The House Judiciary Committee on Thursday approved House Bill 4770, which among other things, attempts to define what a journalist is to restrict access to motor vehicle accident reports for a period of 30 days after the accident.

The measure is part of three-bill package aimed at impeding so-called “ambulance chasing” law firms. Within the package, the legislation is apparently an attempt to deny "ambulance chasers” quick access to accident reports. However, in that effort the bill sets out to define what does and doesn’t qualify as a “news publication.” 

“Government cannot license who speaks,” said attorney and MLive columnist Matt Davis. “When government licenses who is in the news media by saying, ‘This group of 50,' or whatever the number, comprises the news media, government is deciding who gets to speak, and it cannot do that.

“The bottom line is that the news media is treated like the public. There are a few exceptions, but those are the exceptions; not the rule,” Davis, who formerly was a Detroit Free Press reporter and a department press secretary in the administration of John Engler, continued. “No one can declare himself or herself to be ‘the news media’ and thereby reserve special treatment and access that the public doesn’t receive. It’s an even greater peril if government declares who or what is ‘the news media’ because, obviously, government will have reasons for wanting to censor access to information.”

House Bill 4770 is sponsored by Rep. Ellen Cogen Lipton, D-Huntington Woods. The chair of the House Judiciary Committee is Rep. Kevin Cotter, R-Mt. Pleasant.

The bill considers a journalist to be "an employee of a radio or television station licensed by the Federal Communications Commission" or "an employee of a newspaper." 

A "newspaper" is said to include, "a newspaper of general circulation that is published at least once a week, include stories of general interest to the public, is used primarily for the dissemination of news, and may be published in hard copy form or on the Internet."

In committee, the measure was amended to add wording that includes online news sources among the entities that would have access to the reports. But, even after this change, the issue of setting precedent for government to have the authority to decide who is or isn’t a journalist or what is or isn’t the news media seems unresolved.

Patrick Wright, senior legal analyst with Mackinac Center for Public Policy suggested the legislators revisit their overall approach.

“I’m not sure that the 30-day period is a good idea,” Wright said. “But that said, if they are really trying to prevent trial lawyers from harassing accident victims, why don’t they just require those who want the reports within 30 days to sign a statement that says they will not use the report for commercial advantage? That would seem to make more sense than for the lawmakers to go on a fool’s errand of trying to define what is or isn’t the news media or who is or isn’t a journalist."

Lisa McGraw, public affairs manager with the Michigan Press Association, said the group is working with the lawmakers to try to resolve the problems with the language in the bill.

“I appreciate Representative Cogen Lipton and Representative Cotter working with us on this issue,” McGraw said. “Ultimately, I hope we can resolve the problem and accomplish what the lawmakers intend to accomplish without the unintended consequences that we are concerned about.”

One section of the bill defines what is considered a news publication, which would be allowed to get access to the reports within 30 days. Another section defines what would not be considered a news publication, and could not have access.

Jane Briggs Bunting, president of the Michigan Coalition for Open Government, said she worries about the long-term implications if the current bill were enacted.

“The government cannot define who is a journalist," she said. "The First Amendment and Michigan's Constitution (Article 1, Section 5) prevents that in very strong, simple and clear language. Efforts to limit access to a select group that includes ‘journalists’ treads on a very slippery slope. I've seen people post public documents to Facebook for the purposes of alerting the citizenry of something going on in government. According to this bill, you couldn't do that as it pertains to accident reports; every other public record, yes, but auto accident reports, which, remember, are the same thing as reports that conclude criminal investigations, no.”

House Bill 4770 was approved in committee on a 10-0-1 vote. The lawmakers who voted “yes” were Reps.: Cotter; Cogen Lipton; Kurt Heise, R- Plymouth; Bradford Jacobsen, R-Oxford; Joel Johnson, R- Clare; Klint Kesto, R-Commerce Twp.; Andrea LaFontaine, R- Richmond; Tom Leonard, R- Lansing; Phil Cavanagh, D- Redford Twp.; and Paul Clemente, D-Lincoln Park. Rep Jeff Irwin, D-Ann Arbor abstained.

When Mackinac Center for Public Policy scholars embarked on a study of Michigan cigarette excise tax rates and related cigarette smuggling in 2007, they could not have dreamed where it might take them.

The most recent stop: Paris and the 9th Annual Eurasia Fiscal Expert Seminar at the Organisation for Economic Cooperation and Development. The study's co-author, Todd Nesbit, is a senior lecturer in economics at Ohio State University and an adjunct scholar with the Mackinac Center. He was asked to present Mackinac Center findings last spring in Paris and he did so to the great interest of his audience.

While in Paris, other organizations asked if he would consider speeches or roundtable discussions in the countries of Georgia, Ukraine and Russia. Nesbit’s invitation to Paris came after presenting the Mackinac Center’s cigarette tax and smuggling study results at the Vienna, Austria Tax Stamp Forum.

The remarkable interest these organizations have taken in the work of a state-based think tank is probably a function of Europe’s own rampant smuggling problem and the Mackinac Center’s unique and durable statistical model. Indeed, Nesbit’s Vienna invitation came after presenting our findings in Maryland, shortly after its January release. 

Our model compares legal-paid sales per capita by state with reported smoking rates in those states. The difference, what we call a “residual,” is our total smuggling rate. The model is unique in its approach and has proven itself to be a robust work. The Mackinac Center sometimes uses the model to make forecasts about future smuggling rates and state revenue changes based on proposed excise tax increases.

One fairly recent forecast we made involved the state of Illinois. In May 2011, Kristina Rasmussen of the Illinois Policy Institute and I published an essay about the proposed $1 excise tax increase being considered by the Land of Lincoln.

We argued, based on the Mackinac Center’s statistical modeling work, that smuggling would leap to 26 percent of the total market in Illinois from just under 6 percent. At the time, Illinois officials expected new revenues of $320 million as a result of the increase in cigarette taxes. 

We predicted a revenue change closer to $247.3 million in new revenues. Illinois adopted the excise tax hike despite our protestations and it has now been in effect for 12 months.

What happened to state excise tax revenues? They increased by $236 million, almost 26.3 percent less than what was predicted by Illinois state government. The actual figures were 4.7 percent lower than the Mackinac Center’s forecast.

Many people and politicians may point to the decline in sales and revenue and declare victory in Illinois. “See, people are quitting,” they will argue. That is true, but not to the degree people think. One scholars’ work in this field shows that as much as 85 percent of after-tax changes in cigarette sales may be attributed to avoiding higher taxes, and not from kicking the habit.

The Mackinac Center for Public Policy has produced three studies on cigarette smuggling since 2008. Each contains a statistical model designed to measure the rate of smuggling in 47 of the 48 contiguous states. In the 2013 analysis, Nesbit and I conclude that just over 29 percent of all cigarettes consumed in Michigan in 2011 were smuggled.