Journalists covering the special session of the Alaska Legislature later this month will have their credentials automatically revoked if they try to take photographs anywhere on the Capitol grounds during a medical emergency, based on a new rule released last week that could be unconstitutional.
The rule expands a ban on the use of cameras and recording equipment previously confined to the floor of the House and Senate, following an incident earlier this year when Rep. Craig Johnson, R-Anchorage, temporarily revoked the press credentials of a reporter and photographer, Jeremy Hsieh and Skip Gray of Gavel Alaska, the public access television service that broadcasts legislative activity.
Gray was trying to take pictures of a stricken state representative as he was being transferred into an ambulance outside the Capitol building.
Johnson chairs the House Rules Committee and issues the press rules along with Sen. Charlie Huggins, R-Wasilla. In a phone interview Monday, Johnson said the expanded rules were needed to assure adequate access to the building by medical professionals, and he accused Hsieh and Gray of impeding medical care for Rep. Ben Nageak, D-Barrow.
"There were people in the press that were actually preventing and standing in the way," Johnson said. "We tried to move them out and they said, 'We have the right to be here.'"
Johnson added: "We want to be able to clear the halls and get everybody out."
Hsieh, in a phone interview Monday, said Johnson's recollection didn't sound right.
"I don't think we were asked to move by first responders," he said. "I don't think we'd have any problem getting physically out of the way for that reason — you don't walk between the firefighter and the fire."
He and Gray, Hsieh added, were trying to document an event that was clearly newsworthy, and he said there was no guarantee the photographs would have been published.
"We capture the photos, but that doesn't mean we have to publish them. We can make the taste call later," Hsieh said. "We're Gavel Alaska, we're not exactly a tabloid — we do exercise good taste and considerations."
Gray declined to comment.
The rule set out by Johnson and Huggins is strict and comes with swift consequences for violations.
"When there is a medical emergency on the Capitol complex premises, cameras and sound equipment are to be turned off and remain off until instructed otherwise. During emergencies everyone is to remain still unless given instructions to vacate the area," the rule says. "There will be no warning given for a breach of this rule. Any violation of this rule will result in immediate and automatic revocation of the violating member's press pass."
It's unlikely either the pre-existing rule — limited to the floor of the House and Senate — or the expanded rule would survive legal scrutiny, said Mary-Rose Papandrea, a professor at the University of North Carolina School of Law and a First Amendment expert.
"It sounds very problematic," she said in a phone interview Monday.
A court, she said, would consider the rule a question of public access, not press access. The way that access is determined is based on the tradition of access, and the benefits provided, and can only be trumped after applying a rigorous test asking whether there's a "compelling government interest" to justify restrictions, Papandrea said.
She added the test could potentially be met if the rule was "very narrow." But the Legislature's rule, she added, "sounds like it's a broad policy, so it's hard to justify it on a blanket basis."
Johnson said the capital press corps could approach him "if there's a grievance" with the expanded rule.
"Those things can happen," he said. "I get that there's privacy issues and the First Amendment."