My latest column for the South Carolina Press Association:
It
already seems like a long time ago, but it’s only been a month since
the Trump administration’s long-simmering clash with CNN reached a new
level, with the cancelation of reporter Jim Acosta’s “hard pass” that gave him access to the White House. The pass was restored temporarily on the orders of a federal judge when CNN sued over the action, and then permanently when the White House press office deescalated the confrontation.
But
it’s important to not let this incident go without examining the legal
issues involved, since there’s the possibility that it may happen again,
either at the White House or in county offices and city halls: perhaps
even in the ones you cover, with reporters—perhaps you—being stopped
from doing your job.
CNN
argued that the removal of Acosta’s regular access to the White House
violated both the First Amendment rights to freedom of speech and the
press and the Fifth Amendment’s right of due process, since the pass was
rescinded without warning and without an opportunity for him to argue
against the action. But the judge based his ruling granting a
preliminary injunction restoring Acosta’s pass only on the Fifth
Amendment grounds, holding that a prior case established the principle
that “the government must provide Mr. Acosta due process if it is to
revoke his hard pass.”
“I
want to make very clear a couple of things,” the judge said in his
ruling from the bench. “I have not determined that the First Amendment
was violated here. …”
That prior case was Sherill v. Knight,
a 1977 appeal of the Secret Service’s denial of a White House press
pass to The Nation correspondent Robert Sherrill. The appeals court held
that the Secret Service must establish formal criteria for grants or
denials of White House press passes, give reasons for its decisions, and
also establish an appeals process. The appeals court rooted its
decision in both the First and Fifth amendments.
The
Acosta and Sherrill cases are not the only ones in which public
officials have attempted to limit reporters’ access to press rooms and
press conferences.
In
2007, Toledo, Ohio mayor Carleton S. Finkbeiner refused to notify a
local radio station about scheduled press conferences, while informing
other news outlets. He also refused to allow a reporter from the station
to attend the press conferences when he found out about them anyway.
The mayor actually disbanded a press conference when the reporter was
able to gain access, turning it into a “briefing,” which only selected
reporters were permitted to attend. A federal judge issued a temporary
order requiring Finkbeiner to notify the reporter of press conferences,
and allow him to attend. He then issued a permanent order, and then awarded the reporter attorney’s fees. The mayor’s actions, the court held, likely violated the First Amendment.
A federal court in Hawaii held in 1974
that there were similar First Amendment concerns when the mayor of
Honolulu excluded a specific newspaper reporter from news conferences.
In
a 1988 case, a federal judge issued a preliminary injunction barring
Jefferson Parish Sheriff Harry Lee from not informing reporters from the
New Orleans Times-Picayune about press conferences, and limiting them
to submitting written questions and receiving only written responses. In
issuing the injunction, the court held that “[t]he serious deprivation
of First and Fourteenth Amendment rights suffered by plaintiffs as a
result of Sheriff Lee's discriminatory policy constitutes irreparable
injury.” The Texas Court of Appeals came to a similar conclusion in 1979 when a district attorney required only a particular media outlet to make an appointment for any interview.
But
while courts have held that public officials excluding a particular
reporter or news outlet from press conferences and other
information-gathering processes that are generally open to other media
raises First Amendment concerns, they have also held that public
officials are free to refuse to answer questions from a particular
person or outlet, as long as that person or outlet is not excluded from
attending press events.
In a 2006 decision,
a federal appeals court held that the governor of Maryland’s refusal to
answer questions from reporters for the Baltimore Sun was not a First
Amendment violation. Federal judges in Ohio reached similar conclusions
in 2005 and 2004 when the mayors of Youngstown and Cleveland separately issued orders barring city employees from speaking to particular news outlets.
Thus
when officials have done both—barring certain reporters or outlets and
also refusing to answer their questions or provide them with
information—courts have allowed legal action on the former, but not the
latter. This was the conclusion of a federal appeals court in 1996 over such actions by public officials of Michiana, Mich., and a New Mexico trial court in a 2017 decision challenging similar practices by the state’s governor’s office.
The New Mexico decision, from last year, gives a good overview of the current state of the law:
To
summarize: there is a limited right of access by the media to
government information. Such right of access includes a right to receive
information that is generally made available to the public or to other
media outlets. The government cannot deny a particular media publisher
access to routine information, such as press releases, made available to
the media because of the particular publisher’s viewpoint or
non-establishment characteristics. Nor can the government deprive a
particular media outlet access to facilities or localities where other
press representatives routinely gather news. However, it is also clear
that a particular media outlet has no right to interviews or comments,
not generally available to the public. Nor is it unconstitutional to
deny a particular publisher preferential, non-routine information even
if the reason for the denial is dissatisfaction with the publisher’s
coverage.
While
the storm over Jim Acosta’s access to the White House has passed, the
many instances in the past when public officials have taken similar
steps against specific reporters or media outlets indicate that this
issue will likely arise again, either in the White House Press Room or
some other government briefing room. And when that does happen, the
media—both those subjected to the bans, and those that are not—must be
prepared to act.
It
is particularly important for reporters and media not affected by such
bans to unite and support their brethren who become the target of such
practices. This is because while they may not be subjected to this
treatment at first, they may become the next target.
