Unless they sub in a bunch of White House interns and campaign staffers. Fox and Brietbart won’t tell.
No, but CNN, MSNBC, ABC, CBS, NBC, the Washington Post and the New York Times surely will.
Why would it? But in order to find out, someone would have to be kicked out and press a law suit (pun intended). AFAIK, that has not happened. So, lacking any case law along those lines, you’d be breaking new judicial grounds with such a suit and I can’t think of any reason why the plaintiff would prevail.
I do agree that peer cohesion in the collective press is very strong and they don’t take kindly to any of their members being shafted. The consequences would be political, not judicial though.
No, tradition does not have the force of law, let alone Constitutional law.
On further investigation, I can’t confirm that the person ejected from the Obama press conference was an actual credentialed reporter, so you may be right. The lines between reporters and “protestors” get blurred however. And labeling those who ask inconvenient questions (however rudely) as “hecklers” varies depending on sympathies for the viewpoint in question.
*"Support for Collins, a current CNN and former Daily Caller colleague who shouted “inappropriate questions,” is a good sign. But it reminds me of another former Daily Caller colleague who also asked an inappropriate question that also dominated news cycles but didn’t garner as much sympathy: Neil Munro.
Instead of being championed as a hero or martyr, Munro’s question about why the president was favoring undocumented immigrants over U.S. citizens was framed as “heckling” by writers at multiple news outlets (Politico, HuffPost, CNN―you name it). This was back in 2012, and Obama was announcing a new policy that would grant DREAMers a temporary reprieve from deportation.
‘If a journalist is banned or otherwise shutdown, there should be an understanding that the remaining news outlets will defer to the banned reporter’s outlet for the first several questions at the next briefing.’
In response to Wednesday’s Collins controversy, the (White House Correspondents Association) issued a statement condemning “the White House’s misguided and inappropriate decision today to bar one of our members from an open press event after she asked questions they did not like.”
Want to know how the WHCA defended Neil Munro’s questioning of Barack Obama? They called him “discourteous.”*
There’s certainly time for Trump to exceed Obama’s record for harassing and stonewalling journalists. Based on his words, it’s a real concern with Trump. But he’s nowhere near that point yet.
You’re a lawyer and I’m not, so if you want to put forward the law I’m getting wrong please do so and I’ll grant your expertise.
I’m an expert on my words, though, and I can tell you what you got wrong there. I never mentioned Congress, and I can’t imagine where you got that from. Congress does make laws and the President doesn’t, which was the hole in the OP’s question I pointed out. The President must conform to the law, of course, but nobody including you has cited any specific law which bars the President from barring reporters.
So, this has to be one of the all-time worst scoldings I’ve ever read on this message board.
Now that we’re tied, how 'bout starting from scratch and laying down some law on the issue?
That sort of goes with the pool analogy made … what if the town just says we won’t have a pool at all? Sure they can do that. But it does not inform to the question of whether or not they can have a pool and say specifically Blacks or Muslims or even just Joe Shlabotnik (because the town mayor doesn’t like him) cannot swim in it. Is access to reporters chosen by the WHCA like that? You can choose to play canasta instead of having a briefing but if you do have a briefing you must let the WHCA select who is there?
To me it seems that the WHCA, inclusive of Fox, the one “real news” station, has a vested interest in sticking together on this as the tradition serves them all well. And even Fox has. But that unified press coverage response is not force of law and I don’t think there is anything that would prevent Trump from saying no more access to the WHCA and that he would only allow access to selected reporters from Fox. (INAL.) Is there?
It’s hard to say anything is or isn’t a legal matter until somebody has tried to make it one and courts say ‘no it’s not’. It’s a spectrum of probability. IMO the probability of a valid legal case being made out of one reporter or outlet being excluded from press events is near zero. It’s a convention to consider any given news outlet ‘major legitimate news source’ whose access on par with other such outlets is understood. We as ordinary citizens can’t go to those events and that’s not a 1st A issue.
