The Wyoming Legislature's Free Speech Problem

David Iverson - February 20, 2023

Most politicians have, at best, a tenuous relationship with the First Amendment. They’ll climb to the mountaintop to make sure their voice is heard; but they’ll go to great lengths to conceal their activities from the public. The proverbial cigar smoke filled room with the incessant sound of clanking whiskey glasses is a reality in every state capitol. Deals are made behind closed doors and out of view of the public. It’s no wonder that we’re surprised when an elected official votes in an unexpected direction. That decision was made ahead of time. Our founders knew that the tendency toward secrecy was too great of a lure; and so, they created the First Amendment’s protection of a free press. There have been several incidents during this legislative session that call into question the Wyoming Legislature’s commitment to the First Amendment. More to the point, this session has proven that many of them prefer cigar and whiskey decision making to the bright sunlight of transparency.

On February 13, the House Judiciary Committee voted down SF56—a simple bill that ostensibly gave game wardens the ability to write trespassing tickets. The problem though is that, read strictly, it would also give them the authority to write tickets for corner-crossing—an issue that is before Wyoming courts right now. The vote infuriated one member of the committee, Barry Crago. He was visibly angry during testimony from sportsman; his comments verged on abuse of one witness. As he left the committee meeting he yelled at a lobbyist who had testified against the bill.

At the end of the day, the chairman of the committee Art Washut, arranged for a meeting of the House Judiciary Committee. It wasn’t noticed so the public could attend and was fully intended to be a “private” meeting.

If any governing body meets with a quorum of members, under the Wyoming Open Meetings Act, it must be open to the public and journalists. As I walked into committee room where Judiciary meets, Crago told me that it was a private meeting and then the chairman told me I had to leave. This is a direct violation of the Open Meetings Act. But it represents a larger problem—that politicians believe they can meet without the scrutinizing ear of the press.

During the meeting, the Ranking Member on the committee, Mark Jennings of Sheridan, was threatened with his committee assignment for his vote on SF56 by the chairman. Art Washut doesn’t have the power to carry through with his threat. But the threat itself is newsworthy in the sense that Washut’s constituents deserve to know how he behaves in Cheyenne. Every member of the House Judiciary Committee was in attendance, the meeting wasn’t noticed, the public wasn’t allowed to attend and the press was kicked out of the room. Clearly, these elected officials do not believe that the Constitution’s guarantee of a free press applies to them.

Then there was House Bill 91, the News Source Shield Law. Under current Wyoming law, a journalist can be forced to reveal his sources to a court. Without sources, journalists would only be able to report on what politicians tell them. It would be impossible to report on government corruption and the public would be kept in the dark. HB91 attempted to provide some level of protection to journalists. The bill had problems as all bills do: there was an exemption for defamation cases. Journalists are most often subpoenaed in those types of cases. There was also another exemption for cases of imminent harm. If a journalist had evidence that someone would be hurt by keeping confidentiality, he could be forced to reveal the source of that information.

HB91 wasn’t even brought up for debate in the House. Granted, there were a myriad of other issues that required the attention of lawmakers; but this one is also important. The First Amendment isn’t something that we can disregard when it becomes inconvenient. Our founders listed it first in the Bill of Rights for a Reason. The press is referred to as the fourth branch of government because it holds government accountable. Without it, elected officials would be able to do anything they want with no fear of being exposed. The Wyoming legislature needs to be more transparent and they must, in future sessions, make a serious effort to protect journalists—even the ones they don’t like.