Author Archive for Jonathan Lurie

Net Neutrality: Is This the End?

Towards the end of last month, FCC Chairman Ajit Pai began to take steps to block elements of an order from Obama administration dealing with privacy and net neutrality–the effects of which were set to take effect at the beginning of this month.  Since then, with many already sounding the death knell for net neutrality, the FCC has softened its stance slightly but many remain concerned about the future of net neutrality as a policy as Mr. Pai continues to take steps with the potential to weaken the steps the Obama administration took.

We’ve explored the Obama administrations strides in strengthening net neutrality and an open internet in the past–from the FCC’s Open Internet Order in February of 2015 to last October’s vote limiting the amount of information, types of information and manner in which your internet service provider (ISP) can mine your personal data.  Both of these changes were opposed by Mr. Pai when they were introduced.

Since the advent of the Trump Administration, and the appointment of Mr. Pai, there has been a notable pivoting towards deregulation of ISPs.  With this mind, let’s take a look at what the regulations being affected do, and what their likely future will be.

The FCC’s Approach to Net Neutrality and What it Means?

The Open Internet Order is almost certainly the single most substantial advancement towards net neutrality our government has taken in a decade–finally providing a means of actually enforcing net neutrality as a concept.  Net neutrality, for those unfamiliar with the term, is the concept that internet providers should treat all data on the internet equally—regardless of source.  All information passing through broadband networks and backbone networks should be given equal priority to the extent possible without effecting function.  For instance, text on a website can have data packets arrive in any order while video and audio must arrive in a specific order and in a timely fashion to function—net neutrality doesn’t require companies to ignore the concerns of functionality.

net neutralityWhat net neutrality does is prevent blocking of content, throttling content (intentionally slowing down some content or speeds up others), and paid prioritization where some services are stuck in a “slow lane” because they do not pay a special fee. Essentially, it keeps ISPs in the business of charging users for internet connection as opposed to charging edge providers for users while the people buying internet service from them suffer.

The Open Internet Order, a 183-page behemoth, changed the classification of ISPs to that of a public utility such as telephone services–often known as common carrier status.  It also sets forth five rules that ISPs must abide by:

  1. ISPs “may not block access to legal content, applications, services, or nonharmful devices.” In other words, ISPs can’t block access of any legal user to any legal website.
  2. ISPs can’t throttle, or slow down, the delivery of any legal internet traffic.
  3. ISPs can’t make a company pay to give its data packets priority delivery or prioritize the delivery of data from their own services.
  4. ISPs can’t adopt practices which would harm consumers or people providing services on the internet.
  5. ISPs must offer transparent specifics on how they run their broadband networks.

The policy also provides for an exception for reasonable management of a broadband network. ISPs are allowed to prioritize data so as to keep things running smoothly, but cannot use this for their own commercial advantage.

Getting to this point, however, was quite an uphill battle, both in the courts and within the FCC itself. The FCC initially proposed much weaker regulations.  However, the combination of a call from then-President Obama for stronger rules, 4 million comments filed with the FCC, and protesters who went so far as to sit in the FCC Chairman’s driveway and demand a stronger policy, all came together to convince the FCC to pass the final version of the Open Internet Order.

This progress seemed to come to a standstill after a February 24th statement from the FCC declaring that Mr. Pai had taken steps to block the privacy rules mentioned above–changes which were set to go into effect at the beginning of this month.  This statement was widely taken as a first step towards rolling back the clock on net neutrality and common carrier status for ISPs–many speculated an ultimate goal of deregulating the market as much as possible.  Indeed, the language of the statement included commentary noting that Mr. Pai intended to “harmonize the FCC’s privacy rules for broadband providers with the [Federal Trade Commission]’s standards for others in the digital economy.”  This was taken as an implication that Pai aimed to remove common carrier status from ISPs–treat them the same as others in the digital economy.  This would basically neuter the Open Internet Act by undermining the legal premise on which it applies authority to ISPs in the first place.

