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Trial to proceed over activists' exclusion from press conference

By The Associated Press
05.09.08

HELENA, Mont. — A trial should go forward on whether three conservationists were improperly excluded from a 2005 press conference at the Bitterroot National Forest's headquarters based on their views, a federal appeals court panel has ruled.

The case stems from a September 2005 news conference at which the U.S. Forest Service released an environmental review of a controversial timber sale. The event was held in forest supervisor Dave Bull's office in Hamilton.

Three members of the conservation group Friends of the Bitterroot — Stewart Brandborg, Larry Campbell and Jim Miller — say they were escorted from the press conference by armed Forest Service law enforcement officers. They later filed a lawsuit against the Forest Service and Bull in U.S. District Court in Missoula, arguing that their constitutional rights had been violated.

The Forest Service defended its decision to remove the men from the press conference, saying the event was intended for news media and invited guests, not the general public.

The press conference unveiled the final environmental-impact statement for the Middle East fuels-reduction project, which was authorized as part of President Bush's Healthy Forests initiative. Forest Service officials invited six Ravalli County residents who supported the agency's preferred alternative to meet with reporters.

Brandborg, Campbell and Miller have said their objections to the project included soil damage from heavy logging equipment and the clearcutting of old-growth timber.

The government asked U.S. District Judge Donald Molloy to dismiss the men's complaint against the Forest Service, saying federal agencies are immune from such claims. Molloy agreed but denied a similar motion to dismiss the complaint against Bull. The judge said the Forest Service had created a public forum at the press conference by facilitating the public's speech.

"Because the right to viewpoint neutrality in a designated public forum is clearly established, plaintiffs have stated a cognizable claim and Bull is not entitled to dismissal based on qualified immunity at this stage," Molloy ruled.

Bull appealed, and in a decision issued last week, a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld the Forest Service's right to allow only certain people to speak at its press conferences. But it sent the case back to Molloy for a hearing on whether kicking the three men out of the event amounted to viewpoint discrimination — a violation of their free speech.

"The exclusion of appellees from participation in a press conference, at which only proponents of the government's point of view were to speak, was not a violation of the First Amendment," the panel wrote. "The refusal to allow appellees to attend the press conference, on the other hand, may give rise to a claim under the First Amendment."

The three conservationists were pleased with the panel's ruling but expressed concern about government attempts to limit free speech.

"What we have been seeing recently in this country is our government excluding people who disagree from participation in public process," said Miller, president of Friends of the Bitterroot. "This compels us to pursue this case."

Betsy Griffing, Montana ACLU legal director, said the panel's decision was important because it affirmed the right of the individual to be part of the government process, regardless of the individual's political views.

"We all deserve a right to be heard and to participate in government, and cannot be excluded from that process simply because government officials might disagree with what we have to say," she said.

Attorney Matthew M. Collette with the U.S. Department of Justice, representing Bull, didn't return a call seeking comment.


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