[00:00:00] Speaker 01:
All right, if council are ready, let's move next to 25-4124, Utah Political Watch versus Musselman.

[00:00:08] Speaker 01:
Mr. Miller, you may introduce yourself and proceed.

[00:00:13] Speaker 04:
Yes.

[00:00:14] Speaker 04:
Thank you, Your Honor.

[00:00:15] Speaker 04:
I'm Charles Miller with the Institute for Free Speech.

[00:00:18] Speaker 04:
I'm here today on behalf of Brian Schott in Utah Political Watch.

[00:00:23] Speaker 04:
I'd like to reserve about four minutes for rebuttal.

[00:00:26] Speaker 04:
So we'll see how it goes.

[00:00:34] Speaker 04:
Speech restrictions based upon the identity of the speaker are all too often simply a means of controlling content.

[00:00:44] Speaker 04:
That's from Citizens United.

[00:00:46] Speaker 04:
And in addition to that, in Reed versus the town of Gilbert, the Supreme Court made clear that distinctions based upon the function of the speech or the purpose of the speech

[00:01:00] Speaker 04:
are also subject to scrutiny because they really are also designed to go to content.

[00:01:07] Speaker 04:
And then I just want to note something else here from the Supreme Court before moving to sort of discuss the facts here a little bit.

[00:01:15] Speaker 04:
Today's St.

[00:01:15] Speaker 04:
Patrick's Day, I got to mention Hurley versus Irish Americans.

[00:01:20] Speaker 04:
All right, so we quoted them in the brief as well for the purpose that the state cannot intrude upon the exercise of editorial content or judgment.

[00:01:30] Speaker 04:
Now, in my brief, I made the mistake of editing, had an id there instead of the citation.

[00:01:35] Speaker 04:
But that was the case.

[00:01:35] Speaker 04:
We're citing 515, US 557 and 570.

[00:01:40] Speaker 01:
Why isn't this a content neutral policy?

[00:01:45] Speaker 04:
Yeah.

[00:01:45] Speaker 04:
So on its face, it's not content neutral because it excludes independent.

[00:01:52] Speaker 04:
That's right.

[00:01:53] Speaker 04:
Yeah.

[00:01:53] Speaker 04:
And so what we're doing is we're taking media.

[00:01:56] Speaker 04:
So you have a policy that creates a lot of public form

[00:02:00] Speaker 04:
non-public forum, what have you, it's pretty much the same in this instance, for journalists.

[00:02:05] Speaker 04:
And then it's creating this artificial distinction that they began in 2025 to say, but not independent journalists or bloggers.

[00:02:13] Speaker 04:
And it's a distinction that makes no sense and they have no reason for it.

[00:02:16] Speaker 04:
I asked them, you know, where you have space constraints, is there a reason for this?

[00:02:19] Speaker 04:
And they said no.

[00:02:20] Speaker 03:
They said the reason that's in the record they say they don't have any space can turn constraints.

[00:02:25] Speaker 04:
Yes, that is that's right.

[00:02:28] Speaker 03:
That's in the right you have it in your brief.

[00:02:30] Speaker 04:
I have it in the brief, but I just want to make a slight distinction.

[00:02:34] Speaker 04:
I'm going to distinguish between attorney arguments and between the what between attorney arguments and what what their clients said.

[00:02:42] Speaker 04:
So when I cite the depositions to say that, they cite the sort of argument that they make or a declaration.

[00:02:50] Speaker 03:
I think they probably cite the depositions.

[00:02:51] Speaker 03:
What about, there's favorable parking concessions now.

[00:02:57] Speaker 03:
Surely that's a space issue.

[00:03:00] Speaker 04:
Sure.

[00:03:00] Speaker 04:
There are six parking spots.

[00:03:01] Speaker 04:
Nobody cares about that.

[00:03:02] Speaker 04:
You know, if you don't get a parking spot, you just don't get a parking spot.

[00:03:05] Speaker 03:
I think they had journalists reserved for the special people, but not for

[00:03:12] Speaker 03:
Yes, sure.

[00:03:13] Speaker 04:
Yeah, they do.

[00:03:14] Speaker 04:
I mean, we wouldn't be here arguing about parking.

[00:03:16] Speaker 04:
Parking is immaterial.

[00:03:17] Speaker 04:
That's just a bonus thing.

[00:03:18] Speaker 04:
You know, they've got six parking spots.

[00:03:19] Speaker 04:
They have 140 people with passes.

[00:03:22] Speaker 04:
I'm guessing not all 140 of them squeeze in there.

[00:03:26] Speaker 04:
And actually, you know, they talk about 140 pass holders.

[00:03:29] Speaker 04:
It's 20 institutions.

[00:03:31] Speaker 04:
This is the entire state of Utah.

[00:03:34] Speaker 04:
They have 20 institutions right now that have credentials.

[00:03:39] Speaker 04:
And we would be 21.

[00:03:41] Speaker 01:
By institutions, you mean traditional paper, newspapers, and television and radio?

[00:03:51] Speaker 04:
And blog.

[00:03:53] Speaker 04:
And a blog.

[00:03:53] Speaker 04:
There's a blog there.

[00:03:54] Speaker 04:
A blog has been recognized.

[00:03:56] Speaker 04:
Yes, there was a blog that was called Building the Salt Lake.