The Future for Net Neutrality

The fears of those in support of net neutrality, an end to net neutrality as a concept, does not appear to be in the cards at this point.  Instead the likely outcome, based on the comments coming out of the FCC and those reporting on the FCC, is a substantial weakening of the Open Internet Order.

It is still unclear exactly what form this would take.  However, it has been implied that it would likely to see changes allowing ISPs to prioritize data in certain situations–basically creating carveouts to the general rule.  There’s no particular indication as to what these carveouts might include, but it is easy to imagine a situation where exceptions could swallow the rule.

A large part of why Mr. Pai is likely to take this approach is that the Open Internet Order is already final and has endured the rigors of fierce court challenges; precedent is on its side.  This means that just killing the rule would be fairly difficult for the FCC.  If the rule was to be fully stripped away, it would most likely involve an act of Congress explicitly doing so.  However, Congress and the Trump administration do not seem to be making such legislation a priority.

The argument against net neutrality and the Open Internet Order has always been that it takes away ISP’s motivation to improve the speed and capacity of their networks–although precious little evidence of this has actually been produced.  Frankly, the dangers of allowing ISPs to control access on the internet seem far greater.  The Open Internet Order doesn’t seem to be on the chopping block, but we’ll have to see if what we’re left of the Open Internet Order will actually accomplish what it set out to do.

CA Supreme Court Declares Government Emails to be Official Records

Private emails used for public business have been more than a little bit of a sticking point for several high profile politicians.  It would hardly be an exaggeration to say that private emails characterized our most recent election.  In a streak of extreme irony, it even came to light a few weeks back that Vice President Mike Pence had used his private email account to conduct official government business while he was Governor of Indiana.  The difference between the two incidents–Clinton and Pence–being that while Clinton sent emails through a server set up for the private use of her family; Pence sent emails from a plain Jane AOL account.

government emails

Frankly, both of these incidents are far from a new concept and neither deserved anywhere near the scrutiny they received.  It’s remarkably common for government agents to use private email accounts–so much so that a recent California Supreme Court case pitting the City of San Jose against one Ted Smith has ruled that the California Public Records Act (CPRA) and the California Constitution demand that the public be allowed access to the private emails and personal devices of government officials where the officials use these tools to conduct public business.

There are many who would salivate at the opportunity were such a ruling on the federal level.  However, the Freedom of Information Act (FOIA)–the federal predecessor of the CPRA–has a number of differences from California’s Public Records Act which make a ruling of this sort highly unlikely on a federal level.  To fully understand why, let’s look at the California Supreme Court case itself, as well as the differences between FOIA and the CPRA.

Figuring Out Where Private Meets Public

The case the California Supreme Court just decided started all the way back in June of 2009 when Ted Smith used the CPRA to request the disclosure of 32 categories of public records from the City of San Jose, its agency handling redevelopment, and a number of other named government officials and employees.  Some of the documents Mr. Smith asked for included text messages and emails sent or received on private electronic devices used by the mayor and a number of government officials and their staffers.  San Jose responded to the request with all the communications made with official city accounts, but refused to produce anything from a personal account.

Mr. Smith was unsatisfied with this result, and sued to get the information from the personal accounts as well.  At first, Mr. Smith won access easily with the district court giving him access to the documents through summary judgment.  However, the Court of Appeals basically issued an order telling the city not to disclose.  Now, nearly 8 years later, the California Supreme Court has finally decided that the CPRA guarantees Mr. Smith the right to access these personal accounts.

CPRA v. FOIA

As mentioned above, FOIA is one of the most substantial leaps in government transparency of the last century.  Made law in 1966, the Act allows for the full or partial disclosure of otherwise unreleased information held by the U.S. government upon a request from the member of the public following certain procedures.  The Act requires every agency to, upon any request for records which reasonably describes those records, to promptly make the records available to the person who asked.  The law also gives courts the power to order production where an agency refuses to produce documents which are properly requested.

