serves as executive director, trustee and principal of TIZA and is also vice president of the Muslim American Society of Minnesota, the religious organization that leases space to the school.

“He is thus subject to conflicts of interest resulting from his roles on behalf of both lessors and lessees with respect to the charter school,” the complaint asserts. “He has been quoted as stating that ‘Islam makes no distinction between public and private life.’”

The complaint lays out a number of other instances of entanglements between religious organizations and the school, improper prayer services, improper exposure of students to religious iconography and the posting of religious materials in public areas.

In addition, the complaint cites cases where Islamic religious traditions are alleged to be encoded in school policy. According to the complaint, the school handbook requires “girls in grades six through eight to wear a skirt or jumper with pants underneath or a ‘full-length dress (jilbaab)’” and states that female teachers must “be covered from neck to wrist and ankle.” Those rules do not apply to boys or male teachers.

The suit seeks a stop to state endorsement of TIZA and a refund of state monies received by the school. It also faults the Minnesota Department of Education for lack of oversight, especially in light of media reports about possible infractions.

“The lack of government oversight is a matter of grave concern, because the Minnesota Department of Education gives over $30 million annually in rent subsidies to charter schools and due to the agency’s lack of supervision, we have no way of knowing how much taxpayers are subsidizing religious organizations,” Chuck Samuelson, executive director of ACLU-MN in a statement Wednesday. “However well-run and academically challenging a religious school may be, it is unconstitutional for public funds to be used for religious education.”

Larry Craig Photo: WDCpix

U.S. Sen. Larry Craig (R-Idaho) cannot withdraw his guilty plea in the infamous 2007 Minneapolis-St. Paul airport bathroom sex case, the Minnesota Court of Appeals ruled today in an “unpublished” opinion. That means Craig is stuck with having copped in District Court to a misdemeanor charge of disorderly conduct for allegedly signaling an interest in engaging in sex via foot taps from one restroom stall to another in which an undercover police officer was staked out.

The decision’s “unpublished” status means the court doesn’t want its ruling used as precedent in future cases — interesting, in view of charges that Craig sought special treatment or was being singled out for preferential or especially harsh treatment because of his status as a U.S. senator. Craig issued this statement:

I am extremely disappointed by the action of the Minnesota Court of Appeals. I disagree with their conclusion and remain steadfast in my belief that nothing criminal or improper occurred at the Minneapolis airport. I maintain my innocence, and currently my attorneys and I are reviewing the decision and looking into the possibility of appealing. I would like to thank all of those who have continued to support me and my family throughout this difficult time.

Whether the 28-year Senate veteran who is retiring this year plans an appeal isn’t known; Craig’s office has not yet returned a phone call to the Minnesota Independent. One recorded message said the staff was busy boxing up his files.

The case hinged on Craig’s plea, as cited in today’s ruling:

I am pleading guilty to the charge of Disorderly Conduct as alleged because on June 11, 2007, within the property or jurisdiction of the Metropolitan Airports Commission, Hennepin County, specifically in the restroom of the North Star Crossing in the Lindbergh Terminal, I did the following: Engaged in conduct which I knew or should have known tended to arouse alarm or resentment or [sic] others, which conduct was physical (versus verbal) in nature.

And the offense that’s at the root of all this? As cited in today’s opinion:

The complaint stated that appellant “peered” into the restroom stall occupied by the officer for as long as two minutes and that the officer “observed the Defendant tap his foot several more times and move his foot closer to the stall occupied by [the officer.  The officer] moved his own foot up and down slowly.  [The officer] observed the Defendant move his right foot so that it touched [the officer‟s] left foot, at which point the Defendant‟s foot was within the stall area of the stall occupied by [the officer].”

Hudson, Toussaint and Kalitowski

A three-judge panel consisting of Judge Natalie E. Hudson, Chief Judge Edward Toussaint, Jr., and Judge Thomas J. Kalitowski issued the decision. The opinion has two parts. First, the panel denied Craig’s arguments that his plea wasn’t specific about what action he was pleading to, and that there wasn’t an adequate judicial record of the hearing where his written plea was entered. (There is a record, the judges said; Craig simply didn’t provide them with a transcript.) It was Craig’s fault, the judges wrote, that he didn’t ask for a second hearing to establish what had occurred at the first — but at the time, Craig was still hoping to keep the case hush-hush.

