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9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, Others

On Friday, the White House barred specific news organizations from attending a press briefing by spokesman Sean Spicer. Among the organizations excluded from the question and answer session were news outlets that President Donald Trump has singled out for criticism—including Buzzfeed, CNN, the New York Times, and Politico. The White House Correspondents’ Association stated that its board is “protesting strongly” against the action.

Many in the media have asked whether the White House actions were unconstitutional. I asked some of the most highly respected First Amendment law experts across the country. Here’s what they said.

Robert Corn-Revere, Partner, Davis Wright Tremaine, LLP:

Whether or not a White House press briefing is a public forum, the selective exclusion of certain news organizations or reporters as retaliation for unfavorable news coverage or simply because the Administration does not like the “tone” of their coverage raises a significant First Amendment problem.  While there are not a lot of cases in this area – perhaps because most responsible public officials know better than to engage in such tactics – they have held that arbitrary denials of press access are unconstitutional.  Perhaps more to the point, such actions are deeply offensive to American values generally, and to the spirit of the First Amendment specifically. And that is true regardless whether a Republican or Democratic administration does it.

Lucy Dalglish, Dean of the Philip Merrill College of Journalism at the University of Maryland:

All presidents have tangled with the press in one way or another. They frequently have blackballed one or more newsrooms from interviews with the president. But once they start excluding credentialed White House correspondents from briefings based on their journalism, they have entered new and forbidden territory.

Arthur Eisenberg, Legal Director, New York Civil Liberties Union:

The Supreme Court has long recognized that in administering access to a public forum, or even a limited forum, government may not privilege some and disadvantage others on the basis of ideological viewpoints. Writing for the Court in Police Department v. Mosley, 408 U.S. 92, 96 (1972), Justice Thurgood Marshall observed: “The government may not grant the use of a forum to people it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” In explaining this proposition, Justice Marshall insisted that “[t]here is an equality of status in the field of ideas and government must afford all points of view an equal opportunity to be heard.” The Court has further recognized that the First Amendment protects not only the right to speak but the right to receive information and to engage in the free exchange of ideas.

A presidential press briefing is not a public forum. The briefing is clearly not open to all members of the public. But, such an event can comfortably be understood as a limited forum where reporters from significant news outlets are invited as participants. In conferring access to this forum, government officials may limit the number of participants to ensure against overcrowding of the room where the event is being held. The officials might also create categorical criteria for exclusion (such as news outlets that publish on a daily basis or whose readership or viewing audience exceeds a certain number). They may even confine the discussion to certain topics. See Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788 (1985). But what the government officials cannot do, consistent with the First Amendment, is to grant or deny access to news agencies or reporters based upon the views expressed by those individuals or publications. To do so, violates a neutrality principle that is basic to the First Amendment.

The Court’s adherence to this prohibition against viewpoint discrimination applies even beyond circumstances where government is regulating access to a forum and even when government officials attempt to mask their motives behind laws that appear to be facially neutral. Grosjean v. American Press Company, 297 U.S. 233 (1936) involved a Louisiana tax that singled out for special adverse treatment the newspapers in the State with the largest circulation. The tax did not identify the newspapers by name. It was imposed simply upon newspapers whose circulation exceeded 20,000. But, by no coincidence, these were the newspapers that were most critical of Louisiana’s governor, Huey Long. The Court looked behind the facial neutrality of the statute, finding the tax unconstitutional upon the ground that it had been enacted “for the purpose of penalizing the publishers of a . . . selected group of newspapers.” Here, again, the First Amendment was violated by the efforts of government officials to penalize expressive enterprises on the basis of viewpoint.

Jameel Jaffer, Executive Director, Knight First Amendment Institute at Columbia University:

The First Amendment bars the press secretary from ejecting media organizations from briefings they would otherwise be entitled to attend simply because he doesn’t like their reporting. In addition, the First and Fifth Amendments entitle media organizations that are denied access to those briefings to timely notice and an opportunity to contest their exclusions. The D.C. Circuit held as much in Sherrill v. Knight and lower courts in other circuits have reached essentially the same conclusion. Based on the facts as I understand them, the press secretary’s actions weren’t defensible under these standards. He replaced a scheduled on-camera briefing that all major news organizations were scheduled to attend with an off-camera briefing that pointedly excluded organizations whose coverage President Trump had previously criticized. (Trump called Buzzfeed a “failing pile of garbage,” for example, after it reported on unverified allegations that Russia had compiled compromising information about him.) While excluding those disfavored media organizations, the press secretary included the day’s pool reporters as well as a sizable contingent of right-leaning outlets whose coverage the administration finds more congenial.  If these are indeed the facts, as they seem to be, the press secretary’s actions violated the First and Fifth Amendments.

Dawn Johnsen, Walter W. Foskett Professor of Law, Indiana University Maurer School of Law and served as Acting Assistant Attorney General heading the Office of Legal Counsel at the Department of Justice:

The Trump administration’s treatment of the press, including its own false statements to the press, presents its greatest threat to our constitutional order thus far. In evaluating the constitutionality of executive action we must keep in mind that the test is not simply what a court might rule unconstitutional. In our system, much of what the president does of questionable legality will not be reviewed by the courts, or will be reviewed only under a very deferential standard. Thus, other checks are essential: by Congress, by presidential legal advisors – and, as the Supreme Court often has emphasized, by “a free and unrestrained press.”