FOIA itself has been subject to quite a bit of limitations over the years.  While the Privacy Act of 1974 expanded the power to request documents under FOIA, the Act has a number of specifically enumerated exceptions that are quite broad.  These exceptions include the following:

  • Information related to information where disclosure would constitute a breach of privacy (especially relevant in the context of comparing FOIA to the CPRA ruling)
  • Information relating to national defense,
  • Foreign policy documents
  • Information related solely to internal personnel rules and practices,
  • Information related to accusing a person of a crime,
  • Information related to investigatory records where the information would harm the proceedings,
  • Information which would lead to financial speculation or endanger the stability of any financial institution
  • Information related to the agency’s participation in legal proceedings.
  • Information exempted by a specific statute.
  • Information related to financial agency operations
  • Law enforcement records
  • Federal agency internal memorandum, and
  • Oil well data.

As you can see, the exemptions are quite broad and quite numerous.  The first exemption, ruling out info that would breach the privacy of individuals would obviously put a serious cramp in any ruling such as the California Supreme Court’s recent decision.  However, it serves to highlight the distinction between FOIA and the CPRA.

Many states have their own versions of FOIA which mirror it to some degree or another, the CPRA is California’s.  So similar are they that case law dealing with FOIA is often accepted in reaching decisions under the CPRA.  However there is a substantial distinction between the two laws, and that distinction is a doozy.

The CPRA states that  “access to information concerning the conduct of the people‟s business is a fundamental and necessary right of every person in this state.” In fact, since 2004, it has been a right guaranteed by the California Constitution.  This means that, although the CPRA is subject to several exceptions, its provisions have much more legal punch than FOIA could ever hope to have.

At the same time, the California Constitution also guarantees something else no other constitution in the U.S. offers–state or otherwise.  A constitutional right of privacy.  These two guarantees came into play in the CPRA decision.

Understanding the CPRA Decision

These two constitutional guarantees–access to public records and privacy–were the central conflict of the California Supreme Court’s decision.  The court felt that, while public access must yield to personal privacy on some occasions, the importance of government accountability is an even stronger interest–at least most of the time.

The constitutional right of public access in California explicitly does not supersede of modify existing privacy rights.  However, the Court felt that the ability to essentially hide information from the public by exploiting a loophole for public business sent via a nongovernment account.  They recognized that an agency is not a monolith, but rather a sum of its employees.  For those reasons, the public business sent by those individuals should be accessible to the public.

The ruling did provide some limits to this access, any information sought must relate in some substantive way to the conduct of the public’s business.  This determination would look to the context of the communication, the content, the audience, etc.  Where a determination finds that the content is primarily public business, the ruling could allow access to Twitter messages, Facebook messages, private emails, physical smart phones, and more.  State employees can file affidavits with factual support of the personal nature of a communication in order to avoid a requirement of disclosure.

Government Emails are Public, But Only in California (For Now)

This ruling represents a huge step in public access.  Unfortunately, the ruling is almost certainly unique to California–neither FOIA or any other state analog is similarly situated for a ruling to allow such access.  That being said, such changes are not totally out of the question.  For example, Washington courts have situationally allowed access to private communications addressing public matters via court rulings on FOIA.  There will continue to be a tension between the access of the public and the privacy of government employees as this area of law develops–and rightly so.  However, it is hard to argue that increasing government transparency is not in the public’s best interest.

DAPL: Protest Camp Burned to the Ground, What’s Next?

A few weeks back, heavily armed and outfitted police took the final steps in clearing out the camp which has housed Dakota Access Pipeline (DAPL) protesters for over a year; carrying out a raid removing the last of the peaceful protesters from a burnt down camp

The protest has, from start to finish, been totally peaceful on the part of demonstrators, however the final raid is just one of many intense and heavily armed encounters between the protesters and police or DAPL security personnel.  While in the immediate wake of the raid many thought the police themselves burnt down the camps, it has surfaced that the reality of the situation is that the demonstrators themselves held a ceremony in which they burned down their tents in order to not see them destroyed by others.