[00:03:59] Speaker 04:
It is self-identified as a blog, and it's actually not even a state policy blog.

[00:04:04] Speaker 04:
It's a blog for urban development.

[00:04:07] Speaker 01:
But I'm looking at the policy that says blogs do not qualify as for a credential.

[00:04:11] Speaker 04:
Yeah, I find that interesting.

[00:04:12] Speaker 01:
Yeah.

[00:04:13] Speaker 01:
OK, so you're saying they did credential a blog contrary to the policy.

[00:04:17] Speaker 04:
That's right.

[00:04:18] Speaker 01:
And have they credentialed an independent media yet?

[00:04:22] Speaker 04:
They credentialed Utah Policy, which utahpolicy.com.

[00:04:30] Speaker 04:
It's out there.

[00:04:30] Speaker 04:
It's basically a news aggregator.

[00:04:33] Speaker 04:
And it runs some pieces that seem to be opinion pieces.

[00:04:37] Speaker 01:
But I assume that would qualify under their interpretation as an independent media.

[00:04:41] Speaker 04:
I think that'd be independent.

[00:04:43] Speaker 04:
And also, it only has one employee who's its editor.

[00:04:46] Speaker 04:
And she's the person.

[00:04:47] Speaker 01:
Is this in the record?

[00:04:48] Speaker 04:
Yes, it's in the record.

[00:04:49] Speaker 01:
All right.

[00:04:49] Speaker 01:
So and Utah Political Watch is one person with a website and a blog.

[00:04:58] Speaker 03:
That's correct.

[00:04:59] Speaker 03:
And another employee.

[00:05:02] Speaker 04:
He has a person who is his wife who serves as an editorial process, a copy editor, not a control editor, a copy editor.

[00:05:12] Speaker 04:
So she does that for him.

[00:05:13] Speaker 04:
And he does long-form journalism.

[00:05:14] Speaker 04:
He does the same work that he's been doing throughout his entire career.

[00:05:17] Speaker 04:
He brings lots of stories.

[00:05:20] Speaker 04:
He interviews the US senators and everything else.

[00:05:22] Speaker 03:
So he's like... You mean he's doing the same thing he did when he worked for the Tribune?

[00:05:26] Speaker 04:
Yes.

[00:05:27] Speaker 03:
Except he doesn't have a publisher.

[00:05:30] Speaker 04:
He doesn't have the other.

[00:05:31] Speaker 04:
He doesn't have that institution behind him.

[00:05:33] Speaker 04:
He's out there on his own.

[00:05:34] Speaker 04:
He does his four to ten thousand views per article that he puts out there.

[00:05:40] Speaker 04:
But he's doing it all on his own.

[00:05:41] Speaker 01:
Is he an LLC?

[00:05:43] Speaker 01:
C-Corporation?

[00:05:44] Speaker 04:
He's an Inc.

[00:05:45] Speaker 04:
He went C-Corp.

[00:05:46] Speaker 04:
I don't know why, but he did.

[00:05:47] Speaker 01:
Is that similar to Citizens United then?

[00:05:51] Speaker 04:
Yeah, yeah, sure, right?

[00:05:52] Speaker 04:
So it's a corporation out there that's doing this.

[00:05:55] Speaker 03:
But his message is all digital, it's not print.

[00:06:01] Speaker 04:
Yeah, that's correct.

[00:06:01] Speaker 04:
I mean, I think lots of things are like that.

[00:06:03] Speaker 04:
I'm just asking a question.

[00:06:05] Speaker 04:
Yeah, no, that's fine.

[00:06:06] Speaker 03:
Yeah, it's digital.

[00:06:08] Speaker 04:
Well, also, you know, he's got the video, but I guess that's digital too, right?

[00:06:12] Speaker 04:
Yeah, so he does that.

[00:06:14] Speaker 04:
And also, I really want to emphasize about the policy.

[00:06:19] Speaker 01:
The reason it's not content neutral is because it's directed at the type of speaker.

[00:06:27] Speaker 01:
Is that the problem here, i.e.

[00:06:29] Speaker 01:
blogs and independent media?

[00:06:31] Speaker 01:
Yes.

[00:06:32] Speaker 01:
And how is that viewpoint discrimination under the cases?

[00:06:38] Speaker 04:
Under the cases, the cases talk about how viewpoint is not limited to political viewpoint.

[00:06:46] Speaker 04:
And it really should be viewed in a very

[00:06:49] Speaker 04:
Broadway.

[00:06:53] Speaker 04:
Basically, the choice of how to repost or edit is something that is viewpoint.

[00:06:58] Speaker 04:
And specifically, I think that the Bellotti case talks about this from the Supreme Court.

[00:07:11] Speaker 04:
It talks about that things should be judged based upon their speech worthiness.

[00:07:17] Speaker 04:
not the message.

[00:07:19] Speaker 04:
If you look at the Lakewood case, there they were regulating the location of newspaper racks.

[00:07:27] Speaker 04:
And that was a term that would be too much discretion that they had.

[00:07:32] Speaker 04:
And so that's part of the argument here with respect to this content.

[00:07:35] Speaker 04:
Because they have this, where they have independent media, some get in, some don't.

[00:07:38] Speaker 04:
One employee, some get in, some don't.