In fact the Obama admin did try to put forward the idea that Fox wasn’t a fully legitimate outlet, as many people here fervently agree so ironic to ask for source?!?! then parse the difference in that case v this one. Shouldn’t Obama have done that, since Fox is indeed illegitimate in the general consensus on the left? Whether it really is I won’t opine, but it’s not a direct 1st A issue. It just looked bad when Obama admin tried it, as this looks bad.
As noted above already -
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Not for WHCA access to the president they didn’t.
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They indeed then backed down immediately when there was unified press response, including from that which Trump characterizes as “fake news” against it.
So yes, the same standard should apply. The press must respond in a united manner, whatever their possible lean, and the administration should not cross this line, a line farther than Obama’s administration crossed, again.
I think we know that the government can’t discriminate based on race, religion or national origin. Those are suspect classes and get strict scrutiny by the courts. But personality or political beliefs are not suspect classes. If Trump said: I don’t want Sally Smith because she’s too liberal, then tough shit for Sally. If Trump tries to says I don’t want Ahmed Lopez because he’s not only a Mexican, but a Muslim to boot, then tough shit for Trump.
Yes, I think that’s the way it plays out.
I wonder if attorneys on the 'Dope exaggerate as they do in court?
I’d argue that to the best of anyone’s knowledge right now, it is not unconstitutional for the President of the United States to bar access to some reporters, or to give elevated access to some reporters over others.
There is, to my knowledge, no clear judicial ruling nor law passed by Congress that would restrict the President’s behavior in this manner. To my mind there are two potential legal lines of attack against this behavior, but it is my reasoned opinion neither would ultimately prevail. Those two lines of attack would be:
- First Amendment / Public forum argument - this is essentially the @realDonaldTrump Twitter ruling. In that case, Judge Naomi Reice Buchwald (U.S. District Judge for the Southern District of New York), ruled that the President had established a public forum via his @realDonaldTrump Twitter account, and that under previous Supreme Court precedent about government-established public forums, there are strict rules on how public officials can control access to said forum. So let’s consider this ruling.
Firstly, we have to ask if this ruling would likely apply to the case of White House reporters or reporters covering the President more broadly. I would suggest no–the President through the White House press pool, the maintenance of “spots” for that pool to travel with the President, the maintenance of facilities for that pool to work within the White House and attend regular White House Press briefings has not established a “public forum.” In fact quite the opposite–it’s not public because getting access to it requires going through a specialized process and vetting, requires credentialed media status and it is tightly regulated. Generally me or you Joe Public cannot participate in this process and get press pool seats on Air Force One or seats in the White House briefing room.
So a public forum has not been established in my opinion, but rather the President has chosen to exercise his executive privilege to create a relationship with a selected subset of the media to better communicate with the public.
Secondly, we have to ask if Buchwald’s ruling is likely to actually be upheld long term. I feel like that is harder to predict. My opinion is that in the case of @realDonaldTrump, the President did in fact establish a public forum, and that Judge Buchwald ruled correctly in her ruling. But during the Trump Presidency there has been significant differences between how the lower courts (especially Democratic President appointed judges) and the highest court have ruled in regard to executive privileges and powers. My opinion is this difference is primarily a political one, and is just reflective of the long process of politicization of the Federal judiciary (one could argue it’s always been a political institution–and I’d agree, but one can also note that it’s gone through phases of partisanship and we’re in an increasing partisan era for the judiciary), and that the Republican-controlled highest court would likely overturn it. I can’t say for sure, but I have a hunch that might happen. But I also haven’t actually found any evidence the administration has chosen to contest Judge Buchwald’s ruling, the last I heard on it was “they were considering their options.” If they’re contesting it, I wasn’t able to find easy evidence of it on Google News or other news searches I performed.
2. Equal Protection of the Law Argument. So I don’t really believe the public forum concept applies to the White House press corps, or press access to the President. But I do think equal protection jurisprudence does. So I do think if there was evidence the President was specifically excluding women, Muslims or etc from press access, due to their gender or religious beliefs, that would likely be unconstitutional. The President may be exercising an executive prerogative in his maintenance of a press corps, but in his official acts he still cannot give unequal treatment to people on those criteria. However that isn’t what’s alleged, instead what’s alleged is he’s choosing to give higher press access to people who cover him in a way he “likes” and to block access from some journalists who cover him in a way he doesn’t like.