North Dakota Gov. Doug Burgum had set a final date by which all protesters needed to leave the camp or face arrest.  Those who left prior to this cutoff date were told that they would not face arrest and would be provided with vouchers for buses and lodgings away from the camp.  While the camp had once housed as many as 10,000 people, when the Gov. set his cutoff date only that number had substantially diminished.  The majority of the remaining protesters had left the camp after the ceremonial fires the day of the cutoff, marching out arm in arm.  When the raid began, counts left those remaining between forty and a hundred demonstrators.  The police moved in on these remaining few the day after the cutoff, February 23rd, and arrested dozens of people with at least one recorded arrest appearing to seriously injure a peaceful protester.

DAPL

This raid has come less than a month after President Trump’s executive order reversing an Obama administration order to stop construction on the pipeline.  The Standing Rock Sioux had long argued that the pipeline violated their treaty rights by failing to properly consult them as to the construction of the DAPL through their ancestral lands–lands they had the right to protect under both previous court rulings and treaties between the tribe and the government.  They argued that the environmental impact of the pipeline would render much of the drinking water their tribe uses undrinkable.  There is some serious evidence to support their concerns, the original plan for the pipeline was changed to this new location through their lands after fears of pollution made the pipeline shift away from a populated city.  Just last December, there was big oil spill right by where the Standing Rock camp used to be with about 130,00 gallons of crude spilling into Ash Coulee Creek and yet more seeping into the surrounding hills to potentially contaminate ground water.  An investigation was unable to provide a reason why the spill occurred so no further action has been taken.

It was because of dangers like these that the Obama administration halted the construction for a much more thorough review of the potential environmental impact of the pipeline.  Trump’s order substantially truncated that review and ordered his agencies to approve the pipeline as quickly as possible.  So with Trump’s order and the camp burned to the ground, it is easy to look at the DAPL protests as a finished battle.  However, while the camp the protesters stayed at might lay empty the struggle of the DAPL still has a number of battles still ongoing in the courts.

The Ongoing Legal Battles of the DAPL Protesters

First and foremost, the order of the Trump administration pushing through the DAPL is itself facing legal challenges from organizations supporting the DAPL protestors.  This action seeks to enforce the treaty rights discussed above and argues that the truncated approval process continues to violate these treaty rights.  This lawsuit will be the forefront of the efforts to halt work on the DAPL.  However, it is far from the only ongoing legal battle stemming from the DAPL and the actions of the government.

Lawsuits have also cropped up, some months back over excessive force on the part of the police and DAPL security in how they’ve dealt with otherwise peaceful protesters.  Most have seen the videos of high-power hoses, dogs, and pepper spray used on non-resisting protesters.  As mentioned above, the most recent raid resulted in what appeared to be a serious hip injury to a protestor.  These ongoing lawsuits are based in a claim of excessive force, a cause of action which generally requires the plaintiff to show that the police used more force than was reasonably necessary.  A determination of how much force is necessary looks to many factors, such as the amount of force used, whether the force was used against an armed suspect, and whether the suspect was subdued prior to using the force.  Another element commonly looked to in these cases is whether the force was in line with police procedures for use of force.  Where it is, it can be very difficult to succeed in such a case.

The force used by police and DAPL security is often well documented through video evidence.  However, these type of cases hinge on the unreasonableness of the amount of force.  This can be very tricky to prove in court.  What’s more, while many criticize the arrests as a violation of the First Amendment right to assemble the legal reality is that, while the arrests certainly appear to use much more force than necessary for peaceful protestors, the right to assemble is not without some exceptions.  The government can put neutral restrictions (restrictions not targeting a specific group or viewpoint) on the time, place, and manner of assembly.  This often takes the form of permitting for protests.  Refusing to grant such a permit may be a violation of the right of free assembly, however the right does not grant as much protection to these unpermitted protesters as many seem to believe–regardless of how good their cause may be.