[00:07:40] Speaker 04:
We're really saying that there's a lot of discretion that's there.

[00:07:43] Speaker 04:
And the problem with that discretion is when you get that much discretion,

[00:07:47] Speaker 04:
It creates the ability for there to be prior restraint.

[00:07:52] Speaker 04:
For there to be what?

[00:07:54] Speaker 04:
Prior restraint.

[00:07:55] Speaker 04:
The idea that we don't like this so we're going to not credential them.

[00:07:59] Speaker 03:
I thought you would have said it awakens the tiger viewpoint more so than

[00:08:07] Speaker 03:
Well, that's my point.

[00:08:11] Speaker 04:
It affords them the option then.

[00:08:13] Speaker 04:
They've got the leverage there to say that what they're doing is based upon the policy, but they're really doing viewpoint discrimination.

[00:08:22] Speaker 03:
And is that furthered?

[00:08:26] Speaker 03:
Now, you don't have an equal protection.

[00:08:31] Speaker 03:
I do not have an equal protection.

[00:08:33] Speaker 03:
You're claiming discrimination, but it's not as an equal protection.

[00:08:38] Speaker 03:
No, because the analysis is pretty much the same under equal protection.

[00:08:41] Speaker 03:
So the fact that they allow a blog when they say they're not going to, but they don't allow your blog, stuff like that reflects upon, you say, prior restraint,

[00:09:00] Speaker 03:
in maybe viewpoint.

[00:09:03] Speaker 04:
It's definitely viewpoint, right.

[00:09:05] Speaker 04:
Yeah, so I mean what it's showing is it's showing that they're not following the policy that's going on because they're not following the policy.

[00:09:11] Speaker 04:
It is creating a viewpoint or content based restriction that should be viewed for strict skewed names.

[00:09:16] Speaker 03:
Do we need to know as an evidentiary matter how your client's viewpoint differs from

[00:09:30] Speaker 03:
One of the privileged journalists, or even the blog that's privileged?

[00:09:36] Speaker 03:
Do I have to know what their message is?

[00:09:38] Speaker 03:
I don't think you need to know it because he's been excluded, but I sure provided for caller.

[00:09:44] Speaker 03:
Is there anything in the record that indicates that your client has a particular viewpoint?

[00:09:53] Speaker 03:
I mean, I know he was critical of some staffers.

[00:09:56] Speaker 04:
Well, not just the staffers.

[00:09:58] Speaker 04:
So right before he applied for this, five days before he applied for this pass for 2025, he published a story indicating that the, I think it was the Speaker of the House or President of the Senate, was engaged in unethical behavior as alleged by another entity that filed a complaint.

[00:10:19] Speaker 04:
And he got lit up on X about that.

[00:10:21] Speaker 04:
He got called a former journalist by the Speaker.

[00:10:25] Speaker 04:
I'm sorry, by the president.

[00:10:28] Speaker 04:
And so we see that they have lots of animosity against him.

[00:10:32] Speaker 04:
And to add to it, the defendants in their brief they filed here, they said, well, you know, those are not the only ones.

[00:10:37] Speaker 04:
And they showed you some ex-posts from others, you know, insulting my guy too.

[00:10:42] Speaker 04:
And they're saying, well, look, we didn't take away his credentials back then, you know, earlier in the year when he was still with the Tribune.

[00:10:48] Speaker 04:
But it certainly shows the animosity.

[00:10:50] Speaker 04:
And again, for the policy from 2019,

[00:10:54] Speaker 04:
through 2024, they allowed bloggers and independent media to be there.

[00:10:59] Speaker 04:
They only changed the policy once my guy left, and he was the only one that's been excluded from this.

[00:11:04] Speaker 04:
And they said there's no space constraints.

[00:11:07] Speaker 04:
They admitted in deposition after a very long pause that he's a professional journalist, that he's doing the work covering there.

[00:11:14] Speaker 04:
So he meets all the substantive requirements.

[00:11:17] Speaker 04:
He does journalistic work.

[00:11:18] Speaker 01:
Does he make money from his?

[00:11:20] Speaker 01:
Yeah, absolutely.

[00:11:23] Speaker 04:
He's got subscribers and then he gets the ad share as well from the podcasts and the like.

[00:11:29] Speaker 04:
And then again, you know, he makes enough money that, you know, he makes his living off of this.

[00:11:32] Speaker 04:
And then he's got an insurance policy, you know, so they can be sued for libel.

[00:11:36] Speaker 04:
He's got $2 million worth of coverage.

[00:11:37] Speaker 04:
You know, he's as professional as he gets with this as anybody else.

[00:11:41] Speaker 03:
Did I understand what I thought you said, that when the policy was initiated in 2019,

[00:11:50] Speaker 04:
Yeah.

[00:11:52] Speaker 03:
He was the only one excluded?

[00:11:55] Speaker 03:
Well, so in... So there were a bunch of applicants.

[00:11:59] Speaker 03:
Right.

[00:12:00] Speaker 04:
So in 2025, he was the only person excluded.

[00:12:04] Speaker 03:
You mean there was a gaggle of applicants and all the applicants were authorized and he was the only applicant that wasn't?

[00:12:14] Speaker 03:
That's exactly right.

[00:12:15] Speaker 02:
2025.

