The free press gets on the president’s nerves. It’s supposed to.

President Donald Trump speaks to members of the media before boarding Marine One on the South Lawn of the White House on Nov. 26. (AP Photo/Andrew Harnik)President Donald Trump speaks to members of the media before boarding Marine One on the South Lawn of the White House on Nov. 26. (AP Photo/Andrew Harnik)

A love-hate relationship between politicians and reporters is normal. Politicians need publicity to attract and keep voters. Reporters need political access to deliver content. Both crave independence and control.

This dynamic takes on constitutional importance when politicians use their authority as government officials to stifle investigatory journalism or discriminate against reporters based on their viewpoints. The bedrock principle of neutrality toward the press predates the Constitution and was most famously embraced in the colonies by New York juries that repeatedly refused to indict and convict Peter Zenger, who was arrested for seditious libel after printing articles unfavorable to the governor.

Advertisement

A more recent disruption of the balance of power between a chief executive and the Fourth Estate was the Trump administration’s revocation of CNN reporter Jim Acosta’s White House “hard pass,” which grants access to otherwise restricted areas, on Nov. 7. The action was met by unanimous opposition from the press. Even Fox News, which has an unusually close relationship with President Trump and his staff, sided with Mr. Acosta, stating that “Secret Service passes for working White House journalists should never be weaponized.”

Mr. Acosta’s pass was confiscated after a lengthy repartee with the president during a White House press conference and the erroneous accusation that Mr. Acosta placed his hands on an intern who was trying to take a microphone away from him. The immediate controversy was put to rest when U.S. District Court Judge Timothy J. Kelly, who had been appointed by President Trump, ordered the White House to temporarily reinstate Mr. Acosta’s pass.

Politicians need publicity to attract and keep voters. Reporters need political access to deliver content. Both crave independence and control.

The White House then made a “final determination” granting Acosta continued access, but it also asserted that future press conferences will be governed by “rules,” enforced by the suspension or revocation of hard passes, that limit journalists to only one question when they are called on (unless specifically permitted to ask a follow-up) and require them to “yield the floor” by “surrendering the microphone” after asking their permitted question(s).

The first White House press briefing since Mr. Acosta’s reinstatement was uneventfully civil. The “rules” were not mentioned, and White House Press Secretary Sarah Huckabee Sanders, who presided over the briefing, permitted several journalists, including Mr. Acosta, to ask follow-up questions. Whether or not the Acosta incident results in a more docile press, further confrontations between reporters and Mr. Trump, or the end of presidential press conferences, it calls into question the scope of First Amendment free-press protections.

The First Amendment states, in part, that “Congress shall make no law...abridging the freedom of speech, or of the press.” The use of the disjunctive “or” suggests that freedom of the press is different from freedom of speech, but in Branzburg v. Hayes (1972), the Supreme Court declared, “Freedom of the press is a ‘fundamental personal right’ which ‘is not confined to newspapers and periodicals.’” Similarly, in Pell v. Procunier (1974), the court held that the First Amendment does not “accord the press special access to information not shared by members of the public generally.”

Nevertheless, Justice Potter Stewart, who wrote the majority decision in Pell, later articulated a distinction between speech and press freedoms, in Houchins v. KQED, Inc. (1978) (concurring):

That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively. A person touring Santa Rita jail can grasp its reality with his own eyes and ears. But if a television reporter is to convey the jail’s sights and sounds to those who cannot personally visit the place, he must use cameras and sound equipment. In short, terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public what the visitors see.

Recognizing a distinction between rights granted the public and the “institutional press” is problematic, however. As the court noted in Branzburg:

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

These quaint references to 20th-century printing methods highlight how impossible it is in today’s digital media age to effectively distinguish between “the press” and “the public.” Nevertheless, limitations of time and space restrict the number of people who can have physical access to and ask questions during certain events, such as in-person White House press conferences. Consequently, First Amendment jurisprudence permits reasonable time, place and manner restrictions that, with regard to reporter access, often are moderated by nongovernmental credentialing authorities.

As the Trump administration learned, direct government action against a specific reporter is prohibited unless justified by a compelling interest.