Finally, there are also lawsuits challenging the police use of warrants to seize and search the Facebook accounts of DAPL protest organizers.  These lawsuits hinge on the warrants violating constitutional protections by being too broad as to be permissible and chilling political speech.

Unforeseen Consequences of the Protests

While the legal battles in the court rages on, the protests will also have a lasting effect due to lawmakers around the country.  In an unfortunate turn of events the DAPL protests, along with the increasing number of protests around the country, have led to laws being passed making it harder to protest.

Just recently, we discussed a proposed Arizona law which would have allowed police to arrest peaceful protestors before any crimes were actually committed, target organizers specifically, and seize assets of those who had not even yet attended a protest.  Fortunately, this bill has since been discarded, but it is far from alone.  Ten different states have proposed legislation expanding the definition of protesting, making more elements of protesting illegal, and enforcing harsher punishments against protesters.  In North Dakota, where the DAPL protesters are based, bills have been passed making it illegal for a protestor to wear a mask (even to protect the face from the elements or pepper spray) and changing rioting from a misdemeanor to a serious felony carrying a penalty of a $20,000 fine and 10 years in prison.

There is very little more American than political protest, we owe the very seeds of our nation to it.  However, we unfortunately also owe our nation to lands taken unfairly from Native Americans.  This has led to the many court cases supporting the treaty rights and land rights of tribes such as the Standing Rock Sioux.  It is sad to see the response to their protests be so violent and end in flames.  They have many legal battles ahead of them, some with a better chance for success than others.  Hopefully, the results of these legal battles will be the ultimate legacy of the DAPL protests and not a perverse response to criminalize the very thing our country was founded on–political resistance.

Travel Ban 2.0: Trump’s Second Attempt to Ban Immigration

The initial executive order out of President Trump’s White House regarding limiting immigration to the U.S, widely known as the “Muslim Ban,” was an unmitigated disaster.  Rolled out overnight, the order caused chaos across the country as agencies tried to put the order’s new rule into force.  It also drew immediate legal challenges from numerous states, all challenging the order-in whole or in part-as unconstitutional.  Several of these legal challenges succeeded; most notably a challenge out of the state of Washington which culminated in a preliminary injunction–an order preventing the “Muslim Ban” from taking effect whatsoever until the Washington case is fully litigated.  In the face of court order saying that the order was most likely unconstitutional, and the fallout of the original implementation of the order, President Trump did something we perhaps should all have expected-he signed and put into force a nearly identical order.  On Monday, March 6th, President Trump issued an executive order titled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into the United States.”

In the past we’ve already covered the effects of the ban, the constitutional problems intrinsic to the ban, the many lawsuits brought after the ban was passed, and the injunction which ultimately put an end to it.  So with that in mind, you’ve got to know that we’ve got some thoughts about Trump’s second iteration of the ban.  So without further ado, lets dive into it–the changes between this new order and the original order courts ruled to be likely unconstitutional, the chances that this order will stand, and the legal challenges the order already faces.

How is This Order Different From the One Courts Already Stopped?

travel banThe short answer, it isn’t very different.  The order still targets specific Muslim majority countries, barring immigration from those countries for 90 days. It also still cuts the number of refugees allowed to be admitted to the U.S. per year by more than half.  However, with this being said, there are some important changes in effect from the initial order–mostly designed to make the order appear more kosher to the courts.

The new version of the order has removed the indefinite ban on the U.S. taking in any refugees out of Syria.  Instead, the order includes a 120-day freeze on taking in those refugees.  However, the order also includes the ability to renew the ban for a longer period of time upon review.  It also doesn’t include any limits on the number of times the ban can be renewed, so in effect the ban could very well be indefinite.

