Just a few months ago in December, Press Secretary Sean Spicer told the world that it is open media access which distinguishes a democracy from a dictatorship. This statement has become fairly ironic after, a little over a week ago, several news outlets which had previously reported unfavorably on President Trump were barred from a private press briefing in Sean Spicer’s office. This press briefing replaced the usual daily public briefing. Most of the biggest media outlets were allowed a representative at the meeting: NBC, ABC, Fox News, and CBC. However, several much smaller, heavily conservative, news outlets were also given a seat at the table: the Washington Times, the One America News Network, and Breitbart–the far-right news organization founded by White House Chief Strategist Steve Bannon. The news organizations banned from the meeting included CNN, the New York Times, the Los Angeles times, and nearly every foreign news provider including the BBC.
Media outlets, both those invite to the meeting and those barred, have spoken out against the move; calling it “unamerican” and an unprecedented move towards a lack of transparency. The move has also received substantial criticism from the public. Much of this criticism is focused either on the importance of a government that is accessible to its people and the potential that the move violated the First Amendment.
Closed doors meetings, only inviting those media outlets most favorable to an administration, certainly smacks of impropriety. However, to call it a violation of the First Amendment is going a bit further than the legal reality. So let’s look at exactly what the White House did here, why they say they did it, and exactly how what they did interacts with the First Amendment.
Why They Say They Made the Change and How it is Legal
When the government is keeping out news reporters because they don’t like what they say, that’s bad news for the country. Protecting political speech and the transparency of government to comment on their actions is crucial. Were the stated goal of the government in keeping specific news outlets, those unfavorable to them, to silence their opposition then there would be a serious case that they are violating the First Amendment. However, the White House has provided a more neutral reason behind their choice to conduct themselves as they did.
While Sean Spicer has promised to “aggressively push back” against news outlets negatively reporting on the Trump administration, he says this is not the reason for limiting access to the press briefing. Instead Mr. Spicer stated that the space for seating was limited that day due to time and space being more limited due to President Trump’s CPAC speech earlier the same day. It is true that it is fairly common for the press to be represented by a smaller press pool. The members of this pool rotate from day to day and report what they are told to the remainder of the certified press. What Sean Spicer did was choose to allow a few extra news outlets, news outlets most favorable to the Trump administration, to join that small group.
It may or may not surprise you that there is no actual requirement for the government to give reporters completely equal access to information based on the First Amendment Freedom of the Press. However, when the government opens up a public forum such as the daily press briefings have been for decades they are required to allow access to the press in a neutral manner. This means that they can’t act with the intention of limiting access to those whose message or coverage they prefer. Sean Spicer’s stated reason of limiting access, the amount of space, is likely a neutral approach–even if the result of their actions looks like they are favoring news outlets which report more positively on the administration. If this happened several more times, with the same people left out, the story might change as the neutral explanation of lack of space and time would become less believable.
The concept of the government and politicians allowing more access to reporters they know to be favorable to their cause is far from a new one. There have been many cases, both very recent and decades since finished, which have addressed the issue.
Repressing the Press: Court Rulings on How the Government Can Limit Press Access
Since a 1977 U.S. Court of Appeals ruling, the White House press facilities have been public sources of information for the press afforded First Amendment protection. This means that the access of the press cannot be denied arbitrarily for less than a compelling reason. Any restrictions must be no more arduous than necessary and individual reporters–from specific publications–cannot be arbitrarily excluded from a source of information such as a White House press briefing. That basically just means the White House needs to be able to provide an explanation for any limitations, especially when it comes to barring specific publications. They also need to make their limitations as narrow as possible. This means that if space and time was indeed limited, they’ve provided sufficient reason for their actions barring a proven bias in who was allowed in.
This doesn’t mean that the government must always offer all types of access neutrally. There have been several cases in the past establishing that a government official can choose who they want to give an interview to, and even bar their employees from speaking to some news providers. They just can’t call a press conference and limit who can show up by barring specific reporters or news sources.
In fact, just around a week ago another ruling has come out of New York clarifying just this issue. The preliminary ruling decided that the New York Police Department had acted unconstitutionally by revoking the press credentials of a specific reporter. The fact that they targeted a specific reporter based on the content of his reporting, although the NYPD stated they had neutral reasons behind revoking the man’s press pass, made their actions unconstitutional in the eyes of the judge on the case because they amounted to the government censoring a particular viewpoint in a public forum–a concept known in law as viewpoint discrimination.
Trump’s War With the Media
The choice to limit those who could attend a press briefing might not always have raised as many eyebrows as it has here. President Trump has repeatedly attacked the media’s reputation and veracity, claiming that they either do not report on the right things or are misrepresenting him. While he has made these claims repeatedly, he has not yet provided any evidence supporting these serious accusations. However, regardless of the truth of President Trump’s words, the comments have drawn substantial attention to his relationship to the press.
President Trump is far from the first President to criticize the media, however he has taken his attacks further than any president has before–to the point of essentially questioning the legitimacy of the media altogether. This is a huge accusation to make with very little evidence. It is because of this that, when the White House chooses to limit press access, alarm bells are immediately raised. Regardless of what you think about the media, allowing the government to limit which media outlets receive information has potentially terrifying implications when it comes to making our own government transparent to the people it serves. This being said, the White House has not yet crossed any legal line. There has been no similar limitation on access since President Trump’s CPAC speech. While it is important to information about our government as available to the people as possible, for now the White House has done nothing unconstitutional.
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