[00:12:16] Speaker 02:
What I didn't understand about your argument

[00:12:20] Speaker 02:
before or now is, was he the only blogger that was denied?

[00:12:27] Speaker 02:
In other words, I understand that if he was the only blogger that applied, he was also the only blogger that was automatically disqualified under the policy.

[00:12:36] Speaker 04:
Building Salt Lake was a blog.

[00:12:38] Speaker 02:
Other than building of Salt Lake.

[00:12:39] Speaker 04:
Well, yeah, other than that, yeah.

[00:12:42] Speaker 04:
But there was another publication that was simply one person, or there were two other publications that were one person that were permitted.

[00:12:48] Speaker 04:
Because what they're saying is you need to have an editor, you need to have somebody over you.

[00:12:51] Speaker 04:
But there are two other publications that were like that.

[00:12:56] Speaker 04:
So I've got two minutes left, so I'll say the rest for you.

[00:12:59] Speaker 01:
OK, thank you.

[00:13:10] Speaker 00:
May I please the court?

[00:13:11] Speaker 00:
Daniel Vitaliano for defendants, appellees, the Utah legislative officials.

[00:13:17] Speaker 00:
I want to first make very clear, we're here on appeal from a 12b6 dismissal.

[00:13:22] Speaker 00:
And the court then subsequently denied the preliminary injunction motion as moot.

[00:13:27] Speaker 00:
There's been a lot of talk about evidence in the record.

[00:13:30] Speaker 00:
So first, it's a 12b6.

[00:13:31] Speaker 00:
So we're limited to the allegations in the complaint, documents attached to the complaint.

[00:13:36] Speaker 03:
Let me ask you this.

[00:13:41] Speaker 03:
Mr. Miller said we're in the record that are in the complaint as to him being the only person excluded in 2025 that one bloggers in and he's out sure I can walk you through the allegations of the record so did he led that in the complaint

[00:14:03] Speaker 00:
Either those things at exhibit 12 to the complaint is a list of all the entities that were credentialed for the 2025 session as well as other entities that were not credentialed and their credentials were denied.

[00:14:14] Speaker 00:
He was not the only applicant that was denied for 2025.

[00:14:17] Speaker 00:
There were three others, all for the same reason that they are self-edited.

[00:14:21] Speaker 00:
As to the question of being a blog, at paragraph 69 in the amended complaint, they alleged that Building Salt Lake is a blog, and that cites to Building Salt Lake's website, if you follow that URL, which is incorporated into the complaint, it makes no mention of Building Salt Lake being a blog.

[00:14:39] Speaker 00:
So to the extent that allegation in the complaint contradicts the document that is incorporated in the complaint, the document would control it.

[00:14:44] Speaker 02:
So in other words, if you have an allegation that you would credit and it incorporates a website that is agnostic on the issue, then we should assume, notwithstanding our liberality under 12b6, that because the website was agnostic,

[00:15:08] Speaker 02:
that the allegation in paragraph 69 couldn't possibly be true.

[00:15:12] Speaker 00:
Correct.

[00:15:12] Speaker 00:
It's just an inaccurate quotation that they're quoting the website.

[00:15:17] Speaker 00:
And if you go to the website, it's not quoted as being a blog.

[00:15:20] Speaker 00:
It doesn't say it's a blog.

[00:15:21] Speaker 00:
Does it say it's not a blog?

[00:15:23] Speaker 00:
It doesn't say it's not a blog, but it says nothing about being a blog.

[00:15:26] Speaker 03:
But there's an allegation in the text of the complaint that it is a blog.

[00:15:30] Speaker 00:
Sure, and they allege that it is a blog, but just alleging that it's a blog is conclusory.

[00:15:36] Speaker 03:
You just corrected me in saying we're not on summary judgment.

[00:15:39] Speaker 03:
We're on 12b6.

[00:15:40] Speaker 03:
We're talking about allegations of the complaint.

[00:15:42] Speaker 00:
Yes, but the cited document, the URL website, is incorporated into the complaint.

[00:15:47] Speaker 03:
But the cited document, you say, does not negate the allegation.

[00:15:50] Speaker 03:
It just doesn't necessarily support it.

[00:15:53] Speaker 00:
They're quoting language that it says it's a blog.

[00:15:55] Speaker 00:
That quote does not appear anywhere on the website.

[00:15:58] Speaker 00:
OK, that's our point on that.

[00:15:59] Speaker 00:
And there is specific evidence in the record, Appendix Volume 2, pages 20 to 24, Declaration of Andrea Peterson, that walks through these entities and explains the basis for credentialing entities like Building Salt Lake or other entities that were identified.

[00:16:14] Speaker 00:
And that should be incorporated into the complaint for 12b6?

[00:16:19] Speaker 00:
No, that's in the preliminary injunction record.

[00:16:21] Speaker 02:
Which was only denied based on moodness, right?

[00:16:25] Speaker 00:
Correct, yes.

[00:16:26] Speaker 02:
So on 12b6,

[00:16:28] Speaker 02:
What you just referred to should be out of our minds.

[00:16:31] Speaker 00:
That point about those entities, correct.

[00:16:34] Speaker 00:
Yes.

[00:16:34] Speaker 00:
OK.

[00:16:35] Speaker 00:
But I'd like to state one.

