Too few legal terms of art sound like exactly what they are; “viewpoint discrimination” is among the happily accessible exceptions. It’s a First Amendment thing, see, and courts have long cast the hairiest of retinas at government entities that disadvantage speech acts in public forums based solely on the speaker’s opinion or perspective.
Paul Kennedy, the feared and powerful Albuquerque-based attorney, recently struck a blow against the empire in this corner of jurisprudence, one that should bring out the pom-poms and confetti from those of us who prize Item No. 1 in the Bill of Rights. Kennedy’s seat at the plaintiffs’ table marks a welcome about-face on this issue—though he doesn’t think so—and I’ve asked for your attention in this space to mud wrestle with the meanings of his victory and his flip-flop on whether government actors should get to pick and choose who gets to question them. First, though, some introductions are in order.
As I write this, I’m slouching, rough beast that I am, toward the 22nd year of a career in New Mexico journalism, much of it focused on the criminal and civil legal systems, with many a side dish of exploring the dark corners of government transparency and press access to the corridors of authority. My day job now, journalistically speaking anyway, mostly involves news analysis as the executive producer for news and public affairs at NMPBS. Flicking a light on once a month in the aforementioned corners for The Paper. is my new side hustle.
The ceremony of innocence: drowned, indeed.
I first encountered Kennedy in the mid-2000s, when he joined the American Civil Liberties Union to demolish then-Democratic Mayor Marty Chavez’s nakedly unconstitutional ordinance whereby the city would snatch your vehicle upon arrest—not conviction—for a first-offense DWI. He’s practiced in civil rights and criminal defense for decades, and you might remember him from such recent movies as the corruption trial against former University of New Mexico Athletics Director Paul Krebs. (Like so many of Kennedy’s clients down through the years, Krebs got off.)
GOP governors have twice appointed Kennedy, also a Republican, to the New Mexico Supreme Court; both times he was quickly defeated at the ballot box to remain on the bench. And in the later part of his career, when Republicans have been in power, he has banked a stack of doubloons that would redden the cheeks of Scrooge McDuck himself by representing government clients in civil matters. You might also remember him as defense counsel in such movies as the time then-Gov. Susana Martinez’s administration was sued for adding assets to folks’ emergency food assistance applications to make them appear undeserving.
Last month concluded a case in which Kennedy was back on the other side, suing the administration of Mayor Tim Keller, a Democrat, on behalf of former Albuquerque cop Mark Aragon and his business partner, Nick Layman, a local podcaster, freelance photographer and coworker of mine when he was a photo tech at the Albuquerque Journal. Together, Aragon and Layman run ABQ RAW, a popular, lucrative website whose mission appears to be convincing Burqueños that they’re living in a hellscape beyond the fever dreams of Cormac McCarthy. It’s equal parts Nightcrawler and Live: On Patrol.
I find ABQ RAW to be both (selectively) truthful and poisonous. But damn if Aragon and Layman didn’t have a point when they walked into Kennedy’s office in 2022, complaining that APD and its spokesman, Gilbert Gallegos, may have violated their constitutional rights by bouncing them out of press events, dropping them from press distribution lists and denying them access to the encrypted channels on the police radio the department provides to other media organizations.
Kennedy went to work and, after some pretty telling discovery—including comments from Gallegos that he was freezing RAW out because he didn’t like what they posted—convinced state District Court Judge Denise Barela Shepherd that the Keller administration had engaged in illegal viewpoint discrimination. Gallegos, a former Albuquerque Tribune reporter (and a good one) and other APD spokesfolk showed their hand in a series of other public blunders, referring to ABQ RAW as “not a news outlet,” “a duo who make money from publishing ‘graphic’ video of homicide victims” and blocking the pair from the department’s account on “X,” the artist formerly known as Twitter.
The facts Kennedy uncovered “raise a presumption that [APD] acted with a discriminatory purpose in choosing to provide access to certain entities but not ABQ RAW,” Barela Shepherd wrote in a Dec. 1 order granting partial summary judgment to Layman and Aragon that effectively ended the case. It died for good a couple weeks later when the parties agreed to dismiss the case with prejudice after a settlement that, according to Kennedy and city records, was not without impact.
APD has coughed up a police scanner, complete with encrypted channels, to Layman and Aragon, Kennedy tells me. The pair have been added to the department’s email lists, too, and they’ll now be allowed at news conferences. Further, APD has a new “media policy” that, according to Barela Shepherd, must be “viewpoint-neutral.”
“It is more than fair to say that the new policy comes as a result of this litigation,” Kennedy told me in a telephone interview last week, though he doesn’t believe the case sets any sort of landmark precedent. “Maybe APD will be more careful in the future…. But now, our clients are going to be treated on the same basis as all other outlets.”
Gallegos told me the department was revising its policy as the litigation was ongoing.
“Because the lawsuit was there, our legal department said, ‘You should add a definition for news media,’ so we did,” he added.
ABQ RAW also got paid, and so did Kennedy.
City records show two sets of payments to his firm since the viewpoint discrimination case was filed: one totaling $300,000 and another adding up to more than $875,000. Kennedy said the ABQ RAW case resulted in “well into the six figures” for damages and sanctions, plus, of course, attorneys fees and costs. How much of that nearly $1.2 million in taxpayer money went toward the ABQ RAW litigation? “I honestly can’t remember,” Kennedy told me.