I don’t believe that would fall under equal protection jurisprudence. It may be politically questionable, abnormal, and potentially unwise–but probably not unconstitutional.
There is a pretty long history of Presidents giving access to journalists using criteria like “personal relationship”, “rapport” and etc. Especially Presidential 1 on 1s, have usually gone to “better behaved” journalists who the President in office has felt wasn’t “unfair” to them.
For what it’s worth, I’ll note that in the history of Presidential dealings with the Press, the President generally has not behaved altruistically. White House Press briefings, the traveling press corps, press access to the President could all be done away with, but the reason every President has maintained them ever since it was first implemented is they’ve calculated that maintaining it is more beneficial than it is harmful. With the increased use of twitter and non-traditional media I could actually imagine in a future era this sort of going away, but even Trump at least for right now (loathe as he would be to admit it), derives more benefit than harm from his relationship with the press.
However freedom of the press is a core First Amendment protection. It’s right there beside religion in the same amendment.
If the government can stifle a reporter’s career (in essence) because she publishes things that the President/Congress/Supreme Court doesn’t like then that is at least as coercive as allowing public prayer in school.
We have clear, explicit jurisprudence on prayer in public school. What is the jurisprudence you are relying on regarding career stifling of reporters? Just saying “it’s the same” is not a legal argument.
Thanks for that analysis, Martin.
And, it could be very difficult to press such a claim, too. Unless the president announced this policy in advance* or had established a clear pattern of behavior, the woman or Muslim or Mexican-American might just be some reporter that the president didn’t want in the briefing room. It’s not like there are hundreds of people in that briefing room, and there would be some long history to draw upon.
*And what president would do such foolish thing. 
I assume these sorts of leading questions along the lines of “have you stopped beating your wife yet?” are indeed heckling, not a question seeking a legitimate answer. I’m trying to imagine a situation where not deporting Dreamers is actually in any way favouring them over citizens? (Which would make this a legitimate question, not grandstanding) It’s not like they were deporting citizens but not dreamers.
What we are seeing nowadays is that a number of the processes by which the government operates - press access, candidates showing their tax returns, etc. are actually just traditions, not law.
As to the OP question - if the WH prevents certain news agencies from participating for no other criteria than dislike of their point of view, that could be argued as a first amendment violation. While they may be entirely within their right to ban a person for (perceived) inappropriate behaviour, the courts may view failure to set and follow reasonable guidelines as bias and therefore stifling press freedom.
There are limited spots - very well, what criteria determine whose representative is chosen? Organization size, revenue, number of employees, number of audience, number of Pulitzers?
Is the number of limited spots reasonable?
There is decorum to be followed - OK, these events are video-recorded, did the same criteria get applied to everyone?
Credentials need to be approved for individuals - were they in any way discriminating against protected classed?
Did the officials appear to be professing any form of bias when discussing the issue?
I don’t know what the result of a lawsuit would be - IANAL - but I bet the WH does not want to argue in court, with the risk it could lose and therefore lose control of the selection of their press contingent.
The term “freedom of press” does not refer to professional media at all. It merely means that anyone has the right to publish (which was not then the case in most other countries). It makes no distinction between your blog and the New York Times.
The term “the press” used to refer to professional journalists is more recent. Applying it to the Constitution is an anachronism.
Thus, any president is entirely within his legal rights to pick and choose which media he wants to work with. Indeed he’s under no obligation to speak with any of them, ever.
Generally, politicians have tried to accomodate and work with the media because they thought it was useful politically. In the internet age, this may change.
Other have said that, but I’m still waiting for a cite to a case that supports this view. Is the WH compelled to allow Russian news agencies into the briefing room if the president just doesn’t want them there and if they are in the country legally?
There isn’t going to be a cite to a case until there is a case. Then we will have an answer. But there is a colorable argument.
The President can decline to invite Ultravires Web Blog reporter because we are bush league. A court would decide if he could decline to invite us because we are critical of him.