Shabazz v Rokita (response to MTD)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ABDUL-HAKIM SHABAZZ, )
)
Plaintiff, )
)
v. ) No. 1:22-cv-00268-JRS-MPB
)
TODD ROKITA, in his official capacity )
as Attorney General of the State of )
Indiana, )
)
Defendant. )
PLAINTIFF’S RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS
INTRODUCTION
In John K. MacIver Institute for Public Policy, Inc. v. Evers, 994 F.3d 602 (7th
Cir. 2021), the Seventh Circuit held unequivocally that a limited-access press
conference represents a nonpublic forum and that, as such, any restrictions on access
must be viewpoint neutral and reasonable. Id. at 610. Consistent with this standard,
the plaintiff has accordingly alleged (a) that Attorney General Rokita has banned him
from attending press conferences conducted by the Office of the Attorney General
(Dkt. 1 at 6-7 [¶¶ 30-33, 42]), (b) that he “remains barred” from attending future press
conferences that he desires to attend (id. at 7-8 [¶¶ 42, 44]), (c) that General Rokita’s
decision to ban him from press events is not reasonable (id. at 8 [¶ 45]), and (d) that
this decision is not viewpoint neutral (id. [¶¶ 46-47]). At the present juncture, these
allegations must be accepted as true provided that they are plausible. See, e.g.,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Clearly they are and,
Case 1:22-cv-00268-JRS-MPB Document 13 Filed 03/08/22 Page 1 of 20 PageID #: 46

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once accepted, they are more than sufficient to establish both a violation of the
plaintiff’s First Amendment rights and the ongoing harm necessary for the issuance
of prospective relief. General Rokita’s arguments to the contrary ignore the standard
of review, the applicable First Amendment test, and the actual allegations of the
plaintiff’s complaint. His Motion to Dismiss (Dkt. 11) must be denied in its entirety.
STANDARD OF REVIEW
General Rokita has sought dismissal pursuant to both Federal Rule 12(b)(1)
and Federal Rule 12(b)(6).
A motion to dismiss brought pursuant to Rule 12(b)(1) challenges this Court’s
subject-matter jurisdiction. In evaluating such a motion, the Court “must first
determine whether a factual or facial challenge has been raised.” Silha v. ACT, Inc.,
807 F.3d 169, 173 (7th Cir. 2015). While a factual challenge—wherein the Court “may
look beyond the pleadings and view any evidence submitted to determine if subject
matter jurisdiction exists”—contends that “there is in fact no subject matter
jurisdiction, even if the pleadings are formally sufficient,” a facial challenge contends
that the plaintiff “has not sufficiently alleged a basis of subject matter jurisdiction.”
Id. (emphasis in original) (internal quotations and citations omitted). Here, as in
Silha, General Rokita’s motion, to the extent that it invokes Rule 12(b)(1), is properly
understood as a facial challenge “because [he] contend[s] that [the] complaint lacks
sufficient factual allegations to establish standing,” id.: General Rokita submits no
evidence in support of his motion but instead asserts that the plaintiff’s “complaint
affirmatively demonstrates that he lacks [standing]” (Dkt. 11, ¶ 3) and that the

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plaintiff “alleges no . . . ‘present, adverse effects’” that might entitle him to prospective
relief (Dkt. 12 at 11 [emphasis added]).
In evaluating a facial challenge under Rule 12(b)(1), courts apply the same
standard as they do to determine whether a complaint adequately states a claim
under Rule 12(b)(6). See Silha, 807 F.3d at 173-74. This standard, of course, is well
established:
To analyze the sufficiency of a complaint we must construe it in the light
most favorable to the plaintiff, accept well-pleaded facts as true, and
draw all inferences in the plaintiff’s favor. Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008). A claim must be plausible rather than
merely conceivable or speculative, see Ashcroft, 556 U.S. at 678; Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007), meaning that the
plaintiff must include “enough details about the subject-matter of the
case to present a story that holds together,” Swanson v. Citibank, N.A.,
614 F.3d 400, 404-05 (7th Cir. 2010). But the proper question to ask is
still “could these things have happened, not did they happen.” Id.
Carlson v. CSX Transp., Inc., 758 F.3d 719, 826-27 (7th Cir. 2014) (citation form
altered). “[T]o survive a motion to dismiss under Rule 12(b)(6), the plaintiff does not
have to ‘show’ anything; he need only allege.” Brown v. Budz, 398 F.3d 904, 914 (7th
Cir. 2005) (citing cases).
ALLEGATIONS OF THE COMPLAINT
Abdul-Hakim Shabazz has been a reporter covering Indiana government and
politics since 2004. (Dkt. 1 at 2 [¶ 8]). He has done so for Indianapolis radio stations
WXNT and WIBC and Indianapolis television stations WRTV, WISH, and Fox 59, as
well as for the Indianapolis Business Journal, the Indianapolis Star,
theStatehouseFile.Com, and NUVO. (Id. at 3 [¶ 11]). At the current time, he hosts
a two-hour program, Abdul at Large, each Saturday on WIBC, 93.1 FM. (Id. [¶ 12]).