That tracks.
He has stacked the Benjamins in a viewpoint discrimination case before. But in the previous case, Kennedy’s gig was to argue that then-Gov. Susana Martinez could damn well decide for herself who should be graced by her edicts, presence and thought processes when making decisions about how to govern New Mexicans.
When Kennedy surprisingly returned my call for this column, his first words were: “Jeff, for what disreputable rag are you writing now?”
We’ve known each other for many years, which means he well recalls my time from 2017-2023 as an editor and writer at the Santa Fe Reporter, the weekly newspaper in the Capitol that sued Martinez for…wait for it…viewpoint discrimination after she and her crew engaged in many of the same authoritarian tactics the Keller administration used against ABQ RAW.
The case found its way to the courtroom of state District Judge Sarah Singleton, who has since died. A three-day bench trial saw Kennedy, a force of nature with a brilliant legal mind, in full flow, intentionally conflating the identities of my friends and colleagues, demeaning their journalistic bonafides and demanding that they tell him from the witness stand how long they’d been in “the journalism racket.”
All of this in service of helping Martinez and her band of merry men to guard the very walls of secrecy Kennedy now argues should be blown to smithereens in Keller Land.
Singleton ruled that the Republican prosecutor-turned-governor and her administration had violated the state Inspection of Public Records Act by illegally denying and, in some cases, flat-out ignoring SFR’s requests for documents. But she had not, the judge determined, run afoul the New Mexico constitution through viewpoint discrimination.
It’s certainly accurate to say that an attorney’s job is to advocate for their client’s position, regardless of how it may conflict with their own beliefs. But given the glaring similarities between SFR vs. Martinez and ABQ RAW vs. City of Albuquerque—and Kennedy’s stated dedication to the merits of both—I had to ask him how he squares the obvious disconnect.
“There is no dissonance whatsoever,” he told me. “That Santa Fe Reporter case was a scam, and we won that case at trial, except for a little records claim or something. The Santa Fe Reporter was claiming the governor had to talk to them, show them her schedule, give them her doctor’s appointments and what they were for and all sorts of wild stuff.”
Martinez “absolutely did not engage in viewpoint discrimination,” Kennedy said, “and we proved it at trial.”
Never mind that Kennedy mischaracterized some of SFR’s claims; I was more interested in another square peg searching for a round hole, this one related to size. Kennedy had argued that SFR shouldn’t be granted the same access to Martinez as the Albuquerque Journal, the Associated Press or commercial television stations because its audience was smaller.
And while I’m certain that the public’s bloodlust means ABQ RAW garners plenty of eyeballs online, it is a niche publication. Did size not matter in the more recent litigation? I asked Kennedy.
“I’m not going to answer that on the record,” came his reply.
These important disputes around transparency and access to the government are too often forced into the courts to be argued by powerful, politically motivated actors. Martinez was, after all, one of the Republican governors who installed Kennedy on the state Supreme Court, and Democratic candidates twice bested him in elections. The phenomenon points up one of the many broken pieces of our system.
Legislators and executives of both major parties prefer that you not question the manner in which they govern, and there exist too few avenues for redressing grievances, especially if you don’t have the means to enlist a highly skilled advocate to your cause. So, to the courtroom crapshoot we must too often turn.
Sometimes, though, we roll that seven or 11 and pump our victorious fist skyward.
I asked Julie Ann Grimm, SFR’s editor and publisher and my former boss, for her thoughts on the chasm between Kennedy’s stances in the two viewpoint discrimination cases. Here’s what she told me:
“Paul Kennedy billed the state of New Mexico hundreds of thousands of dollars to argue against a politician’s obligation to treat journalists fairly. It’s a shame that the District Court ruled it was OK for former Gov. Susana Martinez to discriminate against the Santa Fe Reporter. That’s clearly what she did. We felt at the time of that ruling, and still feel today, that this appalling practice shouldn’t be sanctioned or tolerated. It’s a tool that elected officials still employ. Their refusal to grant interviews or invite particular journalists to press conferences out of spite or in some effort to control the narrative doesn’t serve the people who elected them.”
I still agree with Grimm that Judge Singleton erred in her ruling related to SFR’s viewpoint discrimination claim. It was incredibly obvious that Martinez was shutting the newspaper out on account of critical coverage. But I’ve done this long enough to see that the Keller administration had done the same to ABQ RAW, whatever I feel about how the site approaches news, and that Judge Barela Shepherd found her way to the right decision.
Kennedy and I have disagreed many times in the two decades we’ve known one another, including the time I successfully sued Martinez for billing records in cases he’d handled for her. But I found myself cheering his answer when I asked whether the government should ever get to decide who is a journalist or who should get access to power.
“Never,” he said. “As soon as you say that the government gets to license journalists, you may as well be living in Cuba. That’s the end of the First Amendment. Just because you are a ‘legitimate’ news outlet doesn’t entitle you to anything more than the RAW guys or Joe Shit the Rag Guy.”
I don’t know Joe, Justice Kennedy, but I do know that, at long last, we agree.
Jeff Proctor is a longtime journalist, 2012 winner of the New Mexico Foundation for Open Government’s William S. Dixon First Amendment Freedom Award for advancing transparency in the state and executive producer for news and public affairs at New Mexico PBS.