From the Winter 2005 issue of The News Media & The Law, page 35.
By Cassandra Belter
Policies restricting media access to polls on Election Day and misinterpretations of several laws resulted in problems for several journalists covering the 2004 presidential election in Florida, Minnesota and Ohio.
Appellate court stops Ohio restrictions
In Ohio, a federal appeals court enjoined officials from enforcing polling place access restrictions on journalists on Nov. 2, just 4 1/2 hours before polls closed, ruling that the press’ role is “far from interfering with the right to vote,” but “rather to report the news of the day to their fellow Ohio citizens.”
A state law meant to protect against voter intimidation mandates that “no person shall loiter or congregate” outside a polling place or shall “enter the polling place during an election.” Ohio Secretary of State J. Kenneth Blackwell issued a directive making clear to election boards that the law applied to “anyone,” which his office later stated included journalists.
The Beacon Journal Publishing Company, publisher of the Akron Beacon Journal, sought an injunction against enforcement of the law against journalists. A U.S. District Court judge ruled against the media late in the day on Nov. 1 — the day before the election. The publisher quickly appealed, and was joined by ABC, CNN, CBS, Fox News, NBC and The Associated Press.
On the afternoon of Election Day, the U.S. Court of Appeals in Cincinnati (6th Cir.) sided with the media in a 2-1 ruling. The court acknowledged that “Ohio’s interest in ensuring orderly elections is compelling.” However, the court found that the state failed to show that applying the law to those engaged in reporting the news was necessary to further that interest, and could not show that the restriction was narrowly drawn to achieve the goal. The court noted that the state’s concern for the “turmoil that could be created by hordes of reporters and photographers” was “purely hypothetical.”
The court ordered “reasonable access to any polling place for the purpose of news gathering and reporting,” as long as the media “do not interfere with poll workers and voters.” Quoting another Sixth Circuit opinion from 2002 on access to immigration proceedings against suspected terrorists, the appellate court noted that democracies “die behind closed doors,” and for that reason the public “deputize[s] the press as the guardians of their liberty.”
The one dissenting judge found that while the publisher’s claim had “potential merit,” it was inappropriate for the appellate court to overturn the district court judge’s findings because there had been no “abuse of discretion” in applying the law in the case, meaning that the appellate court had no valid reason to review that decision.
Photographer in Florida arrested
In Florida, a Palm Beach County sheriff’s deputy chased, tackled and arrested freelance reporter James S. Henry after he photographed early voters outside of the county’s main elections office Oct. 31, according to a Palm Beach Post reporter who witnessed the event.
Henry, who spent a night in the Palm Beach County Jail, became the most visible target of a rule enacted Oct. 29 by county elections supervisor Theresa LePore prohibiting journalists from photographing or interviewing voters lined up outside polling places.
The Election Protection coalition, an affiliate of the civil rights group People for the American Way, where Henry was a volunteer, sued LePore and the Palm Beach County Sheriff’s Office on Nov. 1. The next day, Circuit Judge David Crow ruled that LePore was within her authority to restrict reporters and election monitors from standing within 50 feet of voters.
LePore asked that the media not interview voters in line because of voter complaints and security issues the elections office had encountered, she said in a phone interview.
“Nobody was able to talk to anyone in line, interview them, take pictures of them, unless voters in line asked,” she said. “If a voter says, ‘Hey, take my picture,’ it’s one thing, but to solicit someone in line is a different thing.”
Elliot Mincberg, chief counsel of People for the American Way, said in a phone interview that LePore’s restriction is a “metaphysical concept.”
“If the line stretches for two blocks, the [50-foot] restriction expands to include the last person in line,” he said. “It’s an astonishing claim, to put it mildly.”
People for the American Way plans to pursue the case in the courts, Mincberg said in January.
Henry said in a phone interview he thinks a major part of his situation was his status as a freelance journalist.
“I think the interesting thing is, why me? The very next day, Palm Beach officials seemed pretty embarrassed by it,” he said. “Theresa LePore herself escorted members of the media into polling places, breaking her own media policy.”
Diane Carhart, spokeswoman for the Palm Beach Sheriff’s Office, said she has seen inaccurate reports of Henry’s arrest.
“This was an incident that took place that was not against media personnel,” she said in a phone interview.
According to Henry and two journalists from The Palm Beach Post and the London Daily Telegraph, who witnessed Henry’s arrest, this is what happened: Henry had taken two photographs about 30 yards from the line of voters when Sheriff’s Deputy Al Cinque stopped him and asked for a press pass. Henry handed it over, and Cinque said he had to move to the media area about 150 yards away
Henry refused, and when the sheriff’s deputy threatened arrest, Henry stepped back and pointed the camera, but did not take a picture. “He charged after me,” Henry said. “It’s legal to resist illegal arrest non-violently. Frankly, this guy was pretty threatening.”
As Henry was running from the officer, he tripped, the officer fell on his back, tore Henry’s shirt, threw him against a car spread-eagled and threatened him with a stun gun, Henry said.
“They kept me in the back of the police car for three hours trying to figure out what to charge me with,” he said. “There were four or five officers debating the situation.
“They said to me, ‘How dare you come here without knowing Florida law,'” he added. “I said I thought the U.S. Constitution still applied. As they were struggling to figure out Florida law, I offered to help them, because I am an attorney.”