[00:16:35] Speaker 00:
Wait a minute.

[00:16:36] Speaker 03:
Wait a minute.

[00:16:37] Speaker 03:
Wait a minute.

[00:16:38] Speaker 03:
The attachment to the complaint, you said, that lists the ins and the outs.

[00:16:47] Speaker 03:
Does it identify them whether they're blogs or not blogs?

[00:16:50] Speaker 00:
It says that they are self-edited and that's one of the criteria determining whether they qualify as an established reputable news organization under the policy.

[00:16:59] Speaker 03:
My question is, do they say blog?

[00:17:02] Speaker 00:
It does not say blog or not blog.

[00:17:05] Speaker 00:
But I want to take one step back.

[00:17:07] Speaker 00:
It's undisputed that the forum analysis applies to this case and under that three-step framework, questions about

[00:17:14] Speaker 00:
viewpoint discrimination or anything of the sort only come at step three, and that doesn't get reached until plaintiffs satisfy their burden at step one to establish that there is a burden on their First Amendment activity.

[00:17:26] Speaker 00:
Well, are you talking about Smith v. Plotty?

[00:17:29] Speaker 00:
Smith v. Plotty, also the Supreme Court's decisions in Pell, Saxby, and Hutchins.

[00:17:32] Speaker 02:
Well, as I understand it, and you tell me if I'm wrong, your argument about prong one, whether or not it impeded Mr.

[00:17:45] Speaker 02:
His ability to news gather is great.

[00:17:52] Speaker 02:
That's just not what his claim is.

[00:17:54] Speaker 02:
His claim, much like the other discussion we had in the prior case, is that once there is a forum that is provided under the media credentialing policy, that it cannot be viewpoint discriminatory.

[00:18:10] Speaker 00:
Sure, but under Cornelius, the Supreme Court's decisions, decisions of this court, Hawkins that set forth the forum analysis, at step one, the plaintiff has the initial burden to allege an infringement on their activity.

[00:18:23] Speaker 02:
Where does it say infringement?

[00:18:25] Speaker 02:
It says that the activity has to be protected.

[00:18:31] Speaker 02:
Sure.

[00:18:31] Speaker 02:
And that's why in Smith v. Plotty, where the court was dealing with a prohibition against the journalist

[00:18:40] Speaker 02:
being able to gather news made sense at Prom 1 because that was an infringement of a protected activity.

[00:18:50] Speaker 02:
His argument is not that his ability to news gather was being infringed upon, but once there was a protected activity and a forum that was provided by the state for him to exercise that protected activity, it couldn't be viewpoint discriminatory.

[00:19:08] Speaker 00:
His count one of the complaint is pleaded in terms of his First Amendment right to news gather and whether that activity is protected is defined by the Supreme Court in cases like hell and it explains that the First Amendment news gathering right guarantees only access to sources of information that are available to the members to members of the public.

[00:19:26] Speaker 00:
As we set forth in our brief on.

[00:19:29] Speaker 00:
Pages 18 to 20, we explain all the specific information that the plaintiffs are seeking, and all of that is available to members of the public generally.

[00:19:37] Speaker 00:
So the activity that he's seeking to gather that specific information, that's not protected by this memo.

[00:19:44] Speaker 02:
And that's fine, and I think you'll get up in the rebuttal and say that's fine because he never mentions that theory in his briefing.

[00:19:52] Speaker 00:
The district court explained they don't respond to it, they never responded to it.

[00:19:54] Speaker 02:
Right, and I don't think

[00:19:56] Speaker 02:
that were being asked to deal with that hypothetical claim or that he may have presented in this report.

[00:20:02] Speaker 02:
As I understand it, his claim is that if it was viewpoint discriminatory, if, in other words, if he was denied a media credential because of antagonism for his past reporting, then that is a violation of the First Amendment.

[00:20:25] Speaker 00:
For counts 1 and 2, yes, count 3 is a retaliation claim.

[00:20:28] Speaker 00:
So counts 1 and 2 under the forum analysis because they concede it is a limited public forum at amended complaint paragraph 109, page 31 of their brief.

[00:20:36] Speaker 00:
So then the standard is reasonableness and viewpoint neutrality.

[00:20:39] Speaker 00:
There was some discussion before about whether it's content-based or not.

[00:20:42] Speaker 00:
This court's decisions in Brown we cite explain and Supreme Court decisions that

[00:20:47] Speaker 00:
when you're operating in that type of forum, distinctions can be based on content, and that's inescapable.

[00:20:52] Speaker 00:
But they can't be based on viewpoint.

[00:20:54] Speaker 00:
Not viewpoint.

[00:20:54] Speaker 00:
It's viewpoint and reasonableness.

[00:20:56] Speaker 02:
All right.

[00:20:56] Speaker 02:
That's why I want to get to paragraph 116 of the complaint.

[00:21:00] Speaker 02:
Additionally, Schott was considered a professional journalist by defendants since he started receiving credentials over a decade ago.

[00:21:08] Speaker 02:
It was only after he angered defendants with his reporting and started his own publication that defendants suddenly determined Schott was unprofessional.

[00:21:17] Speaker 02:
This shows plaintiffs are being punished based on the viewpoints expressed in Schott and in UPW's reporting.

