I believe that the First Amendment has probably been defined the most broadly of all of the Bill of Rights. So when you note that there is a particular “vetting”, I think it’s fair to say that if the ACLU (or someone) made the case that the vetting was including measures to suppress speech, then that would qualify as an infringement.
The government has a fairly reasonable argument to make that there’s limited space and so, for example, you need to be a major news organization. But how do you make the argument that CNN needs to go, without mentioning that you don’t like how they talk about you?
Sure it probably has been the most broadly defined–but there’s essentially no evidence it’s defined in the way you mention here, regardless of what the ACLU might or might not do. It would largely be new ground to consider “access to restricted Presidential functions” an exercise of free speech. I already explained what is likely the closest you can get on First Amendment grounds–participation in a public forum, and also why I don’t think it applies in this situation.
If President Trump held a town hall open to the public, but ordered the Secret Service to ask people on the way in if they had voted for Hillary, and then barred those people from entry, that would be a First Amendment violation because he was creating a public forum and then barring people with no good cause (he could still bar people who say, were a security risk.)
There’s never been any jurisprudence that has ruled that an element of the “Free Press” as defined in the First Amendment includes special access to restricted events.
Freedom of the Press is fundamental to a true democracy. Allowing a president to only keep around the members of the press who pander to him while eliminating members of the press that examine him critically is the stuff of dictatorships.
The fact that thee are people who actually question this frightens me.
I think most of us are talking about the law, not right/wrong good policy/bad policy. The law isn’t guaranteed to be “right” or “good policy.” There’s lot of Presidential behaviors that have nothing to do with the law whatsoever, but are Presidential prerogative, and that almost all Presidents have followed in a manner that shows respect for norms and good governance. Trump chooses not to do that–because at the end of the day the office of the Presidency is not bound by norms, but by the law, and only bound by the law insomuch as other organs of government are willing to hold him accountable to it.
It may be good policy for a President to not “pick and choose” which reporters have access, but even the existence of the “Presidential exclusive” and the White House press corps is basically the President doing just that. While the tradition is the White House lets the media organizations choose who will have seats in the press corps, by its nature this in itself is still an act of Presidential discretion, since the White House makes decisions about what sort of media orgs get seats in the press room.
So like InfoWars doesn’t get a seat and neither does a personal blog, but CNN and Fox New do–that’s a form of Presidential discretion being issued there. Where Trump is going against norms is we’ve traditionally left it up to news organizations who gets to fill these spots, and we’ve traditionally not punished journalists from organizations that report on embarrassing things about the President, Trump has chosen to violate those norms. But I don’t see anything unconstitutional about it.
Saying something is constitutional isn’t the same thing as saying I agree with it or that I think it’s good for freedom of the press–but the freedom of the press isn’t unlimited, and in areas where it is not protected by the law or the constitution the political powers will have the ability to trample on it.
…imported almost all finished goods and exported a few raw materials (i.e. had a colonial-style economy).
…lived on farms, with the majority of Americans growing their own food.
…had no income tax, and funded the government largely on excise taxes on liquor.
…cast open ballots which allowed machine bosses to know how we voted.
…didn’t consider the bill of rights to be applicable to state laws.
…didn’t allow women to vote.
…turned a blind eye to little problems that we now call slavery and genocide.
Do you really want to hold any of those out as examples for how we should behave today? Now is not then.
I deal with the world in 2018 AD, not the way it was in “the old days”.
The question was whether or not the current president can accommodate the media people HE wants while excluding the ones HE doesn’t like because, obviously, they aren’t kissing his ass.
In Russia, Putin has the media HE wants because they report the “news” exactly the way HE wants it reported. It’s like the only news outlet in Russia is their version of Fox News.
Some folks seem to be making a distinction between “the press” and just random citizens. But there is no such distinction, especially not in this day and age when any random citizen can very easily have a blog or Twitter account. Is Matt Drudge a reporter? Now, most would say yes, but he was just some random nobody with a blog until he happened to be in the right place at the right time with the Lewinsky scandal. Likewise, the question that gets a “heckler” thrown out could be the one that propels him to national prominence and makes him a “real reporter”.