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He has been, and remains, a frequent contributor to Fox 59’s IN Focus and to WISH
TV’s All Indiana Politics. (Id.). He also remains a regular contributor to the
Indianapolis Business Journal. (Id.). On top of all this, he is the editor and publisher
of IndyPolitics.Org, a political news website that focuses on Indiana and Indianapolis
politics, which he has owned and operated for twelve years. (Id. [¶ 13]). He also
currently hosts Indiana Issues (formerly called Politically Speaking), a radio public
affairs program that runs across the state of Indiana. (Id. at 4 [¶ 14]). Given the
many platforms in which Mr. Shabazz appears, he is constantly reporting on, and
seeking out, news of interest to those following Indiana politics and Indiana political
figures. (Id. [¶ 15]).
Mr. Shabazz is well known as a reporter and writer about Indiana politics and,
as such, was selected to moderate the primary debate, hosted by the nonpartisan
Indiana Debate Commission, for Republicans seeking to be nominated as the party’s
candidate for the United States Senate in 2018. (Id. [¶ 20]). One of the candidates
seeking nomination was Todd Rokita and it was reported that then-candidate Rokita
objected to Mr. Shabazz moderating the debate and stated that the debate should be
moderated by conservatives, not “liberal media figures” and “liberal college
professors.” (Id. at 5 [¶ 21]). These objections were not successful, and Mr. Shabazz
moderated the debate. (Id. [¶ 22]). Mr. Rokita ultimately lost the primary election
for the United State Senate, although he was elected Indiana Attorney General in
2020. (Id. [¶ 23]).
Elected officials in the Indiana Statehouse frequently hold press conferences

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or similar events that may only be attended by credentialed members of the media.
(Id. at 4 [¶ 16]). Media credentials are provided by the Indiana Department of
Administration (“IDOA”) in the form of media badges to be worn or displayed by
credentialed persons. (Id. [¶ 17]). Mr. Shabazz maintains a media badge issued by
the IDOA, which he was given years ago, and frequently attends press conferences
and similar events open only to credentialed media members. (Id. [¶¶ 18-19]).
In October of 2021, General Rokita announced that he would hold a news
conference on October 14, 2021 regarding a lawsuit filed by his office to challenge
robocalls made to Indiana residents. (Id. at 5 [¶ 24]). The announcement of the press
conference issued by the Office of the Attorney General specified that it was for
credentialed media and that media personnel were required to RSVP to attend. (Id.
[¶ 25]). As this was a newsworthy issue that Mr. Shabazz believed was of interest to
the numerous persons he reaches on his various media platforms, Mr. Shabazz sent
his RSVP confirming that he would attend the press conference. (Id. [¶ 26]).
As Mr. Shabazz was traveling to the October 14th news conference, he was
sent an e-mail by General Rokita’s press secretary indicating as follows: “Hi Abdul,
[w]e’re sorry, but you are not credentialed for this event. Please watch via live
stream. Best, David A. Keltz.” (Id. at 6 [¶¶ 32-33]). Mr. Shabazz, however, did not
receive this e-mail until after he had arrived at the press conference (located in the
main conference room of the Office of the Attorney General in the Indiana
Statehouse), presented his media badge to a staff person employed by the Office of
the Attorney General, been informed by the staff person that he was not a