The court didn’t buy Craig’s insistence that no “others” were bothered by his conduct (besides the officer in the next stall) as the charge requires. The judges said they took “others” to mean people who were also in the restroom at the time, and anyway the presence of “others” beyond one other person can be theoretical.

Craig’s late-in-coming entrapment defense also didn’t move the judges, who found that, for one thing, the senator initiated the bathroom dialog, and for another, failing to assert entrapment isn’t grounds to take back a guilty plea.

In the second part of the opinion, the Court of Appeals panel found that the law under which Craig was charged does not inhibit free speech to an overly broad extent. The senator knew that his foot-tapping might “arouse ‘alarm, anger or resentment’” as required under the law, and also that it was an invasion of privacy.

The American Civil Liberties Union of Minnesota (ACLU-MN) filed an amicus brief in the appeal at the request of Craig’s attorneys, ACLU-MN Executive Director Chuck Samuelson told MnIndy in an interview today. Samuelson conceded that the Court of Appeals “didn’t like our arguments,” which focused on the free-speech aspects of the case. But he contends, “Their reasoning is wrong.”

They talked about the language ‘to arouse’ … that inciting language. They say [Craig] was doing it. But they ignored that the guy who started it [the airport police sergeant] was not Craig [the official charge quoted above notwithstanding].

Frankly the court is really conflicted on this one. My gut tells me they just wanted this case to go away. The ACLU’s position in these sorts of laws have been used against gay men for a long, long time. If the police were concerned about public sex in the bathroom, then they should have followed best practices of police departments — put a sign on door, send cops through … the activity will probably disappear from that restroom and move someplace else. …

This really is entrapment, in our opinion. There is a line there that we think this sergeant crossed. By [the court's] reasoning the police officer is more guilty than Craig.

This a classic first amendment case of government suppression of unpopular speech. If this is inappropriate, what’s the status in heterosexual pickup bars? They [Craig and the officer] weren’t engaging in or planning on having sex in the bathroom. They were planning it [for somewhere else].

There is a double standard. Speech is speech. This never got more than speech. You can’t regulate this speech and then not regulate the speech of heterosexual people. … We don’t have police officers posing as [sexually available] women or whatever. …  The antidote to bad speech is more speech — the sign on the door [prohibiting bathroom sex].

With this ruling, Craig regains his rightful place as Minnesota’s most prominent issue of public-sex-in-a-bathroom-stall — eclipsing the more recent occurrence at the Metrodome during a University of Minnesota football game, where a sex act actually took place in a bathroom stall.

“The conduct at the football game,” Samuelson says, “now that was conduct.”

Now the Bloomington City Council is poised to dive back into those same waters. On Sunday, Bloomington got authority from the state Legislature to impose new sales taxes that would help fund a planned Mall of America expansion. And Monday night the Council adopted new restrictions on public assemblies, in anticipation of Republican National Convention protests that could spill from St. Paul into Bloomington’s streets, hotels and the environs of the mall itself.

Minneapolis attorney Marshall Tanick tells Minnesota Monitor the convergence of new protest regulations and another round of public investment at the Mall of America may reopen issues that seemed settled after the State v. Wicklund opinion. Tanick has written frequently about the specialized field of mall law, most recently in Minnesota Lawyer, where he compared the Wicklund case to a December 2007 California Supreme Court ruling permitting public protests in malls. Along with residents of other states where courts rulings have diverged from Wicklund, Californians, he concluded, enjoy far broader free-speech rights in their shopping malls than Minnesotans.

Steven P. Aggergaard, another local attorney, delved deeply into the question of free speech in publicly funded, privately owned spaces in a 2006 law review article. He thought he saw light shining through the seeming wall the state Supreme Court erected with its Wicklund opinion. He agreed with the trial judge that the state constitution seems to offer protections for speech in places built using public funds – particularly speech directly tied to the political process, as demonstrations during the Republican convention likely would be.

“Nice try,” says Sandra Johnson, the associate city attorney in Bloomington, who prosecuted the case against the fur protesters in the 1990s and drafted the new public assembly ordinance for the city. She finds Aggergaard’s arguments “wishful thinking” and takes pride in the unanimous Wicklund ruling for which she argued. A self-professed free-speech geek whose job obliges her to approach the issue from the side of the regulators, Johnson said that beyond providing for public safety, the proposed ordinance is intended to eliminate opportunities for city staffers processing parade permits to impose arbitrary costs or free-speech limits on particular applicants.

