Conservative Group Loses Suit Against Evers

The MacIver Institute was founded in 2008 as an avowedly ideological organization, named for the late John MacIver, a longtime Republican attorney. It describes itself as “a Wisconsin-based think tank that promotes free markets, individual freedom, personal responsibility and limited government.”

In 2011, the MacIver Institute and Americans for Prosperity purchased more than $500,000 worth of television ads in Wisconsin supporting the budget proposals of then-Gov. Scott Walker. MacIver has gotten funding from the Koch Institute, Bradley Foundation and other conservative groups and takes a hard-edged rightwing stance on the issues. The watchdog group Source Watch lists numerous examples of questionable actions by the group, from former TV reporter Bill Osmulski obtaining interviews with two elected Wisconsin officials under false pretenses by failing to disclose his affiliation with MacIver to claims by the group that the September 2020 COVID-19 spike was the result of “bad math.”

While the group has an arm it calls the MacIver News Service, the stories are clearly done to help the Republican Party and further MacIver’s ideological goals.

In 2019, the group sued Gov. Tony Evers, claiming the Democratic governor had specifically excluded MacIver’s reporters — notably, Osmulski, the news director for the MacIver Insitute — because of the group’s political affiliation.

In March 2020, U.S. District Judge James Peterson wrote an opinion rejecting the suit and finding that Ever’s staff had excluded MacIver based on its media access policy, which limits access to “organizations whose principal business is news dissemination.”

“Evers has reasonably concluded that MacIver is not a bona fide news organization,” Peterson wrote. “MacIver publicly brands itself as a think tank committed to ideological principles. It engages in policy-driven political advocacy, including advocating for specific initiatives and policy approaches. It has a “news” tab on its website, but it does not maintain a news-gathering organization separate from its overall ideological mission.”

MacIver’s lawyers appealed the decision, and lost unanimously, with all three judges in the Seventh District Federal Circuit Court ruling in favor of Evers in an April 9 decision. U.S. Circuit Judge Ilana D. Rovner wrote the decision, concluding that the governor’s media access policy used a neutral criteria, and that MacIver had failed to provide evidence the Governor’s office had used the policy in a discriminatory manner.

“The protections of the First Amendment extend not just to the traditional press embodied by newspapers, television, books, and magazines, ‘but also humble leaflets and circulars,’ which were meant to play an important role in the discussion of public affairs,” Rovner wrote. “Protecting the right of small, upstart, and non-objective media producers, however, does not mean that the Governor of Wisconsin must grant every media outlet access to every press conference. We cannot fathom the chaos that might ensue if every gubernatorial press event had to be open to any ‘qualified’ journalist with only the most narrowly drawn restrictions on who might be excluded. And no one’s needs would be served if the government were required to allow access to everyone or no one at all.”

Rovner was a Republican appointee to the bench, first by President Ronald Reagan to the federal district court and later promoted to the circuit court by President George H.W. Bush.