Johnson v. Malcolm

Background

Scott W. Johnson brought a First Amendment claim under 42 U.S.C. § 1983 against Jan Malcolm, the Commissioner of the Minnesota Department of Health, and Michael Schommer, an employee of that Department. He sued both officials in their official and individual capacities and sought declaratory and injunctive relief.

The Minnesota Department of Health held daily COVID-19 briefings that were streamed and broadcast to the public. The Department also operated a conference line that allowed certain journalists to listen and ask questions of the officials participating in the briefings. The Department used criteria for media lists that included whether a journalist worked for a professional media outlet, provided regular content, had an editorial review process, and was associated with multiple staff members and a newsroom.

Johnson, who described himself as a journalist, received access to the conference line on April 10, 2020. He participated in the briefings and published the Department’s answers to his questions on the Power Line website. After Johnson sent two questions following an April 27 briefing, Schommer forwarded them to officials in the executive branch. The Department then stopped providing Johnson access to the conference line. Johnson alleged that the defendants acted because of the viewpoint or content of his questions and related commentary. The defendants maintained that Johnson was excluded because the Department wanted to prioritize reporters from major media organizations and that he continued to have real-time access to the briefings through broadcasts by media organizations.

Motion to Dismiss

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. They argued that Johnson had no First Amendment right to access the Commissioner or ask questions and that denying a journalist access did not support a constitutional claim, even if the denial were retaliatory.

Johnson argued that the conference line was a limited public forum. A limited public forum is a government-created space opened for certain types of speakers or expression, where restrictions generally must be reasonable and viewpoint neutral. The court accepted Johnson’s allegations as true for purposes of the motion and found that he had adequately alleged that the Department created such a forum for journalists to ask questions at the briefings.

The court also found that Johnson adequately alleged that his access was revoked because of his viewpoint or the content of his questions. The court stated that these allegations were sufficient at the pleading stage to allege a First Amendment violation. It therefore denied the defendants’ motion to dismiss, including their request to dismiss the individual-capacity claims. The court did not decide the ultimate merits of Johnson’s First Amendment claim.

Preliminary Injunction

Johnson separately sought a preliminary injunction requiring the defendants to restore his access to the conference line and give him the opportunity to ask questions. A preliminary injunction is an extraordinary temporary order issued before final judgment. The court considered whether Johnson was likely to suffer irreparable harm, meaning harm that could not be fully remedied through an award of damages or other later relief, along with the other required factors.

The court concluded that Johnson had not shown a likelihood of irreparable harm. The briefings were broadcast live by several media organizations, giving Johnson real-time access to the updates. The parties also agreed that the Commissioner was not required to take or answer questions, and the court noted that there was no evidence that Johnson’s reporting had been chilled by his exclusion from the conference line. Based on the lack of demonstrated irreparable harm, the court denied Johnson’s motion for a preliminary injunction.

Disposition

The court denied the defendants’ motion to dismiss and denied Johnson’s motion for a preliminary injunction. The opinion described the issue as a close one and noted that the ruling did not resolve the ultimate merits of the First Amendment claim.