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credentialed media member, and been denied entry to the event. (Id. at 5-6 [¶¶ 27-
32]). The conference room in which the event was conducted could have easily
accommodated the members of the press who were seeking to attend. (Id. at 6 [¶ 28]).
Even if Mr. Shabazz had received information concerning the livestream alternative
in advance of the event, this option was not a viable alternative as it did not allow for
questions or for the informal interactions that frequently occur with officials prior to
or after formal press conferences. (Id. [¶ 34]).
Following the October 14th press conference, General Rokita’s office released
a statement indicating that Mr. Shabazz was not an actual journalist and was merely
a gossip columnist. (Id. [¶ 35]). While it is true that Mr. Shabazz publishes a
newsletter periodically, called the Cheat Sheet, which jokingly indicates that it is “a
compilation of pure gossip, rumor, and blatant innuendo”—and to which the Office of
the Attorney General subscribes—this publication is in addition to all the other
reporting the Mr. Shabazz does on the various platforms noted above. (Id. at 7 [¶¶
36-37]).
On October 15, 2021, Mr. Shabazz sent an e-mail to General Rokita’s press
secretary that stated, “Good morning, [c]ould you please e-mail a copy of the criteria
for the issuance of media credentials for the Office of the Attorney General. Thank
you.” (Id. [¶ 38]). Mr. Shabazz has never received a response to this e-mail. (Id. [¶
39]). On October 28th, he therefore sent a public records request to General Rokita
pursuant to the Indiana Access to Public Records Act seeking information concerning
credentialing of media that cover the Attorney General, documents describing the

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reasons for approving or denying media requests, and all documents regarding
interviews General Rokita had done since being sworn into office in January of 2021.
(Id. [¶ 40]). While he received an initial response indicating that his request was
being reviewed, he has not received any further response. (Id. [¶ 41]).
General Rokita and his office have not removed the ban on Mr. Shabazz
attending the Attorney General’s news conferences and he therefore remains barred
from attending these conferences. (Id. [¶ 42]). The decision to ban Mr. Shabazz from
press events is not reasonable given that Mr. Shabazz was and remains a
credentialed member of the media. (Id. at 8 [¶ 45]). This decision is based on either
personal antipathy of General Rokita towards Mr. Shabazz or on General Rokita’s
opinion that Mr. Shabazz’s reporting is too “liberal,” or perhaps based on both. (Id.
[¶ 46]). In either event, the decision to ban Mr. Shabazz from press events is not
viewpoint neutral. (Id. [¶ 47]). Mr. Shabazz wishes to attend future media-only
events that will be conducted by General Rokita, and being denied this ability
negatively impacts his ability to collect, disseminate, and comment on matters of
interest and import to Hoosiers. (Id. [¶ 44]).
Despite this ban imposed by General Rokita, Mr. Shabazz regularly attends
press briefings, as a credentialed member of the press, of other persons in the Indiana
Statehouse. (Id. at 7-8 [¶ 43]). This includes press briefings and media availabilities
with legislative leaders. (Id. at 8 [¶ 43]). Additionally, Mr. Shabazz has participated
in a press gathering with Governor Holcomb and a news conference at the Statehouse
hosted by U.S. Senator Mike Braun. (Id.).

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ARGUMENT
General Rokita advances two arguments in support of dismissal: that the
plaintiff lacks standing to obtain injunctive relief insofar as he is not suffering
ongoing harm, and that the plaintiff has not adequately pled a First Amendment
violation. The first argument ignores the actual allegations of the plaintiff’s
complaint, which must be accepted as true at present. And the second argument
ignores the standard that the Seventh Circuit has recently, and unequivocally,
established for evaluating the refusal to allow a member of the media to attend a
limited-access press event. The Motion to Dismiss (Dkt. 11) must be denied in its
entirety.
I. The plaintiff has pled facts sufficient to establish his standing to seek
injunctive relief
Although General Rokita concludes his brief in support of dismissal with his
contention that this Court lacks subject-matter jurisdiction (see Dkt. 12 at 10-11),
because subject-matter jurisdiction affects the Court’s “power to hear a case” at all,
see, e.g., Union Pac. RR. Co. v. Brotherhood of Locomotive Eng’rs & Trainmen Gen.
Comm. of Adjustment, 558 U.S. 67, 81 (2009), the issue is properly addressed at the
outset.
It is, of course, axiomatic that Article III of the U.S. Constitution requires “that
those who seek to invoke the power of federal courts must allege an actual case or
controversy.” O’Shea v. Littleton, 414 U.S. 488, 493 (1974) (citations omitted). A
plaintiff must accordingly allege
(1) it has suffered an “injury in fact” that is (a) concrete and

