When Federal Courts Subtweet Sean Spicer…

On any other Monday, in any other year, it’s hard to imagine that today’s 19-page ruling by Judge Oetken in Nicholas v. City of New York would merit much attention. Indeed, all the court did today was to deny the defendants’ motion to dismiss a pro se claim arising out of the allegedly retaliatory revocation of a photographer’s media credential. But in the course of doing so, Judge Oetken had a chance to say some interesting things about the government’s ability (and lack thereof) to restrict media access to newsworthy events (with citations omitted), a topic we’ve already been discussing today:

“[O]nce there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable.” For example, it has been held impermissible to exclude a single television news network from live coverage of mayoral candidates’ headquarters and to withhold White House press passes in a content-based or arbitrary fashion. Equal press access is critical because “[e]xclusion of an individual reporter . . . carries with it ‘the danger that granting favorable treatment to certain members of the media allows the government to influence the type of substantive media coverage that public events will receive,’which effectively harms the public.” Courts thus recognize that equal access of the press is necessary in order to prevent government officials from “affect[ing] the content or tenor of the news by choreographing which news organizations have access to relevant information.”

Because Nicholas’s complaint states a plausible claim for a violation of the First Amendment insofar as the revocation of his credential was either viewpoint-based or arbitrary, the court denied the City’s (and its officers’) motion to dismiss.

Paging Sean Spicer…

 

Image: qingwa/Getty 

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About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).