Chicago Mayor Lori Lightfoot recently announced an initiative to encourage Chicago news outlets to be more diverse, but her approach may raise some constitutional issues.
In a May 19th, 2021 letter, Lightfoot wrote that as of her second anniversary as Mayor, she will only be providing one-on-one interviews to journalists of color.
From the letter, it appears the mayor intended to push Chicago media outlets to look inward and see if their own institutions supported and cultivated diversity. The mayor also made it clear that diversity in the press corps is fundamental to democracy. As she wrote, “[t]he press corps is the filter through which much of what we do in government is dissected and explained to the public,” and it is “essential for a healthy democratic society and an accountable government.” But due to the lack of diversity in the systems of the press corps, “this arm of our democratic system is on life support.”
Given our polarized political world, it’s not surprising that some journalists were less than excited about this announcement. Just over a week later, reporter Thomas Catenacci — who is white — filed suit against Lightfoot in her official capacity. The complaint, filed by Catenacci and his employer, the Daily Caller News Foundation, alleges that Mayor Lightfoot’s decision violated Catenacci’s First and Fourteenth Amendment rights.
In the complaint, Catenacci alleges that since making the announcement, Mayor Lightfoot has granted at least one interview request from a “self-identified Latino reporter,” while denying or failing to respond to interview requests from white reporters. According to the complaint, Catenacci himself requested an interview on May 20th regarding the vaccination effort in Chicago, but never received a reply. He followed up by email on the 21st and 24th, but never heard back from the Mayor’s office.
Catenacci argues that this denial of his request for an interview prevents him from “newsgathering” and “allowing citizens to see, examine, and be informed of their government,” in violation of the First Amendment. He also claims that Mayor Lightfoot’s decision discriminated against Catenacci because of his race, and thus deprived him of his right to equal protection under the Fourteenth Amendment.
Catenacci and the DCFN quote a recent, similar case where a public official limited access to certain press events. In that case, a media organization was not invited to participate in certain press events held by Wisconsin Governor Tony Evers. The plaintiffs in this case probably hope that their case turns out a little differently. In the case against Governor Evers, the Seventh Circuit found for Evers, holding that the limited press events were nonpublic fora, and therefore the rationale for the decision to restrict access need only be reasonable.
If the court follows the holding in the Seventh Circuit (where this court sits), and a one-on-one interview with Lightfoot is considered a non-public forum, it will be interesting to see if the court accepts Lightfoot’s decision as reasonable. Given that the type of media interaction is limited to one type of interview with one official, and the explicitly stated reason of supporting diversity in the press corps of Chicago, the groundwork has been laid for a court to accept it as reasonable, but we will have to wait and see.
The Equal Protection claim differs from the Evers’ case. In that case, the stated reason for excluding some journalists was that they did not meet certain content-neutral requirements. Here, however, Lightfoot’s stated basis is the reporter’s race. Even if the court denies the First Amendment claim on the reasoning above, Lightfoot and her lawyers may have a slightly tougher time against this Equal Protection claim.
This Chicago case is in its infancy, but it will be worth watching.
Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues; He can be reached at jgreiner@graydon.law.