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particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of
the defendant; and (3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000) (relying on Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
General Rokita appears to challenge only whether the plaintiff has alleged injury in
fact sufficient to allow for an award of prospective relief. (See Dkt. 11, ¶ 3 [asserting
that the plaintiff “lacks sufficient grounds to claim a likelihood of future injury”]; Dkt.
12 at 10 [arguing that the plaintiff lacks standing because he has not alleged “the
real and immediate threat of future injury necessary to make out a case or
controversy justifying injunctive relief”]).
The Supreme Court has held that a plaintiff satisfies the injury in fact
requirement for injunctive relief “where he alleges ‘an intention to engage in a course
of conduct arguably affected with a constitutional interest, but proscribed by [the
defendant], and there exists a credible threat of [enforcement].’” Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Babbitt v. Farm Workers, 442 U.S.
289, 298 (1979)). In this regard, the plaintiff’s complaint could not be clearer. As
described above, he has alleged the following:
30.Mr. Shabazz had his badge and presented it [at an October 14th
press conference conducted by General Rokita]. However, the staff
person denied him admission, indicating that he was not a
credentialed media member, although Mr. Shabazz obviously was
and is.
* * *
35.Following this, General Rokita’s office released a statement
indicating that Mr. Shabazz was not an actual journalist and was

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merely a gossip columnist.
* * *
42.The Attorney General and his office have not removed the ban on Mr.
Shabazz attending the Attorney General’s news conferences and he
therefore remains barred.
* * *
44.Mr. Shabazz wishes to attend future media-only events that the
Attorney General will conduct and being denied this ability
negatively impacts his ability to collect, disseminate, and comment
on matters of interest and import to Hoosiers.
(Dkt. 1 at 6-8). In other words, the plaintiff has alleged “an intention to engage in a
course of conduct arguably affected with a constitutional interest” (he wishes to
attend future media-only events that General Rokita will conduct); he has alleged
that this course of conduct has “been proscribed” by General Rokita (he was refused
admission to the October press conference and his ban remains in effect); and he has
alleged a “credible threat” of future enforcement (he remains barred from General
Rokita’s press conferences). When a plaintiff seeks injunctive relief, this is clear
“injury in fact” under Article III.1
1 In an article published November 1st—more than two weeks after the plaintiff was
first refused admission to General Rokita’s press conference—a spokesman for General
Rokita was quoted as explaining the plaintiff’s ban as follows:
Our press conferences are meant for actual journalists reporting on real issues,
instead of gossip columnists. Shabazz, by his own admission, promotes disinformation
so much so that he must disclaim his work as “gossip, rumor, and blatant innuendo,”
in order to escape from being sued for defamation . . . . Therefore, an OAG press
conference concerning a serious investigation is not an appropriate venue for Shabazz.
Kaitlin Lange, Why Attorney General Todd Rokita blocked a political writer from a press
conference, Indianapolis Star, Nov. 1, 2021, available at https://www.indystar.com/story/
news/politics/2021/11/01/attorney-general-todd-rokita-why-he-blocked-abdul-hakim-shabazz
/6190761001 (last visited Mar. 3, 2022). Even after this action was initiated, General Rokita’s
press secretary was described in the media as referencing this original justification for the
plaintiff’s ban and was further quoted as expressing “confiden[ce] that our actions are legally

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In lieu of confronting the plaintiff’s specific allegations of ongoing harm,
General Rokita chooses instead to ignore them and, without basis, contends simply
that the plaintiff “alleges no . . . ‘present, adverse’ effects” stemming from the ban
that has been imposed against him. (Dkt. 12 at 11). The lesson of City of Los Angeles
v. Lyons, 461 U.S. 95 (1983), of course, is that past injury alone does not justify
prospective relief unless the plaintiff “credibly allege[s] that he face[s] a realistic
threat from the future application of the [challenged] policy.” Id. at 106 n.7. But,
notwithstanding General Rokita’s baseless attempt to reframe the plaintiff’s
complaint as concerning only an isolated instance of past misconduct, that is precisely
what the plaintiff has alleged here.
To be sure, if General Rokita has had a change of heart and is willing to commit
to allowing the plaintiff to attend future press conferences on the same terms and
conditions as other credentialed members of this media, he may end this litigation by
saying so—although he must say so in a manner that satisfies his “heavy burden” of
sound and needed to protect staff against professional harassment while defending
constituents from the ‘rumors, gossip and blatant innuendo’ Shabazz directly admits to
peddling.” Vickie Binkley, ACLU sues AG Rokita for barring journalist from news
conferences, Fox 59, Feb. 2, 2022, available at https://fox59.com/news/aclu-sues-ag-rokita-for-
barring-journalist-from-news-conferences (last visited Mar. 3, 2022).
While the citation to news articles in briefing “might raise an eyebrow,” not only did the
plaintiff advance similar allegations in his complaint but a plaintiff opposing a Rule 12(b)
motion may rely on “materials outside the pleadings to illustrate the facts the party expects
to be able to prove.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (relying
on an article from the Chicago Tribune); see also, e.g., Freeman v. City of Crown Pointe, No.
2:13-CV-059-JD, 2014 WL 545511, at *4 (N.D. Ind. Feb. 11, 2014) (refusing to strike two news
articles). General Rokita’s decision to seek dismissal of this action based on his erroneous
characterization of the plaintiff’s claim as addressing a one-time injury that took place last
October while simultaneously advancing an ongoing need to prevent the plaintiff from
attending future press conferences is, to say the least, curious.

