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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 30, 2026
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
UTAH POLITICAL WATCH, INC.;
BRYAN SCHOTT,
Plaintiffs - Appellants,
No. 25-4124
v.
ALEXA MUSSELMAN, Utah House of
Representatives Communications Director
and Media Liaison Designee; ANDREA
PETERSON, Utah Senate Deputy Chief of
Staff and Media Liaison Designee; ABBY
OSBORNE, Utah House of
Representatives Chief of Staff; MARK
THOMAS, Utah Senate Chief of Staff, in
their official and individual capacities,
Defendants - Appellees.
---------------------------------------------------AMERICAN CIVIL LIBERTIES UNION
OF UTAH FOUNDATION;
FOUNDATION FOR INDIVIDUAL
RIGHTS AND EXPRESSION;
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS,
Amici Curiae.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:25-CV-00050-RJS)
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Charles Miller, Institute for Free Speech, Washington, D.C. (Robert P. Harrington, Kunzler Bean & Adamson, PC, Salt Lake City, Utah, with him on the briefs) for Plaintiffs-Appellants.
Daniel M. Vitagliano, Consovoy McCarthy PLLC, Arlington, Virginia (Julius Kairey, Consovoy McCarthy PLLC, Arlington, Virginia; Tyler R. Green, Consovoy McCarthy PLLC, Salt Lake City, Utah; and Victoria Ashby, Christine R. Gilbert and Alan R. Houston, Office of Legislative Research & General Counsel, Salt Lake City, Utah, with him on the brief) for Defendants-Appellees.
Jason M. Groth and Masami T. Kanegae, ACLU of Utah Foundation, Salt Lake City, Utah, filed an Amicus Curiae Brief of the American Civil Liberties Union of Utah Foundation.
Katie Townsend, Gibson, Dunn & Crutcher LLP, Los Angeles, California; Connor P. Mui, Gibson, Dunn & Crutcher LLP, Washington, D.C.; and Peter Jacobs, Gibson, Dunn & Crutcher UK LLP, London, EC4Y 0HB, United Kingdom, filed an Amicus Curiae Brief of the Foundation for Individual Rights and Expression and the Reporters Committee for Freedom of the Press.
Before TYMKOVICH, MURPHY, and BACHARACH, Circuit Judges.
TYMKOVICH, Circuit Judge.
The Utah Legislature opens its legislative sessions to the public so that its
constituents may observe the state’s lawmaking process. The Legislature also grants
additional access to professional journalists through what it calls its Capitol Media
Access and Credentialing Policy. Beyond what the Legislature affords the public,
credentialed journalists receive perks such as entry to a press room and secure areas
of the Capitol, use of designated media workspaces in the Senate and House galleries,
and access to media availabilities and press events with elected officials. To be
eligible for a credential, a journalist must be “part of an established reputable news
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organization” and “[a]dhere to a professional code of ethics.” App., Vol. I at 68.
The policy categorically excludes journalists associated with “[b]logs, independent
media or other freelance media” from receiving a credential. Id.
Bryan Schott is a journalist who covered the state house for more than twentyfive years on behalf of various institutional media companies, including Salt Lake
City’s most prominent newspaper. The Legislature granted media credentials to
Schott each year that he worked for these companies. But in 2025, after Schott left
the newspaper and started his own independent news organization—Utah Political
Watch—while continuing to report on state politics and legislature matters, the
Legislature denied his credential application.
Schott challenged the policy by suing various legislative officials who
administered it. He alleged the policy was unconstitutional for facial and as-applied
viewpoint discrimination prohibited by the First Amendment, along with various
other constitutional claims. The district court dismissed all his claims.
We AFFIRM in part and REVERSE in part. The district court erred in
dismissing Schott’s viewpoint discrimination claims. On his as-applied viewpoint
challenge, he plausibly alleged that the Legislature denied his application because of
his news stories’ viewpoints. We also conclude the district court erred in dismissing
Schott’s facial viewpoint claim because it incorrectly found he failed to allege
infringement of protected speech. We remand to the district court for it to address
whether the policy on its face is viewpoint-based. On the remaining claims—
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retaliation, prior restraint, and vagueness—the district court did not err in dismissing
them.
I. Background
A. Factual Background 1
Utah’s legislative session runs from late January to early March and is
generally open to the public. The State, however, also created designated areas
throughout the Capitol for media members to more conveniently cover the
Legislature’s session. The Legislature began to require media credentials in 2013 for
journalists to access those areas, and in 2018, it adopted a written credentialing
policy. Early versions of the policy did not categorically exclude independent media.
For example, the 2019 policy permitted “a blog site owner or organization not bound
by a code of ethics” to receive a credential by “sign[ing] a document stating they will
abide by the journalistic code of ethics.” App., Vol. I at 49. In 2021, the Legislature
updated the policy to require the applicant to “[r]epresent an established, reputable
news organization or publication.” Id. at 54. The 2021 policy did, however, state
that “[b]loggers representing a legitimate independent news organization may
become credentialed under some circumstances.” Id. at 55. The Legislature altered
its 2023 and 2024 policies to be more restrictive on independent media by stating that
We set forth the facts as alleged in Schott’s Amended Complaint, its exhibits,
1
and documents incorporated by reference therein. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (“In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the complaint itself, but also attached exhibits and documents incorporated into the complaint by reference.” (internal citations omitted)).
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“[b]loggers representing a legitimate independent news organization may become
credentialed under limited, rare circumstances.” Id. at 62, 66 (emphasis added).
Bryan Schott is a professional journalist who has reported on Utah politics for
more than two decades. He is a member of the Society of Professional Journalists
and abides by its code of ethics. Schott has received many national and local awards
for his reporting. He has covered Utah’s Legislature since 1999 and previously
worked at news organizations such as UtahPolicy.com and The Salt Lake Tribune.
Schott held a media credential each year that the Legislature issued them through the
2024 legislative session.
During the 2024 legislative session, Schott “produce[d] news content critical
of the Utah Legislature or its leaders.” Id. at 37. For example, after Schott wrote an
article criticizing Utah House Speaker Mike Schultz for dodging questions, Schultz
sent Schott messages accusing him of bias and stated, “You used to be the best
reporter in the Legislature. It’s sad how far you’ve fallen.” Id. at 21. On another
occasion, after Schott made a social media post “poking a little fun” at legislative
staffers who struggled to set up a backdrop, Abby Osborne, the Chief of Staff for the
Utah House of Representatives, publicly replied:
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Id. at 22.
In September 2024, after leaving The Salt Lake Tribune, Schott founded Utah
Political Watch (UPW). Schott is UPW’s owner, publisher, sole reporter, and Editorin-Chief. UPW is a news service that covers Utah politics and operates as a limited
liability corporation. It offers free newsletters covering Utah politics as well as
subscription-based content. UPW carries two million dollars in media liability
insurance. Because Schott is UPW’s sole reporter and its Editor-in-Chief, no one
substantively edits his stories. UPW does, however, employ Schott’s wife as his
copyeditor to help with stylistic edits, story selection, and writing headlines. UPW’s
website receives tens of thousands of visitors each month and Schott’s top stories
usually receive thousands of views. UPW also produces a podcast in which Schott
discusses Utah political news.
At some point after Schott left The Salt Lake Tribune, his former employer
notified the Legislature that Schott was no longer affiliated with the organization.
See App., Vol. I at 77. Schott alleged the Legislature then “revoked [his 2024]
credentials” even though the 2024 policy did not yet categorically exclude blogs and
independent media. Id. at 35.
In November 2024, the Legislature again revised its media credentialing policy
in anticipation of the 2025 legislative session. The 2025 policy read:
The Utah Capitol Media Credential application process . . . is
designed to give professional journalists and media
representatives from reputable organizations access to cover
the Legislature and other significant events at the Utah State
Capitol. This process aims to support informed reporting
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while maintaining the integrity and security of the
Capitol. . . .
***
To apply for a Utah State Capitol Media Credential, an
applicant needs to: . . .
• Be a professional member of the media (which includes
journalists, photographers and videographers) who
regularly covers the Legislature and Capitol in person
and is part of an established reputable news
organization or publication. . . .
o Blogs, independent media or other freelance media
do not qualify for a credential. . . .
• Adhere to a professional code of ethics. . . .
***
Credentials may be denied or revoked for any reason, such as
the following: . . .
• Does not represent an established reputable news
organization or publication.
