AUSTIN, Texas — The Texas Third Circuit Court of Appeals, Austin Division, has dismissed a lawsuit by AgendaWise, Inc., a conservative media outlet that sued several Texas government officials when their capitol press pass application was denied, Breitbart Texas has learned.
The court’s decision is the latest development in an ongoing struggle between Texas politicians and the press — especially the online and other new media outlets — that has been unfolding over the past few years. As Breitbart Texas reported back in September, neither the Texas House Rules nor the official Media Credential Application specifically provide for online media outlets, but media credentials have been issued to online journalists during past sessions, including the liberal Texas Observer.
However, when AgendaWise applied for media credentials, they were denied each time. Additionally, The Texas Tribune had contracted for server space in the Capitol server closets to live stream audio and video from the Legislature, including State Senator Wendy Davis’ highly-viewed filibuster of the abortion bill, but when AgendaWise requested this same access, they were denied. Last fall, AgendaWise sued Lieutenant Governor David Dewhurst, Straus, Senate Committee on Administration Chairman Kevin Eltife, and Committee on House Administration Chairman Charlie Geren, in Travis County Court over the denial of the media credentials and seeking access to the server closet.
In ruling to dismiss the case, the court essentially called it an issue of timing: media passes granted during the 2013-2014 legislative session are essentially moot at this late date, because the regular session has ended and no additional special sessions are expected before the next session begins in January 2015. AgendaWise had countered that even when there was not an active session, capitol media credentials still allowed increased access to committee hearings. Moreover, argued AgendaWise, even if the issue was moot regarding the 2013-2014 session, it was an issue that was “capable of repetition yet evading review,” which is a legal exception to the mootness doctrine. The court did not find these arguments persuasive and ruled against AgendaWise.
Regarding the upcoming 2015-2016 session, the court ruled that AgendaWise’s claim was not yet “ripe,” — in other words, it was too early to bring that particular legal claim — because there was still time for AgendaWise to apply for media credentials for the upcoming session and they had not yet been denied.
The claim seeking access to the Capitol server closet was also rejected, because the Tribune’s equipment had been removed and the House Business Office had announced that the Legislature itself would be responsible for streaming video, having sufficiently upgraded their equipment so as to be able to handle an unlimited number of viewers.
Breitbart Texas spoke to Tribune Editor-in-Chief Evan Smith and Executive Editor Ross Ramsey, and they said that the court filings contained several inaccuracies. First, the Tribune did not ask for and did not have an exclusive contract to stream video from the Legislature. AT&T and Time Warner Cable also had their equipment in the Capitol server closet and provided the content to their paid subscribers. The Tribune, on the other hand, provided their content free to everyone, including competing media outlets.
Additionally, Smith and Ramsey said that the court’s opinion was not accurate regarding why the Tribune’sequipment was removed. According to them, the Tribune had to pay rental fees for their equipment and there was little use in paying for the equipment when the Legislature was not in session and there was nothing to livestream. The Tribune removed their equipment voluntarily. This is a separate issue from the Tribune’scontract with the Legislature, which has been renewed in two-year terms. The current term is set to expire this month, and, contrary to the statement in the court’s opinion, the Tribune may be able to renew it. They have been in talks with the House Business Office to discuss possibly renewing the contract for the upcoming Legislative Session.
Weston Hicks, the Lead Writer at AgendaWise, told Breitbart Texas that they have not yet determined whether they will appeal the court’s decision, which he described as something that was “not decisive but it is disappointing.”
He added, “Texans have reshuffled their government and we’ll have another chance at this soon. The most disappointing thing in all of this is that House leadership has made media access and credentialing into a political weapon. Texas has a bona fide case of Obama Administration tactics where they don’t belong.”
Hicks confirmed to Breitbart Texas that AgendaWise did intend to apply for media credentials again for the upcoming 2015 session. That application may be subject to a new set of rules for this session, however. The House Administration Committee, which is responsible for overseeing press credentialing for the Capitol, will hold a public hearing on December 4th to discuss potential changes in the application procedures and qualifications. The House Administration Committee is chaired by Representative Charlie Geren, an ally of Speaker Joe Straus, who appointed Geren to that position and was one of the defendants named in AgendaWise’s lawsuit.
This article has been updated with additional information from an interview with Evan Smith and Ross Ramsey at the Texas Tribune.
*This article has been updated since its publishing
Follow Sarah Rumpf on Twitter @rumpfshaker
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