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demonstrating that “subsequent events [have] made it absolutely clear that the
alleged wrongful behavior could not reasonably be expected to recur.” Friends of the
Earth, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export
Ass’n, 393 U.S. 199, 203 (1968)); see also United States v. W.T. Grant Co., 345 U.S.
629, 632-33 (1953). He has, of course, not attempted to do so. Far from it: even in
seeking dismissal of this action he vigorously defends his asserted right to exclude
members of the media from his press conferences. See, e.g., Parents Involved in Cmty.
Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007) (concluding that a case was
not rendered moot by the voluntary cessation of the challenged conduct in part
because the defendant continued to “vigorously defend[]” the challenged program).
For present purposes, it suffices to reiterate that the plaintiff has adequately alleged
ongoing harm resulting from General Rokita’s action, and this Court thus has clear
jurisdiction to hear his claims for injunctive relief.
II. The plaintiff has appropriately pled a First Amendment violation
As noted at the outset, the Seventh Circuit in John K. MacIver Institute for
Public Policy, Inc. v. Evers (“MacIver Institute”), 994 F.3d 602 (7th Cir. 2021), recently
articulated the standard that courts must apply when a member of the press claims
a First Amendment violation arising from the denial of access to a media-only event:
the denial must be viewpoint neutral and reasonable. Id. at 610. Consistent with
this standard, the plaintiff expressly alleged in his complaint that General Rokita’s
actions were not viewpoint neutral and were not reasonable. (Dkt. 1 at 8 [¶¶ 45-47]).
General Rokita’s contention that the plaintiff has failed to allege a First Amendment

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violation is without merit and must be rejected.
A. As the Seventh Circuit concluded in MacIver Institute, a limited-
access press conference represents a nonpublic forum such that
any restrictions on access must be both viewpoint neutral and
reasonable
General Rokita’s action in excluding the plaintiff from limited-access press
conferences, of course, implicates the plaintiff’s First Amendment rights: “The
importance of a free press to our founders was memorialized in the First Amendment
which prohibits the government from abridging the freedom of press, which now, of
course, encompasses all forms of media.” MacIver Institute, 994 F.3d at 605.
Assessing such a First Amendment claim will generally require a court to first
determine the type of “forum” represented by such a limited-access press event. See,
e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983)
(describing forum analysis). Fortunately, this Court is not tasked with writing on a
blank slate.
As noted, the Seventh Circuit in MacIver Institute, after describing forum
analysis at great length, concluded unequivocally that a press conference for
journalists represents a nonpublic forum. “These limited-access press conferences,”
said the court, “are open only to journalists who meet the [specified] content-neutral
criteria, and then, only the limited number of reporters who can be accommodated
after taking into account space constraints and security concerns.” 994 F.3d at 610.
Thus, the plaintiff in that case “want[ed] access to a non-public forum—one to which
the government may regulate access provided the regulations are reasonable and ‘not
an effort to suppress expression merely because public officials oppose the speaker’s