[00:21:26] Speaker 02:
Since we're here on 12b6 and we're here not on the unqualified ability to newsgather, but based on viewpoint discrimination, why doesn't paragraph 116 suffice at 12b6?

[00:21:44] Speaker 02:
to show viewpoint discrimination?

[00:21:45] Speaker 00:
Sure.

[00:21:45] Speaker 00:
I would point you to exhibit 10 of the amended complaint, which was the letter denying his appeal from the denial of his application.

[00:21:52] Speaker 00:
And it explains that he was previously credentialed when he was working at the Salt Lake Tribune, which has always qualified as an established reputable news organization.

[00:22:01] Speaker 00:
He was fired from the Salt Lake Tribune in the fall of 2024, and this is set forth in that letter explaining that then he started his own organization, Utah Political Watch, and that does not qualify under the policy as an established reputable news organization.

[00:22:15] Speaker 00:
The policy turns more on the organization, not the individual journalist.

[00:22:20] Speaker 02:
according to you, according to him on paragraph 116, and according to his allegation that there was another blog that also would have been disqualified under your media credentialing policy and was allowed a media credential, why doesn't that at least get you past

[00:22:41] Speaker 00:
12b6 because that the initial allegation is squarely contradicted by Exhibit 10 to the complaint explaining that his departure from the Tribune was the reason why he was no longer eligible and that his new Entity did not qualify and and when an exhibit a document is attached to the complaint that trumps any contradictory allegations That's well settled and why is Utah political watch a disreputable?

[00:23:06] Speaker 00:
news organization I wouldn't say it's

[00:23:09] Speaker 00:
Part of it is being established and reputable and the criteria that are considered, and they cite a declaration that was submitted below in the complaint, explains the considerations that legislative officials consider, and that's whether a journalist is subject to editorial oversight, whether there's institutional framework at the entity.

[00:23:30] Speaker 00:
And Utah Political Watch is a self-edited, self-run, one-man operation.

[00:23:35] Speaker 00:
Mr. Schott is not responsible to anybody but himself.

[00:23:38] Speaker 00:
Nobody edits his work.

[00:23:40] Speaker 00:
He alleges that he has Ms.

[00:23:42] Speaker 00:
Morrell as an editor, but he did not disclose that on his application.

[00:23:45] Speaker 01:
His work is absolutely no different than when he was at the Tribune.

[00:23:50] Speaker 00:
He's at a different organization.

[00:23:52] Speaker 01:
The fact that he doesn't have an editor makes his news organization ineligible for this credential.

[00:24:02] Speaker 01:
And credentials may be denied or revoked for any reason.

[00:24:07] Speaker 01:
is a bit of a red flag here, but does not represent an established reputable news organization or publication.

[00:24:14] Speaker 01:
That seems completely standardless and vague.

[00:24:18] Speaker 00:
I would not call that standardness or vague.

[00:24:20] Speaker 00:
It's very similar to the policies that the Seventh Circuit upheld in the Evers case as reasonable and viewpoint neutral, that the criterion there was whether you're a bona fide correspondent of repute in the profession.

[00:24:31] Speaker 00:
It's no different than the DC Circuit policy.

[00:24:34] Speaker 01:
Which he is.

[00:24:35] Speaker 00:
Those policies turn more on the individual journalist, whereas this one turns on the entity.

[00:24:43] Speaker 00:
But I would say the White House credentialing policy employs that same language, and it has always been understood.

[00:24:49] Speaker 01:
And it was struck down.

[00:24:51] Speaker 01:
The White House policy was struck down when it tried to exclude a journalist.

[00:24:58] Speaker 00:
In the AP case, that's separate.

[00:24:59] Speaker 00:
I'm referring to the Adaba case, which is the denial of a hard pass.

[00:25:02] Speaker 00:
And that employed that same criterion, whether you're a bona fide correspondent of repute in your profession.

[00:25:07] Speaker 00:
And that has always been understood to exclude independent journalist bloggers.

[00:25:12] Speaker 00:
That's why we explain

[00:25:13] Speaker 00:
In our briefing, when the White House said it was going to open up the briefing room to independent bloggers, it received 7,400 applications within 24 hours.

[00:25:23] Speaker 00:
Those individuals of social media influencers, citizen journalists, they were never eligible under the White House's policy that was upheld in Adaba.

[00:25:36] Speaker 00:
And more specifically, I would say to the allegations of viewpoint discrimination, I would again point you to the Evers case in the Seventh Circuit attached to the complaint that exhibits 12 and 13.

[00:25:47] Speaker 00:
It gives a list of all the qualifying entities that have been given credentials, and it shows there are journalists and organizations of diverse viewpoints from the Salt Lake Tribune, which is generally regarded as left-leaning, to Deseret News, which is generally regarded as right-leaning.

[00:26:00] Speaker 00:
And the Seventh Circuit in Eger says that that refutes any suggestion that credentials are being distributed based on viewpoint when you have a diverse collection of entities with varying viewpoints.

[00:26:12] Speaker 03:
Wait a minute.

[00:26:17] Speaker 03:
What is it that shows in the filings we can recognize that there's diversity of viewpoints in the crowd that's allowed in?

[00:26:28] Speaker 00:
In the attached to the complaint is a list of all these entities.

