SCOTUSblog press-pass hearing raises questions about Senate credentialing process

The status of a popular U.S. Supreme Court website as a publication credentialed to cover the Senate rests on a credentialing committee's opinion of the site's past and present ties to the site publisher's law firm.

SCOTUSblog, a website devoted to comprehensive coverage of the U.S. Supreme Court, still awaits a decision from the U.S. Senate Press Gallery Standing Committee of Correspondents on whether it will receive Senate press credentials.

In April, the committee rejected the application of SCOTUSblog editor and reporter Amy Howe and said it would not renew SCOTUSblog reporter Lyle Denniston’s credentials after questioning whether the site fits the gallery’s guidelines for editorial and financial independence.

In a 90-minute public hearing on May 23, Denniston and SCOTUSblog publisher Tom Goldstein answered questions from the gallery’s standing committee about the conduct and operations of the site. Although the blog has ties to a law firm that handles many Supreme Court cases and where Goldstein is a partner, Goldstein emphasized at the hearing that the site has firewalls in place to maintain editorial independence.

SCOTUSblog provides coverage of every case heard and decided by the Court as well as the nominating process for justices. It serves as a leading source of news and analysis on the Court, and has won a number of journalism awards, such as the Peabody Award for excellence in electronic media.

In deciding on the site's fate, the standing committee, comprised of five journalists from organizations such as the Wall Street Journal and The Washington Post, must balance the gallery’s standard that its members not advocate on behalf of corporate or government interests with the fact that some newer media outlets do not have the same organizational structures and funding models as traditional publications.

Howe acknowledged SCOTUSblog is in some ways different than traditional publications but said the site has proved through its coverage and firewalls that it merits credentials.

“We are sort of the epitome of some of the new niche publications that have sprung up on the internet,” Howe said. “We don’t look like The Washington Post, but we’re doing, I like to think, a lot of high quality work.”

“The committee is going to have to think about how they’re going to deal with these in the future, because we’re not the only one,” she added.

The standing committee has not announced when it will make its decision, and its chairwoman, Wall Street Journal reporter Siobhan Hughes, declined to comment before the result is released.

If the committee rejects SCOTUSblog's application, Howe said the site will take the matter before the Senate Rules Committee.

The Reporters Committee for Freedom of the Press sent a letter to the director of the Senate Press Gallery on May 22 to express support for SCOTUSblog’s press credentials.

More than 1,500 reporters and 200 news publications have credentials from the Senate Press Gallery Standing Committee, according to the gallery’s website. Among the steps to get press passes, reporters must establish that they are “full-time, paid correspondents” requiring access to the Senate for recognized publications that are editorially independent of any group that might lobby the federal government.

Goldstein published the hearing materials from the May 23rd hearing in a post on the site, which include the committee's expanded guidelines for credentialing reporters and publications.

A main concern of the committee’s was the blog’s relationship with Goldstein & Russell, P.C., Goldstein’s boutique law firm focused on representation before the Supreme Court.

Goldstein started the blog in 2002 when he worked for Akin Gump Strauss Hauer & Feld LLP. When Goldstein left to start his own firm, he took the blog with him, and, as he said at the hearing, spent $250,000 per year out-of-pocket to pay for the site. Now, Bloomberg Law fully funds SCOTUSblog.

Goldstein serves as publisher of the site. In that role, he provides technical guidance and editorial direction on larger cases and on overall site strategy, he said at the hearing. Apart from that, he is a partner for Goldstein & Russell, where he has personally argued in 31 of the Court’s merit cases in the past 15 years, according to the firm’s site.

SCOTUSblog and Goldstein & Russell share other ties as well: some lawyers of Goldstein & Russell write for the blog, and SCOTUSblog pays rent to Goldstein & Russell for use of office space adjacent to the attorneys, Goldstein explained during the hearing.

In response to committee members' questions about whether the blog is editorially independent, Goldstein said that, even though his firm is involved in about 10 percent of cases on the Court's docket, the site has created many firewalls, which it lists on its website. For instance, although the blog reports on all merits cases that the Court hears, only outside reporters cover cases in which a member of the firm is an attorney. Additionally, the site only provides basic coverage of the firm's cases, whereas it provides analysis and other special features for some other cases.

The firm has even dropped out of a case so Denniston could cover it for the blog, Goldstein said to the committee.

Goldstein said when SCOTUSblog provides opinion pieces, outside law professors normally write them and the site tries to display opposing viewpoints.

In the hearing, Goldstein compared his dual roles to media owners, such as Jeffrey Bezos of Amazon and the Washington Post, who “wear multiple hats” and whose news outlets are still able to exercise editorial independence.

When Kate Hunter, a member of the Standing Committee and a reporter for Bloomberg, asked whether readers realize that Goldstein has multiple roles, he admitted that conflicts, though few, might arise.