• Does not regularly cover the Legislature in person at
the Capitol.
• Fails to adhere to standards of professional conduct. . . .
Id. at 68–70. If the Legislature denied credentials to an applicant, the applicant had
the right to appeal to the “Senate or House chief of staff.” Id. at 70.
The 2025 policy also stated that credentialed media had access to:
• [S]ome secure areas of the Capitol, such as the press
room and designated areas in the Senate and House
chambers . . . .
• [D]esignated media workspaces in the Senate and
House galleries. . . .
• [M]edia availabilities and other press events with
elected officials. . . .
• [D]esignated media parking. . . .
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• [T]he Capitol press room, which is equipped with
internet access and an audio feed from both
chambers. . . .
Id. at 69.
On December 12, 2024, Schott reported for UPW that a local nonprofit had
filed an ethics complaint accusing Utah Senate President Stuart Adams of violating
campaign disclosure laws. Adams criticized Schott’s story on social media:
Id. at 22. The Utah Senate’s official social media page also posted Adams’s
statement but later removed it.
In text messages discussing the story, Andrea Peterson, the Utah Senate
Deputy Chief of Staff and Media Liaison Designee, referred to Schott as “someone
who claims to be a journalist” and accused him of “lack[ing] professionalism[,] . . .
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journalistic ethics[,] . . . [and] journalistic integrity,” “disregard[ing] accurate
reporting and ethical standards,” writing a “misleading” and “factually inaccurate”
story, and engaging in “a troubling pattern of neglectful journalism.” Id. at 73–75.
Schott replied to Peterson, “It certainly sounds like you’re going to use your criticism
of this story you don’t like to deny me a press credential next week.” Id. at 73.
Peterson responded, “We will follow our policy when reviewing media credential
applications.” Id.
On December 17, 2024, Schott applied for a media credential. Soon after,
Alexa Musselman, the Utah House of Representatives Communications Director and
Media Liaison Designee, emailed Schott informing him the Legislature denied his
application because “Utah Capitol media credentials are currently not issued to blogs,
independent, or other freelance journalists.” Id. at 24.
Schott appealed, and on December 26, 2024, he received a letter from Osborne
and Mark Thomas, the Chief of Staff for the Utah Senate, upholding the denial. The
letter stated:
The media liaison designees reviewed your recent submission
and determined that the organization you named in your
application, Utah Political Watch, was a blog, independent
media outlet, or freelance media and therefore did not qualify
for credentialing. This decision is consistent with the policy
authorizing established, reputable news organizations, such as
the Salt Lake Tribune, and prohibiting blogs, independent
media outlets or freelance media. . . .
Any claim that recent updates to the policy were intended to
prevent targeted individuals from obtaining credentials is
inaccurate and completely unfounded.
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Finally, nothing prevents individuals from reporting on the
proceedings of the Utah Legislature, regardless of whether
they hold a media credential. The Utah Legislature is
dedicated to maintaining a transparent government, and the
Capitol is open to all. Committee meetings, legislative floor
debates, agenda items and materials are readily accessible on
the legislative website, and everyone is welcome to attend
committee meetings and floor time.
Id. at 77–78.
Upon Schott’s request, the Legislature provided him with a list of news
organizations that it granted or denied media credentials to between 2021 and 2025.
Relying on that list, Schott alleged the Legislature applied its policy inconsistently
and targeted him for disfavored treatment. For example, Schott alleged Utah News
Dispatch received a media credential for the 2024 session despite at the time being
only “a month-old organization.” Id. at 23. He also alleged the Legislature issued a
credential for the 2025 session to a reporter from Building Salt Lake, a self-described
“locally owned, independent media.” Id. at 25. Schott claimed that when he filed his
complaint, Building Salt Lake’s website described itself as “a nationally recognized
Top-100 Urban Planning Blog.” 2 Id. And Schott further alleged the Legislature
2
At oral argument, the Legislature argued that the Building Salt Lake web address Schott cited in his complaint does not contain a quote describing itself as a “blog.” See App., Vol. I at 25 (citing About, Building Salt Lake,
https://buildingsaltlake.com/about/). The Legislature is correct that the webpage does not currently describe itself as a blog. But it is reasonable to infer that the webpage did so at the time Schott filed his complaint, and Building Salt Lake has since updated it. The webpage now states, “Building Salt Lake is a nationally recognized Top-100 Urban Planning Source . . . .” About, Building Salt Lake, https://buildingsaltlake.com/about/ [https://perma.cc/KMA6-Y78K] (last visited Apr. 21, 2026) (emphasis added). But that statement is linked to another website that lists Building Salt Lake (#28) among the “Best Urban Planning Blogs . . . .” 100 Best
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issued credentials “to reporters from multiple organizations that call themselves
independent, including Building Salt Lake, Gephardt Daily, The Salt Lake Tribune,
Utah Policy, and Utah News Dispatch.” Id.
Schott also cited in his complaint a Declaration from Musselman in which she
further explained the Legislature denied his 2025 session application because he “is
not responsible to an editor and is the final arbiter and executioner of his stories, and
thus represents his own stream of consciousness.” Id. at 26. Schott, however,
alleged the Legislature did not consistently apply its purported requirement that an
applicant be responsible to an editor. For example, he claimed the Legislature
granted credentials “to Becky Ginos,” who “is the editor and sole staff member of the
Davis Journal.” Id. at 27 (citing About Us, The City Journal,
https://www.davisjournal.com/pages/about-us). Schott also alleged the Legislature
“issued a press credential to Holly Richardson, the editor and sole employee of Utah
Policy.” Id. (citing About, Utah Policy, https://utahpolicy.com/about).
Schott further alleged that without a media credential he was unable to
personally attend and ask questions at several legislative press conferences for the
2025 session. He also claimed that without a credential he was unable to attend
various media availabilities with elected officials.
Urban Planning Blogs to Follow in 2026, FeedSpot (Apr. 20, 2026),
https://bloggers.feedspot.com/urban_planning_blogs/ [https://perma.cc/KU9M-N66J] (emphasis added). At this preliminary stage we draw “all reasonable inferences in favor of the non-moving party,” and we conclude Schott’s plausible factual allegation about Building Salt Lake is not contradicted by the webpage. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1105 (10th Cir. 2017).
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B. Procedural Background
Schott sued in the District of Utah on January 22, 2025, asserting four claims
under 42 U.S.C. § 1983. He challenged the constitutionality of the 2025 policy and
sought declaratory and injunctive relief. Schott named Musselman, Peterson,
Osborne, and Thomas as defendants, in their individual and official capacities. He
argued Musselman and Peterson violated the First and Fourteenth Amendments by
refusing to grant him a credential, and he argued Osborne and Thomas likewise
violated those amendments by denying his appeal. Schott also filed a motion for a
temporary restraining order seeking to require the Legislature to issue him a
credential for the ongoing 2025 legislative session.
After a hearing, the district court denied Schott’s motion for a TRO and
granted him leave to amend his complaint. Schott filed his operative Amended
Complaint on February 26, 2025, along with a motion for a preliminary injunction.
Schott challenged the policy with five § 1983 claims under the First and Fourteenth
Amendments: (1) as-applied viewpoint discrimination; (2) facial viewpoint
discrimination; (3) retaliation; (4) prior restraint; and (5) vagueness.
The Legislature subsequently moved to dismiss Schott’s claims. The district
court dismissed all five counts and denied Schott’s preliminary-injunction motion as
moot. Schott appealed.
II. Discussion
Schott contends that the district court erred in dismissing his complaint and
denying his motion for a preliminary injunction as moot. We review a district court’s
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Rule 12(b)(6) dismissal de novo. See Green Room LLC v. Wyoming, 157 F.4th 1196,
1205 (10th Cir. 2025). “We must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most favorable to the plaintiff.”
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks
omitted). We must then determine whether those “well-pleaded factual
allegations . . . plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). We do not “weigh potential evidence that the parties might
present at trial”; we “assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” 3 Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009) (emphasis added) (quotation marks omitted).
See also Alvarado, 493 F.3d at 1215 (“[A] court should consider no evidence beyond
the pleadings on a Rule 12(b)(6) motion to dismiss . . . .”).