[00:26:33] Speaker 03:
And then does it say lefty righty on the attachment?

[00:26:38] Speaker 00:
It does not there.

[00:26:39] Speaker 00:
No, but in the preliminary injunction record, it further explains it.

[00:26:43] Speaker 00:
But this this court can we're still at 12 v 6.

[00:26:47] Speaker 00:
Sure.

[00:26:48] Speaker 00:
Even if the court were to not.

[00:26:51] Speaker 00:
want to make any assumptions about organizations like that.

[00:26:53] Speaker 00:
Exhibit 12 includes all the other entities that were denied, and it gives the reason for it that they are self-edited.

[00:27:00] Speaker 00:
And that explains that the decision to deny Mr. Schott's credential was consistent with other decisions.

[00:27:06] Speaker 01:
There's also an as-applied challenge.

[00:27:09] Speaker 01:
And he makes allegations of animus or retaliation against him for speech that he's engaged in.

[00:27:20] Speaker 01:
What do we do about that?

[00:27:22] Speaker 01:
Doesn't that at least raise an inference that he was denied a credential because of speech that he made that

[00:27:31] Speaker 00:
The government your your clients found sure so there's two separate There's two separate inquiries their first is their counts one and two first and I'm playing then there's the count three which is the retaliation claim I'll start with the retaliation claim the district court applied this court's decisions in Smithy ploddy and sheer over City of Grove my friend on the other side they do not cite that in their brief for the two paragraphs they address the retaliation claim and

[00:27:55] Speaker 00:
on pages 38 and 39, they simply don't address those.

[00:27:58] Speaker 00:
And those explain that, you know, not receiving a credential would be, it's a de minimis injury, it's not cognizable, it wouldn't shill a person of ordinary firmness.

[00:28:06] Speaker 00:
And in Smith v. Plotty, the court looked to whether alternative avenues of information were available.

[00:28:10] Speaker 00:
And as we explained, all of that's still available.

[00:28:13] Speaker 00:
It also looked to whether the decision in any way prevented the individual from speaking out or maintaining a website.

[00:28:20] Speaker 00:
Mr. Schott has continued to maintain his website even without a credential.

[00:28:24] Speaker 00:
So that's on the retaliation claim, on the claim subject to the forum analysis.

[00:28:29] Speaker 00:
Mr. Schott merely alleges just temporal proximity, and this court's decisions entrap.

[00:28:34] Speaker 00:
And Vadair explained that that's not enough.

[00:28:38] Speaker 00:
I would say, and it's also the fact that Mr. Schott received a credential every year until he left the Tribune.

[00:28:45] Speaker 00:
And even while he was at the Tribune,

[00:28:49] Speaker 00:
publishing content that would already be critical of the legislature.

[00:28:53] Speaker 00:
He continued to receive a credential year over year.

[00:28:55] Speaker 01:
Right, but here you have statements by the credentialing authority that he's been unethical and, you know, he's no damn good any longer since he left the Tribune.

[00:29:04] Speaker 01:
I mean, isn't that raise a plausible inference of... I would say no.

[00:29:09] Speaker 00:
So that incident that you're referring to in the text exchange with Ms.

[00:29:12] Speaker 00:
Peterson, that, as the district court explained in the transcript denying a TRO, that post stated

[00:29:17] Speaker 00:
the revision of the policy, which occurred in November.

[00:29:21] Speaker 00:
That was in mid-December.

[00:29:22] Speaker 00:
So that could have no bearing on whether Mr. Schott then qualified under the criteria.

[00:29:30] Speaker 00:
He complains about the revision to fully exclude blogs and independent media.

[00:29:35] Speaker 00:
And the evolution of the policy over time shows that nothing was done here to target Mr. Schott.

[00:29:40] Speaker 00:
In 2021 and 2022, there was a loophole where bloggers or independent journalists could be qualified under some circumstances.

[00:29:49] Speaker 00:
In 23 and 2024, it was then narrowed to rare, limited rare circumstances.

[00:29:55] Speaker 00:
And then it was then changed to close that loophole and not allow for it at all.

[00:30:00] Speaker 00:
And the reasons given for it is because there has been a large uptick in inquiries.

[00:30:04] Speaker 00:
And it was explained in a declaration, but Mr. Schott cites this in the complaint.

[00:30:10] Speaker 00:
It's at paragraph 36 of the amended complaint.

[00:30:13] Speaker 00:
It explains that the reason for this revision is because the legislative officials have been receiving increased inquiries from bloggers, independent media, social media journalists.

[00:30:23] Speaker 00:
And they wanted to eliminate any sort of discretion and make a fine black and white line of who qualified and who did not.

[00:30:30] Speaker 01:
Thank you.

[00:30:31] Speaker 01:
Time's expired.

[00:30:33] Speaker 01:
Mr. Miller, you have some rebuttal time.

[00:30:35] Speaker 01:
Thank you.

[00:30:36] Speaker 01:
Thank you.

[00:30:37] Speaker 04:
Thank you, Your Honor.

[00:30:38] Speaker 04:
Just to clean up some of this factor stuff first.

[00:30:42] Speaker 04:
On page 15 of the brief, we cite to the parts of the deposition transcripts where they admit that there were no space constraints.

[00:30:50] Speaker 04:
We also made an allegation in the complaint.