Teresa Nelson worked on a friend-of-the-court brief supporting the protesters in the Wicklund case as a new lawyer with the Minnesota Civil Liberties Union. Now the staff attorney for the renamed American Civil Liberties Union – Minnesota, Nelson found fault with the new Bloomington ordinance as originally proposed and met with Johnson last week to suggest changes. The new version is “greatly improved,” she told Minnesota Monitor before the Bloomington City Council acted Monday, but still vulnerable to constitutional challenge on two points: requiring applicants to indemnify the city against harm, and giving the police chief the discretion to require applicants to obtain insurance for their planned events. Even if city officials have the best, most unbiased intentions, Nelson says, an insurance company could easily require certain groups to pay more for coverage. And some courts haven’t been sympathetic to the kinds of exemptions the ordinance offers for religious, educational and government applicants.

The Bloomington City Council voted 6-1 Monday to approve the revised permit requirements Johnson proposed, but not before making further changes, including several sparked by Council Member Amy Grady. Her vision of a simple, 52-mom, anti-war demonstration hit by high permit fees, insurance requirements and failing those, misdemeanor charges, seemed to turn council opinion. They removed the insurance (though not the indemnification) requirement, dropped the penalty to a petty misdemeanor, and made the protest permit fee $15 instead of $60.

Continued: Click “Read More”Background: The Wicklund case

The 10 or so fur protesters arrested for urging shoppers to boycott Macy’s inside the Mall of America just before noon on May 19, 1996, got more attention than they could have imagined. Hennepin County District Judge Jack Nordby rejected a motion from their attorney, Larry Leventhal, to dismiss trespass charges. But Nordby did so with a 62-page ruling asserting that the Minnesota Constitution protected their right to protest in a public place that had received significant public funding.

His unusual treatise on Minnesota’s higher standard of protection for free speech prompted an unusual pre-trial appeal from the prosecution and ultimately resulted in the unanimous ruling by the state Supreme Court that rejected Nordby’s argument and returned the case to his court. In his verdict at the trial shortly thereafter, Nordby lambasted the Supreme Court, and nine years later the high court’s slap still burns him. “It was a terrible, dishonest opinion that misrepresented my argument and the state constitution,” Nordby said Sunday in an interview. Leventhal, who defended the 1990s mall protesters pro bono, likewise told the Minnesota Monitor he found the Wicklund opinion “very disappointing” because it “circumvents the rights of free speech. Citizens should be able to share in the benefits if governments erect alternative Main Street areas” — such as the Mall of America.

Leventhal’s arguments lost in the state Supreme Court — resoundingly — and protesting without private permission inside the Mall of America remains illegal. But two stops up the Hiawatha Light Rail Transit Line from the mall, another privately owned public square has sprung up since the Wicklund case: a development called Bloomington Central Station. Government provided $3.5 million of the $4 million that went into the centerpiece of the 50-acre mixed-use development: a 1.9-acre, privately owned and operated plaza. Bloomington retained an easement to use the plaza as a public park. Indeed, the city’s Web site describes Bloomington Central Station Park, which opened last June, as “a public park featuring seating areas, garden rooms, water walls and fountains, paved and lighted walkways, and public art,” and Bloomington’s park and recreation department is sponsoring a public concert series there this summer. Earlier planning documents blurred the public and private to pitch the project promising a “central open plaza/park that democratically allows tenants to leverage this special asset” with “a ‘living street’ similar to a plaza or town square.” Both attorneys — Bloomington’s Nelson and ACLU-MN’s Johnson — found the prospect of applications for public assemblies there intriguing from a free-speech standpoint.

With all the legal and linguistic line-blurring it’s not surprising that, as urban expert Judith Martin observes, most Americans are confused about what is public space and what is not, and where their free-speech rights seem to apply. (Martin, who chairs the urban studies department at the University of Minnesota and long served as president of the Minneapolis City Planning Commission, testified as an expert witness in the Wicklund case.) The trend among governments and developers, Martin told the Minnesota Monitor, is “to reduce the possible spaces where that kind of perceived freedom is actual freedom.”
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