A. As-Applied Viewpoint Discrimination
Schott’s central claim is that the Legislature discriminated against him based
on the views he expressed in his reporting when it denied him a credential for the
3
In its ruling, the district court relied on individual defendants’ declarations attached to the Legislature’s motion to dismiss. See, e.g., App., Vol. II at 247 n.16 (citing Declaration of Andrea Peterson). To justify that reliance, the district court cited precedent allowing a court to consider evidence outside the complaint when a defendant brings a factual attack under Rule 12(b)(1). See id. at 246 n.3 (citing Bell Helicopter Textrox, Inc. v. Heliqwest Int’l, Ltd., 385 F.3d 1291, 1295 (10th Cir. 2004)). But those precedents are inapplicable to this Rule 12(b)(6) challenge. To the extent that the district relied on evidence outside the complaint to dismiss Schott’s claims, we must reverse unless “any error on the part of the district court in not excluding [the Legislature’s evidence] from the motion to dismiss was harmless.” Alvarado, 493 F.3d at 1216.
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2025 legislative session. 4 “The Supreme Court has articulated a three-step
framework to be used when analyzing restrictions on private speech on government
property.” Wells v. City and County of Denver, 257 F.3d 1132, 1138 (10th Cir. 2001)
(citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797
(1985)). “First, the court must determine whether the speech at issue is protected by
the First Amendment.” Id. “If so, the court must then ‘identify the nature of the
forum, because the extent to which the Government may limit access depends on
whether the forum is public or nonpublic.’” Id. at 1138–39 (quoting Cornelius, 473
U.S. at 797). “Third, the court ‘must assess whether the justifications for exclusion
from the relevant forum satisfy the requisite standard . . . .’” Id. at 1139 (quoting
Cornelius, 473 U.S. at 797). The requisite standard in this case requires the policy to
be both reasonable and viewpoint neutral. See Cornelius, 473 U.S. at 806.
Before addressing whether the speech at issue is protected by the First
Amendment, we first consider the nature of the forum that Utah created under the
media credentialing policy because it informs our analysis of the first prong. Schott
4
Schott also asserts under this claim that the Legislature’s policy discriminates “on the basis of content . . . as applied” to him. App., Vol. I at 34. “A content-based regulation ‘target[s] speech based on its communicative content,’ restricting discussion of a subject matter or topic.” Vidal v. Elster, 602 U.S. 286, 292–93 (2024) (alteration in original) (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)). But in both a limited public forum and a nonpublic forum, the government may engage in “content discrimination . . . if it preserves the purposes of that limited forum . . . .” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). In any event, because we conclude the district court erred in dismissing Schott’s as-applied viewpoint challenge we need not address Schott’s allegation of as-applied content discrimination.
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alleges Utah’s policy has created a limited public forum. Limited public forums are
tangible or intangible spaces the government opens to “certain groups or for the
discussion of certain topics.” Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819, 829 (1995). The Legislature asserts its policy is instead a nonpublic forum
but acknowledges the difference between the two forums is immaterial because the
legal standards are the same. A nonpublic forum is “where the government is acting
as a proprietor, managing its internal operations.” Walker v. Tex. Div., Sons of
Confederate Veterans, Inc., 576 U.S. 200, 215 (2015) (quotation marks omitted).
We need not decide between whether Utah’s credentialing policy created a
limited public forum versus a nonpublic forum. 5 We resolve this appeal by
concluding the policy formed one or the other because in either forum the legal
standard is the same: In both limited public and nonpublic forums, speaker-based
speech restrictions must be both viewpoint neutral and “reasonable in light of the
purpose served by the forum . . . .” Cornelius, 473 U.S. at 806; see also
Rosenberger, 515 U.S. at 829.
Next, we turn to whether the policy impinges on protected speech.
5
Other circuits have found similar credentialing schemes, such as “the White House Press Area,” to be nonpublic forums because the government maintained “selective access for individual speakers” inside a government building. Ateba v. Leavitt, 133 F.4th 114, 121–22 (D.C. Cir. 2025) (quotation marks omitted); see also John K. MacIver Inst. for Pub. Pol’y, Inc. v. Evers, 994 F.3d 602, 610 (7th Cir. 2021) (concluding “a limited-access press conference” was “a non-public forum”). But see TGP Commc’ns, LLC v. Sellers, No. 22-16826, 2022 WL 17484331, at *4, 6 (9th Cir. Dec. 5, 2022) (press policy created a limited public forum).
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1. Protected Speech
The district court construed that at “the heart of [Schott’s viewpoint
discrimination] claims is an assertion of an unequivocal right to gather news.” App.,
Vol. II at 255. It cited our decision in Smith v. Plati to conclude that “‘there is no
general First Amendment right of access to all sources of information within
governmental control,’ and the press does not have a ‘special right of access to
government information not available to the public.’” Id. at 257 (quoting Smith v.
Plati, 258 F.3d 1167, 1178 (10th Cir. 2001)). To dismiss Schott’s claim that the
policy denies him access equal to the rights of other credentialed media, the district
court again relied on Smith to conclude that “the First Amendment does not
encompass a right to ‘resources . . . routinely given to other media . . . .’” Id. at 258
(quoting 258 F.3d at 1177–78). The district court accordingly held Schott failed to
allege infringement of protected speech and dismissed both viewpoint discrimination
claims on that basis.
We disagree with this assessment of the right Schott seeks to vindicate. Schott
asserts neither a right to newsgathering nor a right of equal access to all information
the Legislature provides other media. Rather, he alleges the Legislature blocked his
access to a government-created forum because of his viewpoint. See App., Vol. I at
31 (alleging the policy created a “limited public forum” and “[the Legislature] cannot
deny [him] equal access to media designated areas or editorial discretion unless the
2025 Credential Policy is reasonable in light of the forum’s purpose and viewpoint
neutral”). A right to such access is well-established. See, e.g., Perry Educ. Ass’n v.
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Perry Loc. Educators’ Ass’n, 460 U.S. 37, 48 (1983) (explaining that by forming “a
‘limited’ public forum” the government creates a “constitutional right of access” that
“extend[s] to other entities of a similar character”).
Our decision in Smith v. Plati does not control this case because the plaintiff
there asserted different rights and, unlike Schott, did not allege the government had
created a limited public or nonpublic forum. In that case, Smith operated a non-profit
website dedicated to covering the University of Colorado’s athletic teams. Smith,
258 F.3d at 1172. Smith alleged the University believed his website was “in some
way in competition with [the University’s own] website,” so it did “everything
possible to interfere” with his ability to gather news concerning the school’s athletic
teams. Id. Smith alleged the University barred him from various athletic facilities,
denied him Athletic Department resources “routinely given to other media,” and
denied him “treatment as ‘media’ or ‘press.’” Id. Smith asserted two claims relevant
here. First, he alleged that there was “some sort of right to newsgathering” protected
by the First Amendment, which “the University violated by declining to provide him
certain information about its varsity athletic programs.” Id. at 1177 (emphasis
added). We rejected that claim because there is no constitutional “right of access to
University athletic information . . . as a member of either the public or the press.” Id.
at 1178. Second, Smith sought mandamus under Colorado law requiring the
University to give him “equal access to all information given to other members of the
press.” Id. (emphasis added). We held that “under Colorado law mandamus does not
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lie to compel [the University] to treat Smith like all other members of the media.” Id.
at 1179.
Schott’s claims are distinguishable. Unlike Smith, who asserted a “right of
access to news sources,” id. at 1178 (quotation marks omitted), Schott does not assert
a broad right to newsgathering. And unlike Smith’s mandamus claim for “equal
access” to the same information that the University provided to other media
members, id., Schott merely seeks access to a state-created forum under reasonable
and viewpoint-neutral criteria. Further, in Smith we did not consider whether the
University had created a government forum. Smith v. Plati is therefore inapt.
Moreover, at least four other circuits have recognized the same protected
speech Schott seeks to vindicate. The Second, Seventh, Ninth, and D.C. Circuits
have each concluded that if the government opens government property to the press,
it cannot deny access to only some journalists based on their views. See, e.g., Am.
Broad. Cos. 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.”); John K. MacIver Inst. for Pub. Pol’y, Inc.
v. Evers, 994 F.3d 602, 610 (7th Cir. 2021) (“[T]he government may regulate access
[to a press conference] provided the regulations are reasonable and ‘not an effort to
suppress expression merely because public officials oppose the speaker’s view.’”
(quoting Perry Educ. Ass’n, 460 U.S. at 46)); TGP Commc’ns, LLC v. Sellers, No.