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view.’” Id. (quoting Perry Educ. Ass’n, 460 U.S. at 46); see also id. at 610 n.1 (“We
think the nonpublic forum analysis is the appropriate one as applied to the facts of
this case involving an invitation-only, limited-access press event.”).
Rather than attempt to apply the test announced by the Seventh Circuit in
MacIver Institute, General Rokita instead insists at great length that the First
Amendment does not establish a generalized “right of access to information” by the
media (Dkt. 12 at 4-8) or a right of members of the press to “interact with others” (id.
at 8-10). True enough. But this is only to say that he is under no obligation to conduct
press conferences at all: where a nonpublic forum is concerned, the government may
choose to close the forum altogether. See, e.g., Perry Educ. Ass’n, 460 U.S. at 49
(“Because the school mail system is not a public forum, the School District had no
constitutional obligation per se to let any organization use the school mail boxes.”)
(internal quotation and citation omitted). However, having opened the forum by
conducting limited-access press conferences in the first place, General Rokita may
not discriminate against would-be attendees on the basis of their viewpoint and may
not impose restrictions that are not reasonable. See, e.g., Pleasant Grove City v.
Summum, 555 U.S. 460, 470 (2009); Davenport v. Washington Educ. Ass’n, 551 U.S.
177, 189 (2007); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001);
Ark. Educ. Television Comm’n. v. Forbes, 523 U.S. 666, 677-78 (1988); Cornelius v.
NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 799-800 (1985); Perry Educ.
Ass’n, 460 U.S. at 46; MacIver Institute, 994 F.3d at 610 & n.1; Lavite v. Dunstan, 932
F.3d 1020, 1030 (7th Cir. 2019); Higher Soc’y of Ind. v. Tippecanoe Cnty., 858 F.3d

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1113, 1116 (7th Cir. 2017). General Rokita completely ignores this longstanding and
definitively articulated law and does not acknowledge, let alone apply, the
appropriate First Amendment standard.2
B. Consistent with the standard established by MacIver Institute, the
plaintiff has plausibly alleged that his ban from press conferences
conducted by General Rokita is viewpoint based and is not
reasonable
As noted, when operating a nonpublic forum, General Rokita may not impose
restrictions that are viewpoint based or that are not reasonable. See Perry Educ.
Ass’n, 460 U.S. at 46; MacIver Institute, 994 F.3d at 610. Quite clearly, the plaintiff
has alleged that the ban at issue here fails this standard:
45.The Attorney General’s decision to ban Mr. Shabazz from press
events is not reasonable given that Mr. Shabazz was and remains a
credentialed member of the media.
46.The Attorney General’s decision to ban Mr. Shabazz is based on
either personal antipathy of the Attorney General towards Mr.
Shabazz or on the Attorney General’s opinion that Mr. Shabazz’s
2 Because General Rokita does not attempt to apply the appropriate First Amendment
standard, it is not necessary to address the jurisprudence on which he relies at any length.
Suffice it to say that he relies predominantly on a series of cases upholding generally
applicable restrictions on access to information. See Houchins v. KQED, Inc., 438 U.S. 1, 10
(1978) (cited at Dkt. 12 at 5) (challenge to refusal to permit media to inspect and photograph
nonpublic portions of a county jail); Zemel v. Rusk, 381 U.S. 1, 17 (1965) (cited at Dkt. 12 at
4) (challenge to ban on travel to Cuba); Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937,
946-47 (7th Cir. 2015) (cited at Dkt. 12 at 4) (challenge to statute prohibiting the disclosure
of personal information in motor vehicle records); Putnam Pit, Inc. v. City of Cookeville, 221
F.3d 834, 841 (6th Cir. 2000) (Dkt. 12 at 5) (challenge to city’s provision of parking ticket
records in physical, but not electronic, form); United States v. McDougal, 103 F.3d 651, 659
(8th Cir. 1996) (cited at Dkt. 12 at 6) (challenge to generally applicable order prohibiting the
release of videotaped deposition of President Clinton); Capital Cities Media, Inc. v. Chester,
797 F.2d 1164, 1168 (3d Cir. 1986) (cited at Dkt. 12 at 5) (challenge to refusal to disclose
environmental records protected from disclosure by generally applicable state policy). In
none of these cases did the various courts authorize unreasonable or viewpoint-based
restrictions on access to information that officials chose to make public. Cf., e.g., Putnam Pit,
221 F.3d at 841 (“There is no indication in the record that access to parking ticket records in
electronic form had ever been allowed by the city.”).