*“The press” vs random citizens *- there is no doubt when space is limited, the government can allocate spaces in a manner to limit attendance. But then the question becomes - what selection criteria? As I said in my post, they could use organization size, audience size, etc. -the real question becomes, can that criteria include “what the person or their employer says and if it offends the president”? As mentioned - no cases so far, but the argument can be made that preventing an organization from accessing the WH publicity events mainly on the criteria that they disagree with the executive runs counter to the concept of the First Amendment - an attempt to use the power of the executive branch to change or punish what a free press reports.
After all, the basis of the arguments is simple - the money and facilities belong to the people, not the president personally. Therefore, he cannot pick and choose (spend the taxpayers’ money) based on who is most obsequious.
If the executive simply stopped talking to all press, that would be fine. It does not discriminate on basis of what each outlet publishes. Of course, if the president then consented to several one-on-one interviews, it might be harder to say “but they skipped us” and make a first amendment case out of it.
And to repeat - I doubt the White House wants to take it to court, with the risk that it would become decided law that the White House cannot discriminate.
I think most people’s instinct here is to say that the U.S. constitution doesn’t allow the White House to exclude members of the press from press events because of the content of their journalism. I think people’s instincts here are right.
I think that the question is whether the White House press briefing room is a public forum, a designated (or special) public forum, or a nonpublic forum. I think the White House press briefing room is a designated public forum.
Public forums are places like parks and streets where the public traditionally gather to assemble and debate ideas. In contrast, designated public forums are those “created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 US 788 at 802.
Examples of designated public forums include: a municipal auditorium that could be rented by the public but not for a production of “Hair” that involved nudity (Southeastern Promotions v. Conrad, 420 U.S. 546 (1975)), student meeting rooms selectively offered to social or academic student groups but not to religious student groups (Widmar v. Vincent, 454 U.S. 263 (1981)), a public fund that paid for publications by student groups but not those of religious student groups (Rosenberger v. University of Virginia, 515 U.S. 819 (1995), brochures soliciting donations for the Combined Federal Campaign which didn’t want to include the NAACP (Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788), and a public TV station’s candidate debate that wanted to exclude a minor party candidate (Arkansas Ed. Television Comm’n v. Forbes, 523 US 666 (1998)). The White House briefing room or any place where the president hosts a press conference is a place designated by the government for use by certain speakers (the president or the press secretary and the members of the press) to discuss certain subjects (the president, government policies, etc.). Press conferences and the White House briefing room are traditionally open to members of the press. Thus, the decision to exclude members of the press is subject to strict scrutiny.
“Strict scrutiny” is the highest level of scrutiny the Supreme Court applies to a government’s decision. To prevail, the government must show that its action furthered a compelling government interest and that it must have narrowly tailored its action to achieve that interest. The government does not have a compelling government interest in stifling journalists with which it disagrees.
Furthermore, even if the White House briefing room is a nonpublic forum, the administration still can’t discriminate in providing access based on journalist’s viewpoints.
Does that sound a bit like excluding journalists because you don’t like their coverage? Whether or not journalists have been excluded from press conferences and White House briefings in the past because of their news coverage, such a thing is not permitted by the Constitution.
This is undoubtedly true. They could shut down the White House briefing room completely if they so chose. The problem is that they want the chance to spread their message but only to obsequious journalists.
It’s interesting people keep making the jurisprudence argument and in doing so simply confirm–there is no clear cut jurisprudence on this issue. You say it’s a public forum–I say there’s no clear precedent that it is, and many reasons to doubt that it is. It’s actually quite different from every example of a public forum you mentioned–namely that all of those public forums are places where the public speaks.
The White House Press briefing room is a place where the Press Secretary, her surrogates, and rarely the President himself, speak. The Press are not there as “speakers” exchanging ideas, in fact they are limited to only being allowed to ask questions. Further, the President/Press Secretary chooses who to call on to hear their questions, this is standard practice and has been for years.
For that reason their presence there is not exercising participation in a public forum. I suspect many of you…may not realize how the White House Press briefings are conducted, how the White House press corps is managed, because you keep using the word “speakers”, by typical definitions of the process the press corps are “consumers” of information at these briefings, they are not speakers. Their questions are limited, at some briefings some reporters don’t get to ask any questions at all.