22-16826, 2022 WL 17484331, at *6 (9th Cir. Dec. 5, 2022) (“While reporters do not
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have an unrestricted right to go where they please in search of news, the elimination
of some reporters from an area which has been voluntarily opened to other reporters
for the purpose of news gathering presents a wholly different situation.” (citation
modified)); Associated Press v. Budowich, No. 25-5109, 2025 WL 1649265, at *1
(D.C. Cir. June 6, 2025) (“Because the White House has opened these press facilities
to all bona fide Washington-based journalists, hard passes may not be denied
arbitrarily or based on the content of a journalist’s speech.” (internal quotation marks
omitted)); Karem v. Trump, 960 F.3d 656, 665 (D.C. Cir. 2020) (“The denial of a
hard pass, implicates important first amendment rights.” (citation modified)).
The Legislature, however, responds that the Fourth Circuit has rejected a
“right of ‘equal access’” among the press. Aple. Br. at 21. Recognizing such a right,
the Legislature argues, would “confer[] a privileged First Amendment status on the
press” because it “would require that, in each and every circumstance where the
government made news available, it would have to give access to that information to
everyone on equal terms.” Id. (first emphasis added) (quoting Snyder v. Ringgold,
133 F.3d 917, 1998 WL 13528, at *4 (4th Cir. 1998) (unpublished)). “Accepting
[Schott’s] theory ‘would plant the seed of a constitutional case in virtually every
interchange between public official and press’” because “‘[p]ublic officials routinely
select among reporters when . . . providing access to nonpublic information.’” Id. at
22 (emphasis added) (quoting The Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 417–18
(4th Cir. 2006)).
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But the Legislature mistakes what is at issue. Schott is not alleging a broad
right of equal access to government information, he is seeking viewpoint-neutral
access to a government-created forum for journalists. The Fourth Circuit cases the
Legislature cites are thus inapplicable here. 6
Additionally, in making its slippery slope argument, the Legislature
misunderstands the nature of a limited public or nonpublic forum. In such forums,
the government necessarily (and permissibly) restricts speaker access by
discriminating based on content to further the forum’s purpose. See Rosenberger,
515 U.S. at 829. Here, the Legislature restricts speaker access on the basis of content
by granting media credentials to only political journalists. But in such forums, the
government cannot engage in viewpoint discrimination. See Cornelius, 473 U.S. at
6
The Legislature also argues the Fourth Circuit in Ehrlich and the Seventh Circuit in Evers rejected a journalist’s alleged right to “equal access.” Aple. Br. at 22. But neither case stands for that proposition. Ehrlich did not address what was a cognizable injury for a viewpoint-based challenge to a media credentialing policy but considered a claim for retaliation unrelated to forum analysis. 437 F.3d at 416; see also Ateba, 133 F.4th at 120 (“Relying on [Ehrlich], the government argues that withdrawing preferential access to government property or providing less access for some reporters to cover government officials does not implicate the First Amendment. But [Ehrlich did] not address [a] facial First Amendment challenge[] to a regulatory scheme, and instead consider[ed] claims of retaliation for protected activity.” (internal citations omitted)). And although the Seventh Circuit in Evers did reject the plaintiff’s broad “equal access” theory “that any restriction on someone acting as a member of the press must be subject to strict scrutiny,” it also concluded the press event was a nonpublic forum where the government could not engage in viewpoint discrimination as a means of selective access. 994 F.3d at 609, 612 (emphasis added). Accordingly, neither case clashes with the protected speech Schott seeks to vindicate here.
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806. For example, the Legislature could not grant credentials only to political
journalists with a conservative ideology.
The Legislature also disputes that Schott is harmed by being denied access to
the forum. It argues that its denial of a credential to Schott imposes only a de
minimis burden on him because it does not hinder his ability to report on the
legislative session; thus, Schott has not alleged infringement of protected speech. As
the Legislature puts it, “Schott maintains complete ‘access to sources of information
available to members of the general public’ even without a credential.” Aple. Br. at
16 (quoting Pell v. Procunier, 417 U.S. 817, 835 (1974)). But Schott alleges
otherwise. He says that without a press credential he does not have “the same news
gathering opportunities as are afforded to his colleagues in the media.” App., Vol. I
at 29 (emphasis added). The policy itself states that credentialed media enjoy
privileges, such as access to “some secure areas of the Capitol,” “the press room,”
and to “media availabilities and other press events with elected officials.” Id. at 69.
The public has no access to such areas and events.
The Legislature, however, argues that many media events that Schott alleges
he cannot attend in person are nevertheless available online via live streams, and thus
“Schott can freely gather without a credential the same news on the Legislature for
his reporting that he could with a credential.” Aple. Br. at 18–20. But as the Ninth
Circuit persuasively observed, “watching the press conference live streams, rather
than attend[ing] in person, [is not] a ‘de minimis’ harm . . . .” TGP Commc’ns, 2022
WL 17484331, at *6. The obvious problem is that Schott cannot ask legislative
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officials questions without attending press conferences in person. Taking Schott’s
factual assertions as true at this stage of litigation, it is plausible that without a media
credential his ability to gather news is meaningfully diminished compared to his
credentialed colleagues.
At bottom, the Legislature’s denial of a credential to Schott implicates his
constitutional right to access either a limited public or nonpublic forum free from
viewpoint discrimination. This is core protected First Amendment speech.
2. Viewpoint Discrimination
“When government creates [a limited public or nonpublic] forum, in either a
literal or metaphysical sense, some content- and speaker-based restrictions may be
allowed, . . . [but] viewpoint discrimination is forbidden.” Matal v. Tam, 582 U.S.
218, 243 (2017) (internal citations and quotation marks omitted). Viewpoint
discrimination is a “more blatant” and “egregious form of content discrimination.”
Rosenberger, 515 U.S. at 829. “A viewpoint-based regulation targets not merely a
subject matter, but particular views taken by speakers on a subject.” Vidal v. Elster,
602 U.S. 286, 293 (2024) (internal quotation marks omitted). Viewpoint
discrimination occurs when the government singles out speech “based on the specific
motivating ideology or the opinion or perspective of the speaker,” Reed v. Town of
Gilbert, 576 U.S. 155, 168 (2015) (emphasis added) (internal quotation marks
omitted), or “distinguishes between two opposed sets of ideas,” Iancu v. Brunetti,
588 U.S. 388, 394 (2019).
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When assessing an as-applied viewpoint challenge, we move past the facial
validity (or invalidity) of the government regulation and “look to the government’s
purpose as the threshold consideration.” Madsen v. Women’s Health Ctr., Inc., 512
U.S. 753, 763 (1994). “The government may not regulate [speech] based on
hostility—or favoritism—towards the underlying message expressed.” R.A.V. v. City
of St. Paul, 505 U.S. 377, 386 (1992). As a result, we ask whether the Legislature
“appl[ied] the policy in this case to [Schott] on the basis of [his] viewpoint.”
Hawkins v. City and County of Denver, 170 F.3d 1281, 1288 (10th Cir. 1999).
Other circuits have found as-applied viewpoint discrimination when the
government denied press credentials to a journalist because it determined the
journalist did not “seek the truth” in his reporting. TGP Commc’ns, LLC v. Sellers,
No. 22-16826, 2022 WL 17484331, at *5 (9th Cir. Dec. 5, 2022). See also
Associated Press v. Budowich, No. 25-5109, 2025 WL 1649265, at *1, 13 (D.C. Cir.
June 6, 2025) (declining to stay a preliminary injunction against the government’s
exclusion of the AP from the East Room of the White House, a nonpublic forum, due
to the AP’s “use [of] the name Gulf of Mexico in its Stylebook, rather than the
President’s preferred Gulf of America”). In TGP Communications, the Ninth Circuit
granted a motion for an injunction pending appeal for a journalist’s as-applied claim
that Maricopa County, Arizona denied him a press pass because of his viewpoints. 7
7
The Ninth Circuit did “not address [Appellants’] facial challenge” because it “conclude[d], at this preliminary juncture, that Appellants are likely to succeed on their First Amendment as-applied challenge . . . .” TGP Commc’ns, 2022 WL 17484331, at *3.