Lee Levine, partner in the media law firm Levine Sullivan Koch & Schulz and author of the treatise, Newsgathering and the Law:  

The courts have made it reasonably clear that there is a line between simply declining to grant an interview request made by a disfavored reporter, on the one hand, and the purposeful exclusion of a credentialed news organization from a White House press briefing, on the other. The latter violates the First Amendment especially where, as in this case, the exclusion is based on a public official’s dissatisfaction with the content of the news coverage he’s received. From a purely litigation perspective, moreover, the President’s and his Press Secretary’s own words provide ample evidence that the decision was both content and viewpoint based. If we’ve learned nothing else about what the First Amendment forbids in the last fifty plus years, we know that it abhors punitive actions taken by government officials in an effort to punish critics of their official conduct, except in the cause of an extraordinarily compelling public interest. To say the least, no such interest supports this.

Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law:

President Trump’s carefully calculated bashing of the press is a leaf out of the Weimar playbook. Once a would-be tyrant succeeds in de-legitimating the independent private press, the way is open to evolving a substitute form of mass communication dominated by the state. But, while such sustained press-bashing by the President poses enormous risks to the information ecosystem needed to support democracy, it does not necessarily violate the First Amendment. To the extent Presidential press-bashing takes the form of speech calling the independent press “enemies of the people,” and singling out disfavored press organs, like CNN or The New York Times, for special criticism, the President’s ugly words are protected by, not violative of, the First Amendment. On the other hand, if the President unleashed force or discriminatory law enforcement against disfavored critics, whether or not they are members of the press, that would clearly violate the First Amendment. In my opinion, the exclusion of a disfavored cable network and a hostile newspaper from a White House press briefing held in the Press Secretary’s office is probably not a First Amendment violation. As I understand it, the information at the briefing was quickly made available to the excluded organs, rendering the exclusions more symbolic than real. The exclusions were petty, foolish, and, if repeated on a larger scale, dangerous; but, to me, they seemed more a calculated snub; an expression of distaste, rather than an act of censorship. It’s hard for me to view a press briefing in a private office as a limited public forum triggering equal access rights when the information at issue was immediately available to the excluded press organs. The response, and there should be a response, should be a show of solidarity by the press. If the White House insists on treating press briefings as “pool” events, the press should send only the minimum pool representatives. That would end the process immediately.

David Schulz, partner in the media law firm Levine Sullivan Koch & Schulz, and Director, Media Freedom & Information Access Clinic, Yale Law School:

The actions on Friday restricting certain news organizations from a briefing by the White House Press Secretary raise significant concerns. The D.C. Circuit almost forty years ago held in no uncertain terms that access to White House press facilities cannot be arbitrarily denied to credentialed reporters.

Courts routinely have held that government press briefings are the type of public forum to which press access may never be restricted based on objections to the content of a journalist’s reporting. The Supreme Court itself has made clear that, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Friday’s actions appear to be a highly dangerous and improper effort to do just that.

Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School:

Trump’s most recent outrage has been to exclude CNN, The New York Times, and a few other media outlets that the President wants to cut off from inner sources of information and chooses to stigmatize with the “fake news” label that most appropriately fits what he and his subordinates incessantly propound.

The immediate temptation is to denounce that outrage as a clear violation of the First Amendment’s Free Speech and Free Press Clauses. But it isn’t clear to me that those rightly distressed by these presidential actions should hang their hats entirely on the threat of taking the President to court in the name of the Constitution.

Of course Trump’s petulant move, which I trust will not long outlast the adverse public reaction it has already begun to generate, is immature and borders on the dictatorial. Of course it is just the kind of step would-be autocrats typically take before adopting more direct and Draconian forms of press censorship. As Churchill once said, “A free press is the unsleeping guardian of every other right that free men prize; it is the most dangerous foe of tyranny.”

Today the press coverage of the White House is a vital part of that free press. Unsurprisingly, therefore, a number of federal district court and circuit court opinions identify White House press briefings and news availabilities at the offices of government officials as “public forums” that cannot be confined to ideologically sympathetic reporters and commentators.

But it is not entirely clear that the Supreme Court as currently composed, or with Judge Gorsuch as a ninth justice, would reach that conclusion. It might instead hold that the government platform a president and his team create for the press pool, or for the gaggle of reporters who surround the pool, can be treated by the president as an extension of the White House public relations operation, somewhere between the “Voice of the White House” and Lafayette Park. Indeed, with increasing frequency, the current Court has permitted what many regard as the censorship of disfavored views by framing the expression involved as a species of “government speech,” a dangerously malleable category that threatens to swallow First Amendment doctrines otherwise conducive to the free and open exchange of competing views.

To rest one’s opposition to what Trump has done on a foundation this manipulable seems to me a legal and strategic blunder. This president violates the U.S. Constitution so frequently, so deeply, and so demonstrably, that one risks diluting the constitutional currency by pulling out the big “see you in court” guns each time he trashes tradition and violates the broad principles on which our representative democracy rests.

Video: On C-Span, December 16, 2016, Sean Spicer tells Politico reporter that government banning specific reporters or media outlets is what “a dictatorship” does.

 

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16). You can follow him on Twitter (@rgoodlaw).