For example, Goldstein said that about six times in the past 14 years he’s seen the court publicly disclose information before it was meant to be released.

In these situations, Goldstein said he views himself as having "two sets of ethical obligations that are in contention of each other": his responsibility to report accurately to his readers and his role as an officer of the court.

Goldstein said in the hearing that SCOTUSblog has a rule for these instances. If Goldstein discovers information that was prematurely released, he will not write about it; however, if Denniston or another SCOTUSblog reporter makes the discovery, they normally will report it.

“I can’t imagine many of these situations rising in regards to the Senate,” he said in the hearing.

Goldstein has said on the site that SCOTUSblog needs access to Senate meetings to cover Court matters that take place in the Senate, such as justices' nominations and budget discussions.

Additionally, when the Supreme Court press office makes its own credentialing decisions, it often looks at whether applicants have Senate press credentials, according to a SCOTUSblog post. Denniston has a personal credential with the Court through WBUR, an NPR affiliate in Boston where he also reports, and he said at the hearing that the Court has made special arrangements for him to maintain credentials because he has covered the institution for more than 50 years. However, those credentials only apply to Denniston, and SCOTUSblog would likely have to apply for a new Supreme Court press pass after he retires.

Several ethics experts recognized the complexity of the questions, but generally supported SCOTUSblog's application, particularly due to Denniston's role.

Jane Kirtley, the Silha Professor of Media Ethics and Law at the University of Minnesota’s School of Journalism and Mass Communication and former executive director of the Reporters Committee for Freedom of the Press, said she believes SCOTUSblog is currently a strong news source.

“There probably was a legitimate question at the founding of this organization whether there were legitimate firewalls in place,” Kirtley said. “With the Bloomberg funding, it seems to me there [have] been good-faith efforts to keep the two entities separate.”

However, Kirtley said much of her confidence rests on Denniston's experience and his status as what she calls the site's ethical “watchdog." She said she does not know enough about the blog’s firewalls to know how they would stand once Denniston leaves, and said she would like to see “some kind of mechanism” in place that periodically and objectively reviews the relationship between the site and the firm.

Although the committee emphasized in the hearing that they were not reviewing Denniston and Howe as journalists and rather reviewing SCOTUSblog as an organization, Kirtley said it is inherently difficult to dissociate Denniston’s experience and Goldstein’s roles from the discussion.

As a trained lawyer, Goldstein will naturally take a different perspective to ethical conflicts than a journalist, Kirtley said.

“They may not see the problems that are purely journalism ethics problems that would be clearer to those that have been [journalists],” she said.

Paul Fletcher, secretary-treasurer of the Society of Professional Journalists and member of the organization's ethics committee, said SCOTUSblog’s coverage distinguished it from other law firm blogs, which he said typically follow the lawyers of a firm or serve to advertise it.

“SCOTUSblog has gone from really an attempt at marketing to being a source that is very widely respected,” said Fletcher, who is publisher and editor-in-chief of Virginia Lawyers Weekly. “SCOTUSblog took on a life of its own because it provides the most current coverage about the Supreme Court.”

Fletcher said that while the credentialing application process has motivated SCOTUSblog to take steps to explain its firewalls, he thinks the site could still do more.

“I would like to see some prominent acknowledgment that there’s a connection between SCOTUSblog and the Goldstein law firm, of the fact they’re involved with this,” Fletcher said. “I imagine most people don’t realize that there’s a connection.”

Kelly McBride, senior faculty for ethics at The Poynter Institute, said SCOTUSblog’s business model reflects the trend of other “start-up” publications shedding traits held by traditional news outlets.

“Among journalism startups, it is quite common to have a group of people who have very different ideas of what their roles should be in the business model,” McBride said.

McBride said different approaches to the news business model should not prevent the committee from credentialing SCOTUSblog.

“They also don’t have the traditional understanding of journalism media ethics, but that doesn’t put them outside of the circle of people performing journalism,” McBride said.

All three ethics experts said this matter has importance beyond SCOTUSblog.

Kirtley warned that, due to the media industry's changing finances, many other applicants for Senate press passes might resemble SCOTUSblog.

“I absolutely take Goldstein’s point about the new media mode of funding," She said. "In some respects, this could be a test case because of the integration that existed originally between his firm and [SCOTUSblog]."

Fletcher said he plans to take this case into consideration as he works with the SPJ executive board to revise the organization's Code of Ethics.

And McBride said credentialing boards should consider a "diversity of audiences and diversity of representation" in the future.

"The reality is the way that the media landscape has changed is such that there are a lot of legitimate information providers who are able to effectively inform the market of ideas, and SCOTUSblog is clearly one of them," she said.