White House hard passes typically are limited to reporters who have been granted membership in the U.S. Senate daily press gallery and then pass Secret Service clearance. Applications for the Senate gallery are reviewed and granted by a committee of current members, and acceptance is limited “to bona fide correspondents of repute in their profession” who are full-time, paid correspondents of recognized news organizations.

Reporters with hard passes also must compete for White House briefing room seats, which are assigned by another nongovernmental organization, the White House Correspondents’ Association. These established avenues of credentialing favor conventional journalists and sometimes deny access to respected reporters, but the buffer they provide reduces the possibility of unconstitutional, viewpoint-based interference with a free press.

As the Trump administration recently learned, direct government action against a specific reporter is prohibited unless justified by a compelling interest. Two reasons were given for the revocation of Mr. Acosta’s pass—his disruptive behavior at the press conference and presidential discretion. Both raise constitutional issues, but the former is more easily determined by application of traditional due process standards.

In Sherrill v. Knight (1977), the U.S. Court of Appeals for the District of Columbia held that “where the White House has voluntarily decided to establish press facilities for correspondents,” the Free Press Clause requires “a compelling governmental interest” to justify refusal to “bona fide journalists.” As a result of the Sherrill decision, federal regulations were promulgated that establish “physical danger to the President and/or the family of the President” as the only criterion the Secret Service may use for denying or revoking a White House press pass. The Sherrill court also held that due process protections must be given to hard pass applicants and holders.

The Sherrill decision formed the basis for Judge Kelly’s ruling that, absent emergency situations, revocations of White House hard passes must be based on violations of written standards applicable to all similarly situated reporters and preceded by an opportunity to rebut the allegations. The “rules” presented to Mr. Acosta by the Trump Administration regarding press conference decorum do not give adequate due process notice because they were sent in a private letter and not formally announced by the White House.

Despite due process restrictions on formal government benefits, the government may exercise nearly unbridled discretion to grant or deny reporters informal access to the president. As then-Chief Justice Earl Warren wrote in Zemel v. Rusk (1965) (upholding the prohibition of a reporter’s trip to Cuba), “entry into the White House [is not] a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.”

Judge Kelly echoed this analysis when he stated, “the First Amendment does not restrict the ability of the President to dictate the terms of how he chooses to engage or not engage with any particular journalist. Certainly, he need not ever call on Mr. Acosta again.”

This blunt statement accurately describes the limits of free-press protections. Disfavored individuals cannot summarily be denied access to public events or ejected from limited events, but they also cannot coerce the government to give them favored status. Government officials tempted to push the limits of their discretionary authority to completely freeze out opposition reporting and establish a de facto state-sponsored press risk judicial expansion of free-press rights, but, in a functioning democracy, are more likely to be disciplined by an even higher authority—voters.

[Want to discuss politics with other America readers? Join our Facebook discussion group, moderated by America’s writers and editors.]

 

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
J Cosgrove
3 months 2 weeks ago

But the corrupt American press is not free. Someone expressed it very well

Modern journalism is all about deciding which facts the public shouldn't know because they might reflect badly on Democrats.

What does the law say about the press who do not report the truth? Often by omission. The press are all-in on the biggest fake news story in history, Russian Collusion.

Mark Chandler
3 months 2 weeks ago

Thank you for demonstrating the importance of an independent and free press. If we did not have a free press, then people like you who are opposed to the truth would take over. No moral person could vote for Trump, or his minions. This article is all about trump's efforts to interfere with learning the truth.

J Cosgrove
3 months 2 weeks ago

Thank you, I have been searching for someone who is both a morally and socially better person than I and who also knows the truth,

Frank T
3 months 1 week ago

Thank God that we have Cosgrove to inform us on the difference between truth and fiction.
Only the most ethical and informed among us can lead the way.
Apparently, everything that we read or watch is tainted.
Seems as if Catholic Bishops aren't the only folks who live in a state of entitlement and delusion.

Robert Klahn
3 months 1 week ago

Shouldn't be hard to find.

Robert Klahn
3 months 1 week ago

Socially better? The lowest member of the lowest social strata is right when he speaks the truth.
An ordinary American who speaks the truth should be good enough.

