After years of legal wrangling over press freedoms and the public’s right to know, the Santa Fe Reporter is set to finally have its day in state District Court at the end of this month.
At the heart of the case: Is it a violation of the paper's free expression rights under the state Constitution if Gov. Susana Martinez blacklists SFR for critical coverage?
Martinez' press secretary refused to comment on pending litigation. And the governor's high-powered private attorney, Paul Kennedy, says he's "not authorized to comment on this matter."
Katherine Murray, one of the lawyers representing SFR, says the tensions rising nationally between President Donald Trump and the press highlight the dangers of government officials playing favorites. "To a certain extent, when you choose the messenger, you're also getting to shape the message," she says. "We need our press to be unpopular, to pursue the topics nobody wants to talk about."
The case already has made some history, Murray says. Laws on the books are one thing, but until they're tested in court, how they work can remain a mystery. Freedom of the press is protected under New Mexico's Constitution, she says, but a paper's right to access public information without facing discrimination is a novel issue for New Mexico courts.
The three-day bench trial is slated for March 29-31 before District Court Judge Sarah Singleton in Santa Fe. (Court dates scheduled for last November were vacated when Murray had to travel unexpectedly to receive her adopted son.) Martinez is not scheduled to testify, although several of her current and former staffers are. SFR journalists past and present also are expected to take the stand.
When reporter Joey Peters came to SFR from Washington, DC, he was surprised at how difficult it was to reach anyone at the governor's office. "Responsiveness was better from the federal government," he says. Peters remembers writing in emails to the governor's spokesman, "Get back to me ASAP," a naive turn of phrase that makes him laugh today. "I came in expecting that spokespeople for government agencies would contact you back."
In 2012, SFR documented the unfolding story of Martinez' leaked emails, the inner-workings of her administration and public business conducted on private email accounts. In December, the paper published a cover story headlined "The Year in Closed Government," digging into those emails and juxtaposing them against the governor's promise to run the most transparent administration in state history.
"After that, I think they just cut us off and wouldn't respond to us at all, not even emails or anything," says Peters, now a reporter for New Mexico Political Report.
In the absence of direct communication, SFR increased its reliance on public records requests, Murray says. That also proved fruitless, and the paper contends the administration repeatedly violated the state's Inspection of Public Records Act (IPRA)—New Mexico's sunshine law that allows everyone access to documents and other records.
So in the fall of 2013, SFR sued. Murray says the serial IPRA violations created an either/or scenario: "Either this is a deliberate withholding of information that the governor's office thinks is potentially politically embarrassing, or something about the way they handle IPRA requests is just flawed and results in us not getting the public records."
After rulings from Singleton on some of the issues in the original court filing, claims stemming from five alleged IPRA violations will be contested at trial.
Kennedy wrote in a brief that the state's public records law is an "unfunded mandate" that's hard on the state's limited resources.
The lawsuit also says the governor's office interfered with a free press by stonewalling SFR. The paper's reporters weren't receiving even basic information the administration was providing to other news organizations. It was retaliatory "viewpoint discrimination," according to the lawsuit, and it happened because the governor's office didn't like the tone and content of the paper's coverage.
The lawsuit doesn't say the governor has to give a sit-down interview to every paper that wants one or offer comment on every single issue. But that decision has to be based on the issue at hand, Murray says, not whether the news organization seeking comment covers the governor in a favorable light.
Kennedy also argues that evidence shows it wasn't viewpoint discrimination when the governor's office didn't respond to SFR, and that the paper isn't the same thing as the Associated Press or the Albuquerque Journal. It has a smaller staff and it doesn't distribute breaking news, he wrote.
But Murray will tell you this lawsuit gets at the heart of the media's role in a democracy, and SFR brought it not just to ensure the paper's own rights, but because the ability to gather and report news is essential to a free press.
"I certainly don't want the Washington Post or the New York Times to start being gentler on President Trump because they just want access to the room," she says. "That doesn't benefit any of us."
Problems like this don't often get to the lawsuit stage, which can be expensive and time-consuming, according to Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press in Washington, DC. "So often reporters just feel kind of helpless when they're confronted by something like this," he says, "so it's good to see that somebody's really pushing for their rights."
Marisa Demarco is covering the trial jointly for KUNM radio and SFR as an independent journalist. Contributing editor Jeff Proctor is supervising her coverage for SFR, including planned daily reports from the courtroom that will be published at SFReporter.com.