Henry had flown down that day from Sag Harbor, N.Y., with his friend, the Rev. George Wilson, a retired Presbyterian minister, to serve as an adviser for the Election Protection coalition and to collect information for an upcoming book on the electoral process in comparative democracies. Henry received his press credentials upon arrival.
After spending six hours in a holding pen at the jail, Henry, charged with misdemeanors of disorderly conduct and resisting arrest, was released on $500 bail paid by Wilson. When he returned to the press office, they gave him a new set of credentials, he said. His criminal case is now being handled by Florida attorney Richard Lubin.
Ion Sancho, who has been the elections supervisor in Leon County, Fla., for 16 years, said Florida elections supervisors are “all too eager to respond to voters who don’t want to be bothered” by reporters.
One of two attorneys in the 67-member state group of supervisors, Sancho said he is the “black sheep” of the entire association.
“To me, the whole process is something [where] I believe you have to balance everyone’s interests,” he said. “I believe we have plenty of laws already and one’s free speech rights are paramount. I don’t believe people have the constitutional right to be free from being bothered.”
Florida election supervisors have pushed to return to an absolute zone of privacy around polling places, provided for in a Florida law that was struck down in 1989.
At a conference in Orlando in early December, Sancho abstained from a unanimous vote by the association to revive an “absolute zone of non-interference” for future elections, he said.
Sancho was sued by the Republican Party for not using the same media restriction LePore did.
At 3:45 p.m. on Election Day, Sancho was told he had an emergency hearing at 4:45 p.m. with Leon County Judge Kevin Davey. Sancho represented himself and Davey sided with him, saying he was free to choose not to designate an area at the polls as a zone of silence.
The party “just wanted to jerk my chain and interfere with my ability to hold an election,” Sancho said.
Quarrel ends with access for photographer
In Minnesota, Donald Q. Smith, the editor and publisher of the Monticello Times, quarreled with city officials until Election Day for access to the polls, resulting in 15 minutes allowed for a photographer on the elevated track above the gymnasium polls.
Smith, former president of the Minnesota Newspaper Association, dealt with differing interpretations of a Minnesota state law that caused problems for his reporters on Election Day.
The newspaper was aware of a new law in Minnesota that restricted reporter and photographer access to the polls, but an advisory sent out by a city administrator shortly before the election interpreted the law in a way that would shut out the media entirely, he said.
“It was a bit unusual. The wording of the regulation was that [a precinct] could grant permission if they wanted to. It limited journalists to 15 minutes at the polls without interaction,” he said. “We were aware of the law and realized we might get shut out, so we put the wheels in motion two to three days before the election.”
Monticello city officials opted not to allow media access at 5 p.m. on the day before the election, Smith said.
“They legally had the right to grant no access, but it was quite surprising to us. We’ve always shot voting pictures,” he said. “The election chair made the decision to say no, and all the polls in the county received the advisory saying you have the right to say no.”
The newspaper pursued the issue on Election Day and was granted 15 minutes to photograph a polling place from above voting booths.
“We were still not pleased and we reached a compromise that was only partially satisfactory,” he said. “I must say, it was real disheartening to hear we at the Monticello Times would be disruptive. In fairness, across this country, there was a tremendous burden and responsibility on election judges. No judge would want to be the focus of anything akin to Florida. They were focused on an accurate day at the polls, and our petition came in the midst of that.”
“You can imagine my chagrin after fighting this battle on the day of the election, and coming home and seeing broadcast news in the polls throughout the Twin Cities area.”
Smith said he also saw a number of front page photographs of people putting their votes in the ballot boxes. “My hunch is, if they were to do it again, that advisory would not go out that way,” he said. “My belief is that they realized in Monticello that they didn’t follow the law like they should have.”
The Minnesota Newspaper Association legislative committee will have the election access restrictions on its agenda for the upcoming session and Smith has written Secretary of State Mary Kiffmeyer about the issue, he said.
Monticello City Administrator Rick Wolfsteller, who was ultimately responsible for the advisory sent out, said the advice came from the county attorneys’ office.
“We were just following what we believe was a state statute,” he said in a phone interview. “Our advice came from the attorneys’ office and, actually, I think the Wright County attorneys’ office got it from an adjacent county. I didn’t hear about it until late the day before the election.”
Voters may have felt reporters were infringing on their privacy rights, Wolfsteller said.
The city clerk followed the information given to them, he said.
“The city received information from the Wright County auditor’s office saying taking pictures within a polling place could be determined to not be allowed,” he said. “I know the newspaper association probably doesn’t read the law the same way.”
A “little compromise” was made when the city agreed to let the photographer onto the track above the polls so that the voters “didn’t feel threatened,” he said.
“I know [Smith] still disagrees with our interpretation of it, but it’s really the state legislators that are going to have to deal with it,” he said. “It probably wasn’t worth all of the bad press we’ve gotten for it.”
Kerry endorsement sparks harassment, paper says
A Texas newspaper in President Bush’s hometown of Crawford reported continuing harassment after endorsing Kerry.
Local school coaches stopped sending The Lone Star Iconoclast statistics sheets on school sports after the endorsement, said W. Leon Smith, editor and publisher of the paper.
“It’s much more difficult getting information,” he said in a phone interview. “A lot of our network has dried up.”
Part-time college student reporters were harassed and intimidated when sent to a local festival to take photographs, Smith said. Members of the festival’s committee called the next day to apologize, he said.