[00:30:53] Speaker 04:
On page 17 of the brief, we have the long quotes from Mr. Schott explaining how he's injured by being excluded.

[00:31:00] Speaker 04:
It's not de minimis.

[00:31:02] Speaker 04:
With respect to building Salt Lake, in paragraph 69 of the complaint, we state that the

[00:31:09] Speaker 04:
Building Salt Lake website described itself as locally owned independent media and tells that Building Salt Lake is a nationally recognized top 100 urban planning blog on the About page.

[00:31:21] Speaker 04:
It's probably been changed since then, but that's what it said at the time.

[00:31:25] Speaker 04:
So those are allegations that were there in the complaint.

[00:31:28] Speaker 04:
With respect to the other people being excluded in 2025, the list that is on the complaint on page 92 of the appendix, that's a list that is from all five years.

[00:31:46] Speaker 04:
And they intentionally did not put dates on there.

[00:31:48] Speaker 04:
We asked them about it in the deposition.

[00:31:56] Speaker 04:
It was asked if anyone from that list or if anyone other than Schott was excluded in 2025.

[00:32:02] Speaker 04:
And on page, Appendix Volume 4, page 28, they state that they do not remember anyone else being excluded in 2025, but they did ask more questions of building Salt Lake.

[00:32:14] Speaker 04:
How do we deal with that when we're on 12-B-6?

[00:32:17] Speaker 04:
Well, with respect to 12b6, just look at the complaint, because we allege all these things in the complaint and the attached declaration.

[00:32:23] Speaker 04:
So it's all there for those purposes.

[00:32:25] Speaker 04:
I'm just clarifying that we were very careful about doing that.

[00:32:29] Speaker 04:
With respect to the argument that was being made that Mr. Schott can just go and get his sources elsewhere, copy off other media, or he can listen to the audio transcript, which as you know from these things are not always that good.

[00:32:47] Speaker 04:
With respect to that, going to other sources, in those opinions, they say unless there was content discrimination or viewpoint discrimination.

[00:32:57] Speaker 04:
When that occurs, there's no substitute that's okay.

[00:33:00] Speaker 04:
Any even diminished injury is the first injury that deserves to be rectified.

[00:33:07] Speaker 04:
We've requested that the court also order that there be an injunction put on.

[00:33:12] Speaker 04:
This is two years now that Mr. Schott has missed the general session.

[00:33:15] Speaker 04:
There are special sessions that are going to come up.

[00:33:20] Speaker 04:
We've established more than enough here to indicate that he was the only one excluded because of his viewpoint.

[00:33:29] Speaker 04:
And their statement that you just need to have a supervisor, someone who can fire you, just doesn't make sense.

[00:33:35] Speaker 04:
That doesn't even hold up as a rational basis for a policy.

[00:33:39] Speaker 04:
You only have First Amendment rights.

[00:33:41] Speaker 04:
If we can go and jawbone your supervisor and they can discipline you, there's no government.

[00:33:46] Speaker 01:
Is the General Assembly done for the year?

[00:33:50] Speaker 01:
Are they still in session?

[00:33:52] Speaker 01:
They just completed their normal session.

[00:33:55] Speaker 01:
Has there been any announced special session yet?

[00:33:59] Speaker 04:
My understanding is that there have been indications that there will be special sessions, but there's not been a timing of those that have been announced yet.

[00:34:06] Speaker 01:
So, in effect, your request for injunction's really been mooted by the denial of the stay and the passage of time.

[00:34:13] Speaker 01:
If there's another legislative session, I guess you can...

[00:34:19] Speaker 04:
No, Your Honor, because what we're requesting is that they be enjoined from denying Mr. Schott the credentials for these reasons.

[00:34:29] Speaker 04:
It's not letting him in.

[00:34:30] Speaker 04:
It's giving him the credentials.

[00:34:31] Speaker 04:
And a lot of times, these special sessions are announced on very short order.

[00:34:35] Speaker 04:
And there's no reason to make us come back in emergency posture for this.

[00:34:41] Speaker 04:
We've tried this, and it just takes too long.

[00:34:43] Speaker 04:
When a session is announced, and they have it a couple of days, and then it's just gone.

[00:34:46] Speaker 04:
These are very ephemeral.

[00:34:48] Speaker 01:
I think we understand your argument on your time.

[00:34:50] Speaker 03:
There was some something I picked up on that at the governor's news conferences.

[00:34:58] Speaker 03:
that the executive branch adopts the same list or whatsoever.

[00:35:04] Speaker 03:
Is that in the complaint or in a deposition or something else?

[00:35:08] Speaker 04:
I think that we have that in the complaint as well.

[00:35:11] Speaker 04:
We allege it there.

[00:35:11] Speaker 04:
So I think the governor's news conferences happen there, and they rely upon the legislative process.

[00:35:18] Speaker 03:
My question is, is there anything in the complaint about that?

[00:35:21] Speaker 01:
Yes.

[00:35:23] Speaker 01:
OK.

[00:35:24] Speaker 01:
Thank you.

[00:35:24] Speaker 01:
Thank you, Counselor.

[00:35:25] Speaker 01:
Excuse, the case shall be submitted.

[00:35:27] Speaker 01:
And the court is in recess until tomorrow morning at 9 o'clock.