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.
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.
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