July 11, 2012

SCOTUSblog has gotten widespread attention in recent weeks for its accurate and detailed coverage of the Supreme Court’s ruling on the Affordable Care Act and the mistakes CNN and Fox News made while covering it.

Despite high reach and widespread use, SCOTUSblog it’s still not credentialed by the Court — and probably won’t be anytime soon. The issue renews attention to the limitations of press credentialing and raises important questions about whether the credentialing criteria for news sites needs to change.

Obtaining Court, White House and congressional credentials

SCOTUSblog reporter Lyle Denniston, who’s been referred to as an “icon of the Supreme Court press corps,” has a Court credential — but only because he also files reports for WBUR in Boston.

“We’ve raised the issue several times over the years, going back at least to the point Lyle started with us” in 2004, said SCOTUSblog Publisher Tom Goldstein in an email. “Right now, the Court tries to accommodate us by allowing Lyle to keep his hard pass from WBUR. But we can’t send anyone else into the press area to report on cases that Lyle isn’t covering for us.”

Credentialing will become a bigger problem when Denniston, who has been covering the Court for 54 years, retires someday; the blog wouldn’t be able to obtain the same kind of information and access that it now gets through him.

Even though the Court hasn’t credentialed SCOTUSblog, its staffers nevertheless use the blog. “We know both that the blog is widely used inside the Court (from our usage data) and that they suggest people use the blog to get information,” Goldstein said. On the day of the Supreme Court’s ruling on the Affordable Care Act, the site got 5.3 million page views — compared to the 30,000 daily visitors it usually gets.

Getting credentialed is a complicated process. Kathleen Arberg, public information officer at the Supreme Court, explained that only 26 journalists have permanent Court credentials, which enable them to come and go from the pressroom and the courtroom without having to get a new pass each day. Others get temporary day passes.

“To be considered for obtaining any credential at the Court we require an active press credential. We recognize White House and Congressional credentials as identification, which most reporters in town have,” Arberg told me.

SCOTUSblog doesn’t have White House or congressional credentials. To get a White House hard pass, which credentials journalists on an ongoing basis, a journalist must have congressional credentialing.

“Without clearing that first hurdle, they can’t get a White House pass,” said Don Gonyea, NPR correspondent and treasurer of the White House Correspondents’ Association. “I think it’s just one step to screen people out to make sure they’re serious.”

The problem is, congressional credentialing can be extremely hard for some sites to get.

Obstacles to getting congressional credentialing

The Senate Press Gallery issues congressional credentials and has very specific (and different) criteria for photographers, daily press, periodicals and TV and radio.

Goldstein said SCOTUSblog staff talked with the Senate Press Gallery a few years ago to see if the blog could get daily press credentials. “We were told by the Senate Gallery there is no point in [formally] applying,” said Goldstein, who co-founded the blog with his wife Amy Howe in 2002. He noted that the site still hasn’t applied for credentialing.

There are various reasons a news organization might not qualify for congressional credentialing.

Goldstein said his understanding from staff conversations with the Senate Press Gallery was that SCOTUSblog wouldn’t qualify because it doesn’t have broad-based advertising. It does, however, have a sponsor — Bloomberg Law. Advertising has come up as a credentialing issue in the past: Laura McGann wrote last year that the nonprofit site she used to edit — The Washington Independent — didn’t get congressional credentialing because it “was not chiefly supported by subscriptions or advertising.”

But in this case advertising may not be the issue. Senate Press Gallery Director Joe Keenan said the committee that oversees credentialing found in June 2010 that SCOTUSblog “failed to show that they were separate from the law firm.” Goldstein and Howe are both practicing lawyers who argue cases before the Supreme Court, and lawyers at their firm have written for their site.

The Senate Press Gallery’s criteria for daily press states that “The applicant must reside in the Washington, D.C., area, and must not be engaged in any lobbying or paid advocacy, advertising, publicity or promotion work for any individual, political party, corporation, organization, or agency of the U.S. government, or in prosecuting any claim before Congress or any federal government department, and will not do so while a member of the Daily Press Galleries.”

Keenan said SCOTUSblog is welcome to apply for credentialing, but noted that “if a practicing lawyer applied to us, there is almost no way they would be credentialed.” This isn’t to say, though, that all practicing lawyers and the sites they run are automatically disqualified. “We would figure out how they operate, how they get their money and whether the publication is a separate entity,” Keenan said. “And several other rules would come into play.”

Goldstein said he doesn’t see why working for a law firm would be an issue in SCOTUSblog’s case.

“That wouldn’t make any sense as applied to us, because we don’t do any lobbying work,” he said. “It certainly wasn’t my understanding, because if that had been told to me, I would have just said it wasn’t true.”

When credentialing daily press, the Gallery takes both a journalist and her publication into consideration. But a journalist can be indirectly penalized if her site doesn’t qualify for credentialing. “We wouldn’t credential them if the publication doesn’t qualify, and they work for the publication,” Keenan said.

So, if Denniston were to retire from WBUR, he would lose his credential, and since SCOTUSblog is uncredentialed, he would lose his Supreme Court access. If Denniston were simply unavailable to cover the Supreme Court for any reason, SCOTUSblog would not have access without him.

Goldstein told Forbes earlier this week that: “If we were ever to find ourselves without a credentialed reporter, then we would sue, if the Court was still unwilling to change its position.”

Modifying the credentialing process for Fifth Estaters

According to Keenan, the credentialing criteria for daily publications was last updated in 2002. Before that, the rules had been the same since around 1954. “As things change … we keep trying to evolve,” Keenan said. Some blogs have been credentialed in recent years, including The Huffington Post, Talking Points Memo and The Daily Caller.

As the Fifth Estate grows, it wouldn’t be surprising if more practicing lawyers were to start news sites like SCOTUSblog. Ideally, the Senate Press Gallery would consider re-evaluating its criteria and credential such sites that have a track record of good ethics and quality journalism, as SCOTUSblog has.

In his piece about mistakes that CNN and Fox News made while covering the Court’s recent ruling, Goldstein described SCOTUSblog’s role journalism’s future: “I feel that we showed that a specialized ‘vertical’ — a deep team with focused expertise — can contribute to reporting.”

That’s true. But for now, that’s unfortunately not enough to get credentialed.

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As managing editor of The Poynter Institute’s website, Poynter.org, I report on the media news industry, edit the site’s How To section, and moderate the…
Mallary Jean Tenore

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