Dionys Murphy
3 months 1 week ago

"Thank you, I have been searching for someone who is both a morally and socially better person than I and who also knows the truth," - Wow. Thank you for exposing yourself as the dangerous narcissist you are.

J Cosgrove
3 months 1 week ago

Can you read? Apparently not. But again thank you for helping me make my point.

Robert Klahn
3 months 1 week ago

There is very little doubt that there has been Trump-Russia collusion.
The question is, which Trump?
His kids would go off the deep end without hesitation to get daddy's approval.

J Cosgrove
3 months 1 week ago

There has been zippo evidence on Russian collusion by the Trump campaign. If you are referring to the meeting of the Russian lawyer, Natalia Veselnitskaya, with Donald Trump Jr, at Trump Tower, that was a setup. The meeting was arranged by Fusion GPS which was employed by the DNC and they reported back immediately to Fusion GPS after the meeting. Also at all these meetings were Rinat Akhmetshin, a Russian American lobbyist and a Clinton friend.

J Cosgrove
3 months 1 week ago

Quote - Transcripts released Wednesday by the Senate Judiciary Committee say that Glenn Simpson, the co-founder of Fusion GPS, had dinner with Russian lawyer Natalia Veselnitskaya both the day before and the day after she met with Donald Trump, Jr. at Trump Tower on June 9, 2016.

Douglas Fang
3 months 1 week ago

“…If I shot someone in the middle of Fifth Ave, I’ll not lose any vote…”

“…The press is the enemy of the people…”

Never in my life, I have seen such an AMORAL person that holds the most powerful position in the history of mankind. Trump lies every day, thousands and counting since he became POTUS – he’s the textbook pathological liar that should be used as the study case in psychological classes in the future.

Robert Klahn
3 months 1 week ago

Trump has been identified as a Narcissist by so many qualified diagnosticians that it becomes questionable whether he is capable of recognizing a truth that is unflattering to him.
Which would mean he is not a liar, just a totally deluded nut case.
OK, I believe he knows he is lying too.

Phillip Stone
3 months 1 week ago

The mass media have nothing to be proud of in these days.
No wonder people have stopped buying newspapers and magazines and are refusing in vast droves subscribe to papers and magazines behind paywalls.
In Australian, decades ago, one of our States had a Premier just like Donald Trump. He described press conferences and interviews as "feeding the chooks", prescient. One of his notable one-liners was "What is the point of having power if you don't use it?"

Dutch Brewster
3 months ago

Here's some shocking news: judges do not always get it right. Booting Jim Acosta was not a free press issue; it was a kick out the unruly ass issue. Freedom of the press was not endangered by Acosta's temporary excommunication; it was enhanced.
Your superficial analysis is quite faulty. As someone who was a radio and print news reporter for 20 years, I am appalled at the state of "reporting" in our country and the chokehold with which special, heavily biased interests control the flow of news. They do not seek the common good; they seek their own benefit. Furthermore, you are patently wrong: it is not the purpose of journalism to get on the president's nerves; it is the purpose of journalism to get to the facts and the significance of those facts. If that process happens to get on the president's nerves, then so be it. But it cannot be the purpose of genuine reporting.
Lastly, citizens can cast votes in many ways, including in the sphere of media and economics. Many such votes are being cast now, and outlets like CNN are feeling the disapprobation of their deliberate, dissembling, fake news style.

Advertisement

The latest from america

Israel’s upcoming election, which takes place on April 9, is casting uncertainty over House of Grace’s future.
Eloise BlondiauMarch 26, 2019
The freshness and wonder, the way that what was there before still exists but is now shot through with newness. The city glitters. Why not? Lent is the season of baptismal preparation as much as penance.
We have experienced God’s benevolent interventions in our own lives.
Lucetta Scaraffia, editor in chief of "Women Church World" a monthly magazine distributed alongside the Vatican newspaper L'Osservatore Romano, poses in her house in Rome. (AP Photo/Domenico Stinellis, File)
"We are throwing in the towel because we feel surrounded by a climate of distrust and progressive de-legitimization," founder Lucetta Scaraffia wrote in the open letter to Pope Francis.