Since it’s pretty clearly not a public forum, you’re left with equal protection–but that would only apply if it was obvious the President was excluding journalists based on say, membership in a protected class.
The freedom of the press clause of the first amendment (which is actually different from the public forum concept, a public forum more relates to the general freedoms of speech and association, and isn’t a “press freedom”), primarily and historically covers publication and presentment of information to the public. There’s very little jurisprudence of any kind that has ever taken the view that the freedom of the press constitutes an obligation of access to public officials. The closest we have to that are statutory rights to information, as encapsulated in laws pertaining to FOIA requests or things of that nature–but those requests do not require access to public officials, simply that they comply with the law and produce certain public documents on demand, within the guidelines of the law.
The closest we have in our government to a public official being required to answer questions would be through the legislative branch and its subpoena/investigation power, but that’s a power that has not been extended to the press. What many of you don’t realize, because you’re not looking at it as the Supreme Court would–where they absolutely factor in executive power, executive privileges, prior practices and prior jurisprudence, is there is no real established “right to access” of public officials for members of the press, and there is lots of established authority for the President to choose who he talks to and from whom he will take questions. The alternative is actually a fairy tale world in which the press have a positive right to interrogate the President–and there is simply no basis for that belief in our body of laws and judgments.
You might view it as a problem, but there’s no evidence our court system has ever ruled it’s a problem for the President to behave…gasp, as a political operative.
In the case of press briefings, it’s the president (or press secretary) who is the speaker, not the press. In that case, the government speech doctrine would prevail. The president is attempting to get out a message, and he is not inviting members of the press to give speeches. In fact, if someone in the press corp did decide to give a speech, that person would probably be thrown out. Otherwise, every reporter can write whatever he or she wants. The president is not preventing them from doing so.
I will say that if you want to make the alternative argument the best one is one of the few that’s ever dealt with the topic directly in a Federal court. In the 1970s a reporter from The Nation was denied a press credential by the Secret Service on security grounds, but was given no information about why. A circuit court eventually ruled the government had to give him some level of information about why, and have a standardized process for doing the security reviews.
What’s interesting is in that case both the judges AND lawyers for the defendant (the government) engaged in some speech about their thoughts on rights of the press to have access to these credentials and the press briefing room, both said the President couldn’t just discriminate against a press member who wrote things they didn’t like. Now, that wasn’t germane to the ruling, and The Nation reporter after a bunch of wrangling was eventually approved for a pass (he never used the pass to attend a White House press briefing though, basically saying he thought the White House press briefings were a waste of time.)
My opinion is that’s basically the political beliefs of a different era of judges and different era of Americans, when I think the press rights in general were at their apex. My prediction if this was litigated against Trump in this era is he’d likely lose at the district or circuit court level but would win in the Supreme Court.
None of which answers the question: How do they deny CNN entry without saying that it’s not to penalize them for their use of free speech?
Unless you can suggest something, I think there’s plenty of jurisprudence on other topics that say that if you’re part of the government, you may not - under any circumstance - act to infringe on or penalize someone for their speech. And this is clearly an example of doing so.
I have trouble imagining a difference between a press briefing - members of the press gallery ask questions, president or spokesperson answers; versus say a town hall meeting where members of the public ask, or a city council meeting that invites questions from the audience.
As for “how did they bar the CNN reporter?” they told her to leave because she was being to disrespectful… something that is “in the eye of the beholder.”
A town hall meeting is explicitly open to anyone and everyone. The press briefing is by invitation. Not sure why that is difficult to imagine. And a town hall meeting doesn’t need to offer everyone a platform to speechify. You get a limited amount of time to ask a question, and it would be unusual if everyone got to be in on the question asking. If you exceed your time allotment and start speechifying, you could be removed from the meeting. If it’s truly a public event, it’s possible that the mayor (or whoever) could not selectively remove the speechifiers based on content. But I honestly don’t know.
There is nothing stopping the president or the mayor of a town from having a closed, invitation only event. And they can invite anyone they like. But that’s not a town hall meeting.