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reporting is too “liberal,” or perhaps based on both.
47.In either event, the Attorney General’s decision to ban Mr. Shabazz
from press events is not viewpoint neutral.
(Dkt. 1 at 8). On preliminary injunction, on summary judgment, or at trial, General
Rokita may attempt to adduce evidence that his actions were reasonable and did not
result from his opposition to the plaintiff’s viewpoint. But the allegations of the
complaint must be accepted as true at present, and the plaintiff has plausibly alleged
that General Rokita’s actions fail the standard announced in MacIver Institute.
General Rokita cites MacIver Institute only once—for the proposition that
“total exclusion from access to the information shared in an invitation-only press
conference (i.e., a nonpublic forum) does not necessarily violate the First
Amendment.” (Dkt. 12 at 7 [citing MacIver Institute, 994 F.3d at 612]). That is true:
sometimes the facts will demonstrate that an individual’s exclusion from such an
event resulted from viewpoint discrimination or was unreasonable, and sometimes
they won’t. The plaintiff here has alleged that his exclusion was improper under this
standard, and this Court need proceed no further.3
3 General Rokita also cites the Fourth Circuit’s unpublished decision in Snyder v.
Ringold, 133 F.3d 917 (4th Cir. 1998). (Dkt. 12 at 7). In Snyder—the citation of which is
“disfavored,” see 4th Cir. R. 32.1(a)—the court held simply that a generalized right of “equal
access” amongst members of the press was not clearly established and that the defendant
was therefore entitled to qualified immunity. This decision has no impact whatsoever on this
case, where the Seventh Circuit has spoken clearly and where the plaintiff has not sought
monetary damages such that qualified-immunity analysis is irrelevant. The Snyder court
did, however, cite decisions from several other circuits that reached conclusions similar to
the conclusions reached in MacIver Institute. See, e.g., Anderson v. Cryovac, Inc., 805 F.2d 1,
9 (1st Cir. 1986) (“A court may not selectively exclude news media from access to information
otherwise made available for public dissemination.”); Am. Broad. Cos., Inc. v. Cuomo, 570
F.2d 1080, 1083 (2d Cir. 1977) (“[O]nce there is a public function, public comment, and
participation by some of the media, the First Amendment requires equal access to all of the
media or the rights of the First Amendment would no longer be tenable.”); Sherrill v. Knight,

17
C. General Rokita is not saved from the plaintiff’s First Amendment
challenge by the plaintiff’s ability to watch press conferences via
livestream
Rather than applying the appropriate standard that was unequivocally
established by the Seventh Circuit in MacIver Institute—or even applying forum
analysis at all—General Rokita instead appears to rest his argument on the
contention that the plaintiff has not been denied “equal access” to press conferences
insofar as he may watch these conferences from a distance via livestream. (Dkt. 12
at 4-8). This is a curious argument: if General Rokita actually thought that the two
options were one and the same, presumably he would not have banned the plaintiff
from in-person conferences while allowing him to “attend” via livestream.4
569 F.2d 124, 130 (D.C. Cir. 1977) (“Given the[] important first amendment rights implicated
by refusal to grant White House press passes to bona fide Washington journalists, such
refusal must be based on a compelling governmental interest.”); see also Alaska Landmine,
LLC v. Dunleavy, 514 F. Supp. 3d 1123, 1130-31 (D. Alaska 2021) (applying the district
court’s holding in MacIver Institute to conclude that limited-access press conferences
represent nonpublic fora), appeal voluntarily dismissed, 2021 WL 2103741 (9th Cir. Mar. 4,
2021).
4 General Rokita’s argument is based on the plaintiff’s allegation that he was informed
via e-mail on October 14th that he could watch that particular press conference via
livestream, although he was not provided this information until he was already en route to
the conference and did not receive the information until after he was denied admission to the
conference. (Dkt. 1 at 6 [¶¶ 32-33]). Even were there no other flaws in General Rokita’s
contention that the First Amendment allows him to relegate the plaintiff (and no other
member of the media) to second-class status by refusing him admission to in-person
conferences—and there are plenty of flaws in this contention—the actual allegations of the
plaintiff’s complaint are a far cry removed from an allegation that meaningful access to the
livestream is provided for all press conferences: instructing a reporter to attend online when
he is already traveling to the event certainly does not allow for meaningful access, and the
complaint does not even allege that General Rokita’s press conferences are always
livestreamed. Given that General Rokita relies on facts that were not even alleged in the
complaint and that certainly are not self-evident, his argument may be rejected on this basis
alone. After all, at the present juncture, the plaintiff and not General Rokita is entitled to
have factual inferences drawn in his favor. See, e.g., Taha v. Int’l Brotherhood of Teamsters,
Local 781, 947 F.3d 464, 469 (7th Cir. 2020).