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The County originally denied the press pass because it concluded the journalist did
not meet the policy requirements of “journalistic integrity” and being a “bona fide
correspondent of repute in [his] profession.” TGP Commc’ns, 2022 WL 17484331, at
*2 (alteration in original). “But despite these stated reasons,” the Ninth Circuit found
“the evidence . . . strongly suggests that a predominant reason for the County denying
Plaintiffs a press pass was Conradson’s political views.” Id. at *4. In denying the
press pass, County officials criticized the journalist by stating he did not “seek the
truth” in his reporting, he “use[d] inflammatory and/or accusatory language, such as
‘Fake News Media,’” and his reporting “lack[ed] the journalistic integrity and
credibility required by the Press Pass criteria.” Id. at *5. The Ninth Circuit held, “It
is the County’s politically-tinged assessment of Conradson’s prior reporting that
appears to have led it to deny him a press pass.” Id.
Schott alleges the Legislature denied him a credential because of the critical
views he expressed in his reporting on members of the Legislature. The Legislature
contends that Schott’s claim of as-applied discrimination is “based only on [his]
allegations that his reporting angered [its policy decisionmakers].” Aple. Br. at 30.
This, the Legislature argues, is insufficient because “temporal proximity between the
protected speech and the alleged retaliatory conduct, without more, does not allow
for an inference of a retaliatory motive.” Id. (quoting Trant v. Oklahoma, 754 F.3d
1158, 1170 (10th Cir. 2014)). But Schott has alleged more than mere temporal
proximity. On top of alleging that (1) legislative officials publicly and privately
expressed their distaste and contempt for his reporting, Schott also alleges that (2) the
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Legislature applied the policy inconsistently by credentialing journalists from some
blogs and independent media that are similar to UPW, but denying his application,
and (3) the Legislature revised the policy to categorically exclude blogs and
independent media right after it revoked his credential and he started UPW. These
are not conclusory allegations. After crediting their veracity, we conclude it is
plausible the Legislature denied Schott’s credential application because of his views.
To be sure, the Legislature contests many of Schott’s allegations. But at the
motion-to-dismiss stage, we accept Schott’s factual assertions as true, and we do not
consider the Legislature’s factual arguments or its submitted evidence even if it
appears to contradict Schott’s allegations. See Alvarado, 493 F.3d at 1215.
For example, the Legislature argues that “[Schott’s] exchanges with
Defendants and legislative leadership” do not support his as-applied claim because
“Schott alleges no viewpoints expressed” in his reporting that angered the legislative
officials. Aple. Br. at 30–31. But viewpoint covers more than an individual’s
ideology or ideas on a particular subject matter—viewpoint includes the perspective
of the speaker and how he speaks. See Reed, 576 U.S. at 168; Chiles v. Salazar, 146
S. Ct. 1010, 1021 (2026) (“[T]he First Amendment protects the inalienable right of
every individual to decide for himself how best to speak.” (emphasis added) (internal
quotation marks omitted)). We “use the term ‘viewpoint’ discrimination in a broad
sense”; government action that applies “evenhandedly” to “both sides of every
possible issue” may still be viewpoint-based if it discriminates against the way in
which a speaker communicates his ideas. Matal, 582 U.S. at 243.
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Schott alleged that legislative officials expressed displeasure with the
substance of his reporting as well as the way he reported the news: they criticized
him for lacking ethical standards, engaging in inaccurate reporting, lacking
professionalism, and not being a real journalist or media member. These factual
allegations are similar to the County’s “politically-tinged assessment of [the
journalist’s] prior reporting” in TGP Communications, where the government
accused the journalist of lacking “journalistic integrity and credibility” and “us[ing]
inflammatory and/or accusatory language[.]” 2022 WL 17484331, at *5. Schott’s
allegations plausibly show “that a predominant reason for the [Legislature] denying
[him] a press [credential] was the viewpoint expressed in his writings.” Id. We
agree with the Ninth Circuit that this “type of viewpoint-based discrimination is
exactly what the First Amendment protects against.” Id.
To dispute Schott’s allegations of inconsistent application, the Legislature
explains why it granted credentials to other journalists that have similar editorial
structures to UPW. For instance, the Legislature argues that even though Utah News
Dispatch calls itself “independent” it is not “independent media” under the policy
because it is affiliated with another media organization. Aple. Br. at 33. The
Legislature also argues that Schott’s allegations that credential holders from Davis
Journal and Utah Policy are self-edited like him, are insufficient because he did not
allege supporting facts “concerning those entities’ editorial structure, oversight, or
practices.” Id. at 33–34.
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And finally, the Legislature contends the fact that it denied other “selfsupervised applicant[s] like Schott” demonstrates it did not deny his application
because of his views. Id. at 34. But the Legislature is merely seeking to contradict
Schott’s factual allegations. 8 Schott alleges the Legislature granted credentials to
other journalists that are independent and self-edited—the truth of whether those
comparators are actually “blogs” or “independent media” under the policy are factual
questions not up for debate at the motion-to-dismiss stage.
As for Schott’s allegation that the Legislature altered its policy to target him,
the Legislature argues the 2025 policy revision was merely “a continuation of prior
limitations . . . .” Aple. Br. at 30 (quoting Supp. App. at 97). But that is a factual
dispute and Schott has alleged otherwise. To dispute Schott’s allegation, the
Legislature quotes the district court’s factual finding from the hearing on Schott’s
motion for a temporary restraining order. We do not consider the district court’s
factual findings from a TRO hearing when reviewing its Rule 12(b)(6) dismissal. See
Alvarado, 493 F.3d at 1215; Oxford House, Inc. v. Township of North Bergen, 158
F.4th 486, 495–96 (3d Cir. 2025) (“[T]he denial of a preliminary injunction does not
necessarily provide guidance as to what would be necessary for [a plaintiff] to
sufficiently state a claim.” (internal quotation marks omitted)).
8
To the extent that the Legislature seeks to rely on Declarations that it filed with its motion to dismiss and opposition to Schott’s injunction motion, we do not consider such outside evidence. See Alvarado, 493 F.3d at 1215.
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Schott alleged that during the 2024 session, while he was working for The Salt
Lake Tribune, various legislative officials criticized his reporting and qualifications.
See App., Vol. I at 21–22. Then once he became an independent journalist, he
alleged the Legislature revoked his 2024 credential—even though the 2024 policy did
not yet categorically exclude blogs and independent media. See App., Vol. I at 66
(“Bloggers representing a legitimate independent news organization may become
credentialed under limited, rare circumstances.” (emphasis added)). After which the
Legislature revised its policy to wholly exclude independent media like UPW.
Considering these facts as true and in a light favorable to Schott, it is plausible the
Legislature revised its policy to target him.
In sum, we conclude that Schott’s well-pleaded factual allegations are
sufficient to show the Legislature plausibly discriminated against him because of his
viewpoints. The district court therefore erred in dismissing Schott’s as-applied
viewpoint discrimination claim, and we remand for further proceedings.
B. Facial Viewpoint Discrimination
Schott also argues that the policy is facially unconstitutional because it is both
unreasonable and viewpoint-based. 9 He contends the policy discriminates based on
9
Like his as-applied claim, Schott argues the policy also “discriminates against speech and press on the basis of content . . . on [its] face . . . .” App., Vol. at 34 (emphasis added). But as we noted, content discrimination is permissible in both a limited public forum and a nonpublic forum if it preserves the purposes of that forum. See supra n.4 (citing Rosenberger, 515 U.S. at 829). We thus direct the district court upon remand to also determine whether Schott’s allegation of content discrimination is permissible under Rosenberger.
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viewpoint because it allows the government to deny “credentials based on [a
reporter’s] use of editorial discretion to present [his] news pieces in a particular
way,” enabling it to “punish[] a media organization for not being affiliated with
larger media organizations, or for” choosing not “to have an editor.” App., Vol. I at
33. We evaluate his facial viewpoint claim under the same three-step framework as
his as-applied challenge. See Cornelius, 473 U.S. at 797.
The district court dismissed Schott’s facial claim at step one, just as it did for
his as-applied challenge. But as we explained, Schott has adequately alleged the
policy violates his right to access either a limited public or nonpublic forum which is
protected speech under the First Amendment. Accordingly, the district court also
erred in prematurely dismissing Schott’s facial claim.
