I write in solidarity with hundreds of news outlets nationwide that are heeding a call by The Boston Globe to rally today for freedom of the press.
Given President Trump’s characterization of journalists as arrogant, out-of-touch gasbags, I’ll spare you a thinky spiel about the First Amendment and cut to the chase: Journalists aren’t just being iced out by the White House. There are enough efforts hindering reporters here in Colorado for all of us to start taking notice.
Last month, a Denver policeman handcuffed and held me in a patrol car for taking pictures of how officers were treating a man they had restrained, butt naked, on a public sidewalk.
And in June, responding to an open records request by The Independent, the state Supreme Court handed down a factually flawed and constitutionally questionable opinion thwarting the public’s right to monitor state judges’ official actions. The decision has made Colorado the only state without a presumptive First Amendment right to review any court documents. No other court in the nation has gone so far. Not even close.
With Donald Trump, we see time and again that the harder a reporter’s or news outlet’s questions, the fiercer he snipes back publicly with personal insults and attacks on their credibility.
But that’s not the way in Colorado, where antipathy predates Trump and takes other forms.
A year before the 2016 election, you could feel the hostility toward the media in the way Republicans attending a CNBC debate between GOP presidential contenders in Boulder rocked the auditorium during commercial breaks by stomping their feet in condemnation of the journalists asking questions.
You could see the chilling effect on political reporters throughout the governorship of John Hickenlooper whose policy against negative politicking is, whether intentional or not, a dog whistle for “don’t ask tough questions.”
You could tie the erosion of government transparency and public scrutiny to the 2009 demise of The Rocky Mountain News, the subsequent closure and decimation of other newsrooms in Colorado, and the increasing absence of beat reporters watchdogging city halls, police departments and courts.
In a state whose press corps has shrunk by 50 percent over the past decade, a new generation of public officials has become accustomed to fielding fewer tough questions, handling fewer open records requests, and having fewer cameras pointed at them than their predecessors. Whether or not they have something to hide, all too many treat scrutiny as an act of aggression. One upshot is that officials commonly serve up curt and often meaningless prepared comments on issues that can’t possibly be addressed in a few-sentence email. Another is the echo chamber approach whereby officials ignore certain questions altogether.
The day after my July 5 handcuffing, Mayor Michael Hancock issued a statement that went first to other news organizations saying “Denver is not about arresting journalists who are doing their job” and promising an internal affairs investigation. But his administration has effectively blown off inquiries by our newsroom and a statewide coalition of newspapers, broadcasters and transparency advocates about what, if anything, the mayor is going to do about the incident. As with many other controversies, Hancock’s answer has been often a non-answer. His newly installed police chief similarly has ignored calls from the state’s press association and the Colorado Freedom of Information Coalition to publicly announce what steps the department is taking to avoid any similar violations of fundamental liberties.
Like most news outlets, The Independent is keenly aware of waning faith in our industry and the credibility and access we risk by challenging the people and institutions we cover. But those concerns don’t outweigh what’s at stake here.
We are poised to take whatever action necessary to compel the city to keep its police from restraining journalists or anyone else exercising their First Amendment rights.
Our small but mighty newsroom also is fighting the Colorado Supreme Court’s decision to exempt state judicial records from the protection of the First Amendment.
The decision stemmed from our investigation into the case of Sir Mario Owens, a convicted double-murderer who’s one of three men on Colorado’s death row. A judge has ruled that prosecutors in the 18th Judicial District Attorney’s office withheld evidence that could have helped Owens fight his death sentence, but that the violation of prosecutors’ duties did not affect the outcome of the trial.
Under our state’s prior precedents recognizing that the public enjoys some First Amendment protection to inspect court records, The Independent sought four specific court documents detailing the prosecutorial misconduct. Those records included a transcript of a closed-door hearing, and the judge’s ruling on a substantive motion. At the urging of 18th Judicial District Attorney George Brauchler, the judge kept those records sealed without offering a legal explanation for why. The Colorado Supreme Court’s opinion, written by Justice Melissa Hart, incorrectly asserted that we had claimed an absolute right to inspect all documents in Owens’ case and it upheld the judge’s unexplained decision to keep those records under seal.
The ruling denies public review of missteps in how one of Colorado’s three death row inmates was prosecuted. And it will continue shrouding in secrecy details about misconduct in the office of DA Brauchler, who’s running for attorney general, the state’s chief law enforcer.
More broadly, the state Supreme Court’s perfunctory order gives state judges a free pass to seal court records without legal justification, preventing public scrutiny of the judicial branch. It significantly undermines Colorado’s long tradition of openness with public documents. And it gives Colorado the dubious distinction of being the only state that doesn’t consider access to court documents a First Amendment right.
Our lawyers will petition the United States Supreme Court to hear the case. A broad coalition of national news outlets, civic groups and politically diverse legal scholars is supporting our effort.
As The Independent’s editor, I’ve spent years evangelizing about the most obvious way to protect journalism in Colorado: Paying for the news you read. A free press is a financially sustainable press that’s independent enough to keep asking hard questions of people in power, regardless of fallout from funding sources.
There’s another way to protect press freedoms in our state – one I’ve avoided suggesting because, as a matter of ethics, public perception and tradition, journalists typically don’t make political calls to action. Yet these are extraordinary times for our industry, which is under siege not just economically, but also strategically by those in power who’ve found ways, when convenient, to ignore our questions and limit our ability to root out answers.
So here goes.
It would be an enormously powerful thing if voters started making decisions at least partly with an eye toward governmental transparency and First Amendment issues. By this I mean assessing the extent to which candidates allow public scrutiny of themselves and the institutions they run just as we assess their fiscal and policy stances.
Do public officials make themselves available to reporters? Do they meaningfully answer hard questions, or do they ice out journalists who ask them? Do the policies they put in place and the people they hire promote or impede accountability and the free flow of information? And what, if any, action do they take when press freedoms and First Amendment rights are breached?
I dream of an election in which Coloradans ask these questions. I dream of practicing journalism in a state that understands quality news coverage has a direct link to a public mandate for full access to government officials and records. I dream of a time when The Independent and each of the hundreds of outlets editorializing today can spend more time reporting news than fighting for our ability to do so.
Cartoon by Mike Keefe