18
That curiosity aside, the most notable problem with General Rokita’s
argument is that he ignores what “equal access” actually means. The plaintiff is
permitted to watch General Rokita’s press conferences via livestream but is not
allowed in-person access to the conferences; all other credentialed members of the
media are allowed either to watch the livestream or to attend in person. By no stretch
of the imagination is this “equal.” General Rokita’s assertion that the livestream
alternative immunizes him from the plaintiff’s First Amendment challenge—and
authorizes wide-ranging viewpoint discrimination and the imposition of even
unreasonable restrictions on access to the in-person event—has absolutely no basis
in the law and would pose grave danger to a free press. But, if that were not enough
(and it is), here the plaintiff has actually pled how the offered livestream alternative
is inadequate:
34. The live stream option, even if Mr. Shabazz had been aware of it, was
not a viable option as it did not allow for questions or the informal
interactions that frequently occur with officials prior to or after formal
press conferences.
(Dkt. 1 at 6). This ability to ask questions of public officials and these informal
interactions are of paramount importance to any reporter, whose trade very much
depends on the ability to probe an official’s statements, to follow up separately on
specific inquiries, and even just to develop, maintain, or advance important
relationships with sources and with other members of the media.5
5 In his brief supporting dismissal, General Rokita recasts the plaintiff’s description of the
inadequacy of the livestream alternative as a claim to an independent “right to interact with a
government official at a press conference.” (See Dkt. 12 at 8-10). This argument need not be
addressed at any length, for the plaintiff’s allegations concerning the inadequacy of this

19
In an oft-repeated aphorism, “[t]he First Amendment mandates that we
presume that speakers, not the government, know best both what they want to say
and how to say it.” Riley v. Nat’l Fed. of the Blind of N. Carolina, Inc., 487 U.S. 781,
790-91 (1988). Although this observation arose in the free-speech context, it is just
as applicable to the closely intertwined right to receive information and to the free-
press clause: General Rokita, having made the decision to conduct press conferences
in the first place, may not dictate to disfavored members of the media—and only
disfavored members of the media—how they may cover his events. His arguments to
the contrary cannot overcome MacIver Institute. They are without merit and must
be rejected.
CONCLUSION
The facts giving rise to this litigation are extraordinary and deserve repeating:
General Rokita, the top lawyer for the State of Indiana, has decided to ban from his
alternative were intended only to underscore the practical effect of the unequal treatment
provided to the plaintiff by General Rokita. In any event, the fact that General Rokita and his
staff might choose to interact with particular persons following a press conference, or might
choose not to interact with anyone at all, does not change the Seventh Circuit’s conclusion in
MacIver Institute that the event itself represents a nonpublic forum.
In the principal case relied upon by General Rokita—Minnesota State Board for Community
Colleges v. Knight, 465 U.S. 271 (1984) (cited at Dkt. 12 at 9), where the challenged state law
required governmental employers to meet and confer with their employees’ official collective
bargaining unit but not with others—the U.S. Supreme Court was clear that it was not addressing
a forum at all: “the claim in this case is not even a claim of access to a nonpublic forum.” Id. at 281
(emphasis in original). To be sure, General Rokita may certainly choose which persons (media
and non-media alike) with whom he wishes to interact directly, see, e.g., Baltimore Sun Co. v.
Ehrlich, 437 F.3d 410, 416-17 (4th Cir. 2006) (cited at Dkt. 12 at 9) (holding that “there is no [First
Amendment] retaliation when the government’s alleged retaliatory action was government
speech”), but he may not deny access to the forum itself unless the denial is both reasonable and
viewpoint neutral. See MacIver Institute, 994 F.3d at 610.

20
press conferences an established and widely disseminated member of the media due
to an antipathy either towards the plaintiff himself or towards the plaintiff’s
reporting. His arguments in support of dismissal ignore both the facts alleged in the
plaintiff’s complaint and controlling jurisprudence. More broadly, they also ignore
the foundational role that a free, uninhibited press performs in our society. The
Motion to Dismiss (Dkt. 11) must be denied in its entirety.
Gavin M. Rose
Kenneth J. Falk
Stevie J. Pactor
ACLU of Indiana
1031 E. Washington St.
Indianapolis, IN 46202
317/635-4059
fax: 317/635-4105
kfalk@aclu-in.org
grose@aclu-in.org
spactor@aclu-in.org
Attorneys for the plaintiff

Shabazz v Rokita (response to MTD)

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