“When the district court has not reached a required issue, we typically permit
that court to tackle the issue in the first instance.” Lyn M. v. Premera Blue Cross,
966 F.3d 1061, 1070 (10th Cir. 2020). In accordance with that practice, we remand
to the district court for it to determine whether the policy, on its face, is unreasonable
or discriminates based on viewpoint. See Rosenberger, 515 U.S. at 829 (“Once it has
opened a limited forum . . . [t]he State may not exclude speech where its distinction
is not reasonable in light of the purpose served by the forum, nor may it discriminate
against speech on the basis of its viewpoint.” (internal citations and quotation marks
omitted)).
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C. First Amendment Retaliation
Schott also alleges the Legislature denied his credential application in
retaliation for his critical reporting of various legislative officials. To survive a
motion to dismiss a First Amendment retaliation claim, a plaintiff must plausibly
allege that: (1) he “engaged in [a] constitutionally protected activity”; (2) the
defendant’s “actions caused [him] to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity”; and (3) the defendant’s
“adverse action was substantially motivated as a response to the plaintiff’s exercise
of constitutionally protected conduct.” Trant, 754 F.3d at 1169–70.
The Legislature does not dispute that Schott’s allegation satisfies the first
element because his critical reporting is a constitutionally protected activity. See
Baumgartner v. United States, 322 U.S. 665, 673–74 (1944) (Frankfurter, J.) (“One
of the prerogatives of American citizenship is the right to criticize public men and
measures . . . .”). The district court, however, found that Schott’s claim failed to
satisfy the second element—that the Legislature’s denial of a media credential would
“chill a person of ordinary firmness” from continuing to engage in critical reporting
of legislative officials. The district court concluded this since “[Schott] in fact
reported on the 2025 legislative session without a media credential” and because
members of the public without a credential can still observe the legislative session.
App., Vol. II at 260.
We agree with the district court that Schott has not plausibly alleged objective
chill under the second step. Schott’s Amended Complaint merely alleges the
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Legislature’s denial of his credential application “would ‘chill a person of ordinary
firmness’ from continuing to produce news content critical of the Utah Legislature or
its leaders.” App., Vol. I at 37. This is a conclusory allegation that is insufficient to
plausibly overcome a motion to dismiss. See Iqbal, 556 U.S. at 678 (“[W]e are not
bound to accept as true a legal conclusion couched as a factual allegation.” (internal
quotation marks omitted)). Further, Schott’s own factual allegation that he continued
to report on the Legislature without a credential undercuts his argument at step two.
Schott also argues the district court erred by assessing the “chilling effect” at
step two under a subjective standard, rather than an objective one. See Shero v. City
of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007) (“[O]ur standard for evaluating th[e]
chilling effect on speech is objective.”). But courts may nevertheless consider a
plaintiff’s “persistence in maintaining his” speech as “evidence that [a defendant’s]
actions did not [objectively chill or] prevent such private speech.” Smith, 258 F.3d at
1177; see also Ehrlich, 437 F.3d at 419 (“[T]he plaintiff’s actual response to the
retaliatory conduct provides some evidence of the tendency of that conduct to chill
First Amendment activity.” (quotation marks omitted)).
As a result, Schott’s retaliation claim fails at step two. The district court
correctly dismissed this claim.
D. Prior Restraint
Schott next raises a facial prior-restraint challenge against the policy by
arguing its terms are so broad that they give the Legislature unbridled discretion to
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deny a credential. He points to the policy’s “reputable” and code of “ethics”
requirements.
“A prior restraint on speech is a law, regulation or judicial order that
suppresses speech . . . on the basis of the speech’s content and in advance of its
actual expression.” Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 42 (10th Cir.
2013) (quotation marks omitted). “[I]n the area of free expression a licensing statute
placing unbridled discretion in the hands of a government official or agency
constitutes a prior restraint and may result in censorship.” City of Lakewood v. Plain
Dealer Pub. Co., 486 U.S. 750, 757 (1988).
Schott’s argument is attractive at first glance. Exclusionary terms in the policy
like “reputable” and code of “ethics” are broad and require subjective judgments to
apply. And although Schott does not rely on this language in his complaint, the
policy’s qualifier that “[c]redentials may be denied or revoked for any reason” also
indicates the policy affords the Legislature unbridled discretion. App., Vol. I at 70
(emphasis added).
But a plaintiff may only raise a facial prior-restraint challenge against a
licensing scheme when it regulates “expressive activity.” City of Lakewood, 486 U.S.
at 755 (emphasis added). “The law must have a close enough nexus to expression, or
conduct commonly associated with expression, to pose a real and substantial threat of
the identified censorship risks.” Id. at 759. “[L]aws of general application that are
[(1)] not aimed at conduct commonly associated with expression and [(2)] do not
permit licensing determinations to be made on the basis of ongoing expression or the
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words about to be spoken, carry with them little danger of censorship.” Id. at 760–
61.
To determine whether a licensing scheme regulates expression or conduct
commonly associated with expression, the relevant inquiry asks what action the
challenged scheme regulates. Restrictions on speaking or distributing a message are
susceptible to facial prior-restraint challenges. See, e.g., id. at 769 (circulation
restriction on newsracks); Niemotko v. Maryland, 340 U.S. 268, 272 (1951)
(ordinance against speaking in a park without a license); Flower v. United States, 407
U.S. 197, 92 (1972) (restriction on leafleting); Police Dep’t of City of Chi. v. Mosley,
408 U.S. 92, 95 (1972) (ordinance restricting picketing). But restrictions on speaker
access to government spaces—even if based on a speaker’s message—are not; such
licensing schemes are what First Amendment forum-based challenges are for. See
The Tool Box v. Ogden City Corp., 355 F.3d 1236, 1242–43 (10th Cir. 2004) (en
banc); Green v. U.S. Dept. of Justice, 111 F.4th 81, 102–04 (D.C. Cir. 2024)
(restriction “akin to a routine prohibition on trespass” was “not conduct closely
associated with expression” because it regulated conduct “not necessarily associated
with speech” and “applie[d] equally to would-be speakers” (internal quotation marks
omitted)).
As we have explained, Utah’s credentialing policy regulates access to a
government-created forum. And although the policy might implicate speech by
restricting Schott’s right to access that forum, it does not directly regulate
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expression. While this is protected speech under Schott’s forum-based viewpoint
claims, it does not support a facial prior-restraint challenge under our precedents.
In The Tool Box, an en banc panel of this court found a city’s building
permitting scheme was not amenable to a facial prior-restraint challenge because it
“lack[ed] the requisite nexus” to expression. 355 F.3d at 1242. The plaintiff sought
a building permit to open a nude-dancing establishment, but the city denied his
application because his proposed establishment conflicted with the city’s protective
covenants that required the land to maintain a “wholesome” environment. Id. at
1239. The plaintiff argued that “wholesome” was such a vague standard that it
conferred excessive discretion and was thus a prior restraint on his desire to promote
constitutionally protected expression (nude dancing). Id. at 1240–41. We rejected
his facial challenge because the law applied to “every business that seeks to locate in
the Industrial Park” and the covenants were “not aimed at conduct commonly
associated with expression . . . .” Id. at 1242 (internal quotation marks omitted).
Like the permitting scheme in The Tool Box, the media credentialing policy is
a law of general application: It applies to all journalists that seek a press credential.
And the policy does not regulate expression; it regulates access to a limited public or
nonpublic forum. It does not control “who may speak and who may not”—Schott is
free to report whatever he wants with or without a credential. City of Lakewood, 486
U.S. at 763. And he may still speak in the Capitol during the legislative session as a
member of the public. Therefore, the policy’s access restrictions are more akin to the
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building permitting scheme in The Tool Box rather than the restriction on distribution
of a message (newspaper circulation) in City of Lakewood.
Government restrictions that only incidentally regulate expression are not
amenable to facial prior-restraint attacks. See The Tool Box, 355 F.3d at 1242–43.
Although the Legislature might look to Schott’s speech to determine whether he is
“reputable,” that does not mean the policy regulates expression or conduct associated
with expression. Id. (permitting scheme did not regulate expression even though the
city looked to the building applicant’s speech to determine whether it was
“wholesome”); cf. id. at 1244 (Porfilio, J., dissenting) (“That the City made its
decision on the basis of protected speech is not even in controversy here. Nude
dancing is protected expression, even if marginally so. Additionally, an analysis of
the Covenants themselves underscores that the Tool Box permit was denied because
the ruling officials believed, without statutory direction, nude dancing is not
‘wholesome.’”). Because the policy regulates access, it does not have a “close
enough nexus to expression” and Schott cannot raise a facial prior-restraint
challenge. City of Lakewood, 486 U.S. at 759. See id. at 761 (“[A] law requiring
building permits is rarely effective as a means of censorship. To be sure, on rare
occasion an opportunity for censorship will exist, such as when an unpopular
newspaper seeks to build a new plant. But such laws provide too blunt a censorship
instrument to warrant judicial intervention prior to an allegation of actual misuse.”).