The order also has removed Iraq from the original list of countries slapped with a 90-day immigration ban, leaving only the other 6 original countries.  The reason for this change is a request from the Defense Secretary, fearing that such a ban would injure the U.S.’ ongoing efforts to fight ISIS in Iraq.  The order doesn’t take a ban on immigration out of Iraq off the table though, threatening to put the country back on the list if Iraq’s  leaders don’t increase their amount of intelligence they share with the U.S.

The new crack at the ban also has eliminated language specifically offering preferential immigration status to “persecuted religious minorities.”  This was one of the most widely criticized elements of the order, both by the public and in legal challenges to the order.  The thought being that the provision was designed to favor other religious groups over Muslims.

As opposed to the frenetic same-day introduction of the last immigration ban, the Trump administration has allowed for a slower implementation and time to prepare for implementation.  The ban only goes into effect ten days after its signing–March 16.

The order has a number of other changes.  The order includes specific details about why the six countries hit with the 90-day ban were selected; presumably to strengthen the order against the many legal challenges saying the order was targeting countries based on their Muslim majority.  The order focuses its details sections on the statistics regarding terrorism for each country selected.  The order also no longer affects current visa holders or refugees already granted asylum.

So you’ve likely noticed that these changes are, intentionally, targeted at trying to make the order stand up to the scrutiny of the courts.  In order to determine whether it has succeeded, let’s look at why the last order got hit with an injunction.

Why Was the Last Order Blocked?

Since we’ve covered this issue in previous articles, we’ll keep the discussion of why the last order couldn’t pass constitutional muster on the short side.

A preliminary injunction is granted where the party seeking it can show that they are likely to succeed in their arguments, there would be irreparable harm if the thing they seek to stop isn’t stopped immediately, there isn’t a public interest against granting an injunction, and the party seeking the injunction will be more harmed by what they seek to stop than the party you’re bringing the injunction against will be harmed by the injunction itself.  In the case brought by Washington, the court ruled that they were likely to succeed in their arguments that the immigration ban unconstitutionally singled out targets based on religion or national origin–in other words the order discriminated likely discriminated against protected classes.

Will the New Order Stand Up in Court?

The White House certainly believes its changes, although extremely minor in practice, are enough to allow the order to pass muster.  In fact, the Department of Justice has already filed briefs saying that the revisions have rendered all the legal cases regarding the first order moot.  In other words, the injunction has no further effect and the new order must be challenged or not on its own merits.

However, as of March 9th, Washington state lawyers have taken the stance that the changes are so minor as to amount to essentially putting lipstick on a pig.  They argue that the prejudicial purpose behind the order remains and its most offensive portions are essentially untouched.  For this reason, they’ve asked the federal judge who placed the preliminary injunction on the original order to expand his order to cover the “Muslim Ban 2.0.”  A similar attempt to challenge the ban has been brought by Minnesota and Hawaii.  The Attorney Generals for Massachusetts, New York, and Oregon have all made it known that they intend to join in on the challenges brought by Hawaii, Minnesota and Washington.

So will the new and improved “Muslim Ban” stand up?  We’ll have to see how the courts rule.  However, the order has changed very little in actual effect.  It still targets specific nationalities in almost exactly the same manner and it still exclusively targets Muslim majority countries.  The same reasons it was likely unconstitutional before are all still there.  Even if the order itself has removed some of the language making obvious attempts to target Muslims and provided an alternate explanation, Trump’s own statements on immigration and the previous order still can be used as evidence of the discriminatory purpose to the new order.

Nothing in law is ever truly certain, but the definition of insanity is doing the same thing and expecting different results.  The new ban is very similar to the previous order, it seems unlikely that it will pass constitutional muster with such minimal changes.

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Media Ban: Can the White House Block Media Coverage?

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.

Media BanClosed 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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