Drew Lee invited me to discuss my lawsuit against officials of the Minnesota Department of Health on the 8:35 a.m. segment of Justice and Lee this morning. The show is broadcast on Twin Cities News Talk AM 1130 and also available via live stream here. I wanted Drew’s audience to have easy access to this update on the status of the lawsuit that I posted on Power Line last week:
I have brought a section 1983 lawsuit against Minnesota Health Commissioner Jan Malcolm and MDH press officer Michael Schommer for excluding me from the daily MDH press briefings on and after April 27. Although Malcolm contends she had nothing to do with it, my exclusion from the press briefings on that date and subsequently is undisputed. I published my sworn statement setting forth the facts of the case as I understand them in my notes on the lawsuit.
That post included the photo of my federal courts press badge below. It tends to undermine Schommer’s assertion that I don’t belong on the briefings because I’m not a “professional journalist.” That’s how Schommer explained my exclusion to Washington Free Beacon reporter Collin Anderson for his May 20 story on the underlying events. (“Minnesota’s health department told the Free Beacon that access to the briefings is limited ‘only to professional journalists.’” Collin added that Schommer “did not respond to questions about the criteria that determine whether a reporter is a ‘professional journalist’ and did not explain why Johnson was excluded after having previously attended the briefings.”)
I am represented in the lawsuit by Theresa Bevilacqua and Ian Blodger of Dorsey & Whitney. Theresa is the chair of Dorsey’s Minneapolis trial group. I am grateful she agreed to take the case on my behalf and that the firm approved.
This lawsuit stands at the intersection of politics, public policy, COVID-19, and the First Amendment. It is an important and newsworthy case. We have put in evidence that brings the case right into the office of Governor Walz. Yet the case has attracted no media interest.
I allege that Malcolm and Schommer have excluded me from the press briefings on political grounds in violation of the First Amendment. They moved to dismiss the lawsuit for failure to state a claim upon which relief can be granted — i.e., they assert that I have no legal claim. I moved for a preliminary injunction ordering them to reinstate me to the press briefing conference line.
The case is pending before Judge Donovan Frank. Judge Frank denied both motions. Taking the allegations of my amended complaint as true, Judge Frank held that the substance of my First Amendment claim against Malcolm and Schommer is legally sufficient. Denying defendants’ motion to dismiss my case, Judge Frank adopted the limited public forum analysis on which my lawsuit is predicated. If Malcolm and Schommer excluded me from the calls on political grounds, that exclusion was illegal. I posted Judge Frank’s 17-page memorandum opinion and order in part 5 of this series.
The pretrial management of the case is assigned to Magistrate Judge Becky Thorson. Magistrate Judge Thorson has entered a scheduling order under which the case is to be ready for trial in March. The parties are to exchange basic documents on September 4. Defendants’ documents should include the various lists specifying the parties invited to the regular press briefings before and after April 27.
Although Schommer filed a sworn statement asserting that he excluded me on April 27 for apolitical reasons and that his conference with Governor Walz’s staff about me on that date was coincidental, he has so far failed to identify any reporter other than me who was included on the briefings until April 27 and then excluded under his April 27 dispensation. I feel like the man in Lincoln’s joke who was tarred and feathered and ridden out of town on a rail. If it wasn’t for the honor of the thing, I’d rather walk.
I posted a copy of Schommer’s sworn statement in part 3 of this series. Schommer’s statement lacked any supporting exhibits. Not one. I want to see those documents. When I get the documents, I intend to post them for readers to take a look with their own eyes as usual and provide my own analysis.
Magistrate Judge Thorson has scheduled a settlement conference in the case on September 17. The settlement conference is to be conducted via Zoom. I will of course report the resolution of the case if it is resolved. I will report what we learn in discovery if the case is not resolved. Given the lack of interest among the Minnesota media, my reports on the case are a Power Line exclusive.