Nor does the policy “permit” the Legislature to make credentialing decisions
“on the basis of ongoing expression . . . .” Id. at 761. “[W]hen the Court [in City of
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Lakewood] refers to licensing laws that ‘permit’ decisions to be made on the basis of
expression, it must be referring to laws that by their explicit language affirmatively
permit expression-based decisions.” The Tool Box, 355 F.3d at 1243 (emphasis
added). See id. (“Perhaps one could say that the covenants are vague enough that
they could be used to deny a license (a building permit) because of ongoing or
anticipated expression. But that is not what the Lakewood Court meant by the quoted
language.”).
Although the media credentialing policy here does grant the Legislature wide
discretion (it can deny a pass “for any reason”), and some of its exclusionary terms
(e.g., “reputable” or “ethics”) are vague and subjective, the policy does not explicitly
permit expression-based decisions. Thus, it does not permit credentialing decisions
based on ongoing expression.
In sum, the policy is a law of general application that is not aimed at free
expression or expressive conduct, and it does not permit credentialing decisions to be
made on the basis of ongoing expression. Schott’s prior-restraint challenge therefore
fails. He does not allege the Legislature used its unbridled discretion to arbitrarily
deny him a press pass (e.g., “for any reason”); he alleges the policy as written
excluded him. See id. at 1243 (“Nothing prevented Tool Box from bringing an asapplied [prior-restraint] challenge to the Mayor’s decision; it simply chose not to.”).
The district court did not err in dismissing Schott’s facial prior-restraint claim.
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E. Vagueness
Schott alleges as his final claim that various terms within the media
credentialing policy, such as “established,” “reputable,” “blog,” “independent,” and
“freelance,” are “unduly vague.” App., Vol. I at 39. As a result, he says that he
“cannot understand how [he] could qualify for a press credential under these vague
criteria.” Id. at 40.
“Vagueness doctrine is an outgrowth not of the First Amendment, but of the
Due Process Clause of the Fifth Amendment.” United States v. Williams, 553 U.S.
285, 304 (2008). Void-for-vagueness arises when the government “tak[es] away
someone’s life, liberty, or property under a criminal law so vague that it fails to give
ordinary people fair notice of the conduct it punishes, or so standardless that it invites
arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015). “While
a plaintiff faces a significant challenge to prove vagueness, . . . when a ‘law
interferes with the right of free speech or of association, a more stringent vagueness
test should apply.’” Wyo. Gun Owners v. Gray, 83 F.4th 1224, 1234 (10th Cir. 2023)
(quoting Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498
(1982)).
But “a plaintiff whose speech is clearly proscribed cannot raise a successful
vagueness claim under the Due Process Clause . . . for lack of notice.” Holder v.
Humanitarian L. Project, 561 U.S. 1, 20 (2010). “And he certainly cannot do so
based on the speech of others.” Id.
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The Legislature contends that vagueness doctrine does not apply to the policy
because it “is not a law and does not take away [Schott’s] life, liberty, or property.”
Aple. Br. at 42. It claims Schott has “not provided any authority establishing that
[vagueness] doctrine necessarily applies to credentialing policies like those at issue
here.” Id. (quotation marks omitted). Alternatively, the Legislature argues the policy
is not vague. The district court dismissed this claim because it concluded the policy
was not vague and thus did not address the Legislature’s first argument.
To begin with, we do not see why void-for-vagueness could not apply to the
policy here—it is a government restriction, and it implicates a liberty interest. See,
e.g., Sherrill v. Knight, 569 F.2d 124, 130–31 (D.C. Cir. 1977) (“[T]he interest of a
bona fide Washington correspondent in obtaining a White House press pass is
protected by the first amendment. This first amendment interest undoubtedly
qualifies as liberty which may not be denied without due process of law under the
fifth amendment.”).
But we need not address either issue: Schott’s void-for-vagueness claim fails
before it begins. Although he styled his complaint as an as-applied vagueness
challenge, the policy clearly applied to Schott; he even acknowledged that he
anticipated the new 2025 policy would “shut [him] out.” App., Vol. II at 264 &
n.136. See also App., Vol. I at 35 (alleging the Legislature revised its policy
specifically intending “to target” him). Schott thus understood the policy excluded
him, and he cannot raise a vagueness claim based on the speech of others. See
Humanitarian L. Project, 561 U.S. at 20.
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We therefore affirm the district court’s dismissal of his vagueness claim.
III. Conclusion
For these reasons, we reverse the district court’s dismissal of Schott’s facial
and as-applied viewpoint claims and remand for further proceedings on those counts
consistent with this opinion. We reverse the district court’s denial of the preliminary
injunction motion as moot on those claims. We affirm the district court’s dismissal
of Schott’s retaliation, prior-restraint, and vagueness claims.
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25-4124, Utah Political Watch, Inc., et al. v. Musselman, et al.
TYMKOVICH, Circuit Judge, concurring.
We are remanding to the district court for it to review Schott’s facial
viewpoint claim. I write separately, however, to share several observations on
whether the policy is facially viewpoint-based and to discuss the role that history and
tradition might play in making that determination.
The district court briefly addressed the merits of Schott’s facial claim when it
denied his motion for a TRO. It concluded “[t]he legislature’s 2025 credentialing
policy draws no distinctions based upon the viewpoint of the speaker” because “[t]he
criteria do not govern what can be published, but how information is disseminated.”
Id. at 91–92.
But as we outlined, viewpoint covers more than an individual’s particular
thoughts and ideas on a given topic; it also covers his decision on “how best to
speak” and express those ideas. Chiles v. Salazar, 146 S. Ct. 1010, 1021 (2026)
(emphasis added) (quotation marks omitted). For example, in Matal v. Tam the
Supreme Court held the Lanham Act’s bar on granting disparaging trademarks was
viewpoint discrimination because “[g]iving offense is a viewpoint.” 582 U.S. 218,
243 (2017). “The First Amendment’s viewpoint neutrality principle protects more
than the right to identify with a particular side.” Id. at 249 (Kennedy, J., concurring).
“It protects the right to create and present arguments for particular positions in
particular ways, as the speaker chooses.” Id. (emphasis added). And when the
exclusionary term of a government policy “distinguishes between two opposed sets
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of ideas,” it “results in viewpoint-discriminatory application.” Iancu v. Brunetti, 588
U.S. 388, 395 (2019). See id. at 394 (holding the Lanham Act’s bar on “immoral or
scandalous” trademarks to be “viewpoint-based”).
The media credentialing policy’s blanket exclusion of independent media
appears to me to be viewpoint-based because it bars access based on a journalist’s
editorial choice to speak in an unedited and institutionally unaffiliated manner. See
Baumgartner v. United States, 322 U.S. 665, 673–74 (1944) (Frankfurter, J.) (“One
of the prerogatives of American citizenship is the right to criticize public men and
measures—and that means not only informed and responsible criticism but the
freedom to speak foolishly and without moderation.” (emphasis added)). This
“independent” viewpoint is opposed to a moderated and corporately affiliated
perspective and mode of speech. Thus, a journalist from an independent media
organization communicates his ideas through his own unfiltered viewpoint by
choosing not to be subject to anyone else’s editorial control.
Additionally, the policy’s terms that exclude journalists from organizations
that are not “reputable” and journalists that do not follow a code of “ethics” are
strikingly similar to the Lanham Act’s doomed “immoral or scandalous” criterion.
See Iancu, 588 U.S. at 394 (noting “a typical definition” of the viewpoint-based term
“scandalous” is “disreputable” and finding the restriction against “immoral”—i.e.,
unethical—speech to be viewpoint-based). The Legislature’s policy thus
“distinguishes between two opposed sets of ideas: those aligned with conventional
moral standards [(i.e., a code of “ethics”)] and those hostile to them; those inducing
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societal nods of approval [(i.e., “reputable”)] and those provoking offense and
condemnation.” Id. “The [policy] favors the former, and disfavors the latter”—
categorically placing independent media in the disfavored set of ideas. Id. Under
this distinction, the policy seemingly permits the government to act as the arbiter of
whether a news organization’s speech is reputable or ethical. That, however, would
be something the government cannot do. See Iancu, 588 U.S. at 400 (Alito, J.,
concurring) (“[A] law banning speech deemed by government officials to be
‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends.” (emphasis
added)); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
(government officials cannot “prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion”).
The Legislature nevertheless insists its policy is neutral because it merely
imposes speaker-based restrictions and thus excludes disreputable and unethical
speakers, not speech. See Aple. Br. at 29 (“[The policy’s] criteria are ‘based on the
status of the respective’ credential holder ‘rather than their views.’” (quoting Perry
Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 49 (1983))).
But “[c]haracterizing a distinction as speaker based is only the beginning—not
the end—of the inquiry.” Reed v. Town of Gilbert, 576 U.S. 155, 170 (2015). A
speaker-based restriction is unconstitutional if “[i]n its practical operation” it engages
in the “official suppression of ideas.” R.A.V. v. City of St. Paul, 505 U.S. 377, 391,
395 (1992); see also Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 645 (1994)
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(“[S]peaker distinctions” cannot be used as “a subtle means of exercising a
[viewpoint] preference . . . .”).
I am skeptical that the Legislature’s speaker-speech distinction holds up in
practical application: For the Legislature to judge whether a speaker is “reputable” or
“ethical,” it must evaluate the speaker’s speech. Is UPW disreputable because Schott
does not have “an editor and is the final arbiter and executioner of his stories”; or is
UPW disreputable because Schott’s speech is unedited, unmoderated, and conveyed
in a “stream of consciousness” manner? App., Vol. I at 26. The Legislature’s
speaker-speech distinction seems to be one without a difference: A news organization
is “reputable” because of its speech. See Chiles, 146 S. Ct. at 1023 (“The First
Amendment is no word game. And the rights it protects cannot be renamed away or
their protections nullified by mere labels.” (internal quotation marks omitted)); cf.
Carson v. Makin, 596 U.S. 767, 788 (2022) (“[A]ny status-use distinction lacks a
meaningful application not only in theory, but in practice as well.”).
And my conclusion that the policy appears to be viewpoint-based is buttressed
by the First Amendment’s adoption history and the founding traditions it furthered.
The Supreme Court has recently incorporated an analysis of history and
tradition into its doctrine on various constitutional issues. See, e.g., United States v.
Texas, 599 U.S. 670 (2023) (Article III standing); Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507 (2022) (Establishment Clause); N.Y. State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022) (Second Amendment). But the Court has not explicitly extended
such analysis of the original meaning of the Speech and Press Clauses to its First
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Amendment jurisprudence. Some scholars argue this might be because “[a]fter a
century of academic debate, . . . the meanings of speech and press freedoms at the
Founding remain remarkably hazy.” Jud Campbell, Natural Rights and the First
Amendment, 127 Yale L.J. 246, 249 (2017).
Yet as recently as Vidal v. Elster, 602 U.S. 286 (2024), the Court relied on a
historical analysis to decide a free speech case. See 602 U.S. at 296 (holding the long
history and tradition of content-based restrictions for the Names Clause of the
Lanham Act justified its constitutionality). But because a majority of the Court could
not agree whether its historical analysis was a required part of its decision, it remains
unclear exactly what role history and tradition now plays in free speech doctrine. See
id. at 311 (Kavanaugh, J., concurring in part) (“In my view, a viewpoint-neutral,
content-based trademark restriction might well be constitutional even absent such a
historical pedigree.”); id. (Barrett, J., concurring in judgment) (“[T]he Court never
explains why hunting for historical forebears on a restriction-by-restriction basis is
the right way to analyze the constitutional question.”).
What is clear, however, is that history and tradition may inform the answer to
constitutional questions. Neither party meaningfully addresses the topic but Amici
devote much of their briefs to history and tradition. They persuasively argue that in
enacting the Speech and Press Clauses, the Framers were concerned that the
government might attempt to control the press—a term originally understood to
protect what we might now call independent journalists. See Eugene Volokh, The
Freedom of Speech and of the Press Clause, in The Heritage Guide to the
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Constitution 602 (3d ed. 2025) (“[T]he Free Press Clause . . . was enjoyed by all who
used printing presses to communicate to the public at large. . . . Professional
publishers and journalists were not seen as having any more constitutional rights than
everyone else had.” (emphasis added)).
For example, the history of the Press Clause shows that it created a “broad
right [for] ‘every citizen’ to publish his sentiments . . . , since at the time of the
founding there were no professional journalists in the modern sense of the word.”
Michael W. McConnell, Reconsidering Citizens United as a Press Clause Case, 123
Yale L.J. 412, 436 (2013) (emphasis added).
The Federalist—written by three non-journalists and
published in New York newspapers as occasional essays—is
the most famous example, but there were hundreds of others.
When the Founders spoke of the importance of “the press,”
they were not talking about professional news media, but
about the printing press, meaning the ability of people to
disseminate ideas easily and inexpensively to a broad public.
The licensing of the press, which was the great evil against
which the Amendment was directed, applied to books and
pamphlets as much as to newspapers. Indeed, pamphlets
were among the most important publications for the
influencing of public opinion. Thomas Paine’s Common
Sense, which he self-published, is a famous example. . . . To
confine freedom of the press to professional journalism . . .
would require shrinking—“abridging”—the scope of the
Clause, making its coverage narrower than at the time of the
Framing.
Id. at 436–38. And another scholar cites historical evidence to argue that viewpoint
discrimination by the government against all individuals has always been disfavored.
See Campbell, supra, at 255–56. (“[T]he Founders widely thought that the freedom
to make well-intentioned statements of one’s views belonged to a subset of natural
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rights, known as ‘unalienable’ natural rights, that could not be restricted in promotion
of the public good and thus fell outside legislative authority to curtail.”).
The history of the controversial Sedition Act of 1798 also reinforces my
conclusion that the First Amendment does not permit the government to judge the
legitimacy of the media. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 276 (1964)
(“Although the Sedition Act was never tested in this Court, the attack upon its
validity has carried the day in the court of history.”). The Sedition Act made it a
crime to “publish[] any false, scandalous and malicious writing or writings against
the government . . . .” 1 Stat. 596 (1798) (emphasis added) (expired 1801). James
Madison, the main drafter of the First Amendment, argued the Act was
unconstitutional. See James Madison, The Report of 1800, National Archives (Jan. 7,
1800) (“[The Sedition Act] exercises a power not delegated by the constitution.”).
Thomas Jefferson described the Act as a constitutional “nullity as absolute and as
palatable as if Congress had ordered us to fall down and worship a golden
image . . . .” Thomas Jefferson, Letter to Abigail Adams, National Archives (July 22,
1804). Like the concerns around the Sedition Act, Utah’s media credentialing policy
appears to hand the government the power to engage in viewpoint discrimination by
evaluating the truth and legitimacy of a journalist’s speech.
Amici also contend there is a long tradition in this country of allowing media
access—free from government-determined, viewpoint-based access requirements—to
legislative sessions. For example, in the First Congress, Representative Burke
introduced a resolution to remove journalists from the House floor who allegedly
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“misrepresented” debates. 1 Annals. of Cong. 952 (1789). Other congressional
members sharply criticized Burke’s proposal. See, e.g., id. at 954 (Representative
Hartley described it as “an attack upon the liberty of the press”); id. at 955 (James
Madison argued it was “improper to throw impediments in the way of such
information as the House had hitherto permitted”). Burke withdrew his resolution,
and ultimately, Congress concluded it was best to leave it to reporters themselves to
determine “the admission of such persons as thought themselves qualified . . . .” Id.
at 1097. See also Sarah Eckman, Cong. Rsch. Serv., R44816, Congressional News
Media and the House and Senate Press Galleries 1 (2017) (“Reporters have covered
Congress since its earliest sessions. . . . By the middle of the 1800s, each chamber
had established its own designated reporters’ gallery space. In 1877, the House and
Senate decided to create a committee of correspondents to oversee press gallery
membership and administration.”).
The Legislature has not argued that any countervailing history or tradition
justifies its policy. And though my brief historical analysis may not ultimately
control the viewpoint determination, I note that the histories and traditions of the
Speech and Press Clauses add weight to my initial conclusion that the media
credentialing policy is unconstitutional on its face.
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