New York Times

Barring Reporters From Briefings: Does It Cross a Line?

March 1, 2017

by Adam Liptak

WASHINGTON — A ruling issued on Monday by a federal judge in Manhattan, in a case brought by a freelance journalist without a lawyer, may interest the White House. The judge said that the New York Police Department may have violated the First Amendment by revoking the press credentials of the journalist, Jason B. Nicholas.

The ruling was preliminary, and the Police Department said it had legitimate reasons for its actions. But Judge J. Paul Oetken’s decision was timely, following as it did the exclusion of several news organizations from a Friday briefing at the White House.

“It has been held impermissible,” Judge Oetken wrote, “to exclude a single television news network from live coverage of mayoral candidates’ headquarters and to withhold White House press passes in a content-based or arbitrary fashion.”

Last Friday’s developments at the White House crossed that legal line, said Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University.

“That was unconstitutional,” he said. “If you exclude reporters from briefings that they otherwise have a right to attend because you don’t like their reporting, then you have engaged in viewpoint discrimination.” Viewpoint discrimination by the government in a public forum is almost always unconstitutional.

Sean Spicer, the White House press secretary, on Friday barred journalists from The New York Times, BuzzFeed News, CNN, The Los Angeles Times, Politico, the BBC and The Huffington Post from a daily briefing.

Aides to Mr. Spicer admitted only reporters from a group of news organizations that, the White House said, had been previously confirmed. After the session, Mr. Spicer’s deputy said all White House journalists were represented by the small, rotating press pool that covers the president’s daily movements and shares its reporting with the rest of the press corps, and that Mr. Spicer had merely opted to add a few other organizations to that group.

Repeated attempts by The Times to be included in the group of confirmed attendees were unsuccessful. An email to an official in the White House press office inquiring about whether a Times reporter would be allowed in and requesting access was not answered. A Times reporter who went to the White House briefing room to try to gain access was turned away and told he could not be included.

The White House’s rationale for allocating seats at the briefing, if accurate, would probably pose no First Amendment issues. But there are reasons to think the White House singled out news organizations whose work it dislikes.

“We’re going to aggressively push back,” Mr. Spicer said, according to a recording of the session provided by a reporter who was allowed to attend. “We’re just not going to sit back and let, you know, false narratives, false stories, inaccurate facts get out there.”

Public officials are not required to give reporters perfectly equal access, of course, and exclusive interviews and selective leaks are commonplace and lawful. But First Amendment experts said the allocation of government resources like press passes and access to public forums like news conferences must be based on neutral criteria rather than discrimination based on what the journalists had written.

Lots of interactions between the government and the news media do not implicate those kinds of First Amendment concerns. In 2006, for instance, a federal appeals court ruled that Gov. Robert L. Ehrlich Jr. of Maryland did not violate the First Amendment rights of two Baltimore Sun reporters by prohibiting state employees from talking to them because he was unhappy with their reporting.

“It is common knowledge,” Judge Paul V. Niemeyer wrote for a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., “that reporting is highly competitive, and reporters cultivate access — sometimes exclusive access — to sources, including government officials. Public officials routinely select among reporters when granting interviews or providing access to nonpublic information.”

But press credentials and seats at government news conferences are a different matter, according to a 1977 decision from the United States Court of Appeals for the District of Columbia Circuit.

“White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news gathering under the First Amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons,” Judge Carl E. McGowan wrote for a unanimous three-judge panel. “Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the First Amendment in assuring that restrictions on news gathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information.”

Scott Gant, a lawyer with Boies Schiller & Flexner and the author of “We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age,” said Friday’s developments were troubling.

“The exclusion of certain news organizations from press briefings, if motivated by disagreement or displeasure with their coverage of the administration, may well have crossed an important constitutional line — potentially constituting violations of the First Amendment,” he said.

First Amendment experts said the decision to bar reporters from Friday’s briefing was of a piece with the Trump administration’s hostility to much of the news media.

“Unhappiness with and criticism of the press by American presidents has been the norm, not the exception,” said Floyd Abrams, a leading First Amendment lawyer. “But daily denigration of the press as the enemy of the American people and statements that the use of confidential sources by journalists ‘shouldn’t be allowed’ is both novel and dangerous.”

But Michael W. McConnell, a law professor at Stanford, said news organizations can be too thin-skinned and too quick to invoke the First Amendment.

“Criticism of the press is not an attack on freedom of the press, any more than criticism of the president is an attack on the presidency,” he said. “In my opinion, the press should respond to President Trump’s criticism not by taking umbrage at the criticism but by doing the best, most professional job it can do, including covering Trump fairly and accurately.”

Ilya Somin, a law professor at George Mason University, said Mr. Trump may have violated important norms even if he crossed no legal line.

“A president has every right to criticize the media, and almost all presidents do on occasion,” he said. “It is also legitimate to point out that there is liberal bias in many outlets. But Trump’s comments go well beyond that and often verge on trying to delegitimize the media as an institution. That’s a bad thing.”

Mr. Spicer’s actions on Friday may turn out to be a blip. Or they may be the first step toward the sort of constitutionally forbidden discrimination that worries many First Amendment experts.

Mr. Nicholas, the journalist who sued the police department, said he saw a connection between his case and what happened at the White House.

“When President Trump excluded certain media outlets from an otherwise open press event,” he said, “then the White House engaged in precisely the kind of viewpoint-based discrimination that is unconstitutional under the court’s decision in my case.”

“When government authorities get to pick and choose who among the press gets to cover an event,” Mr. Nicholas said, “everyone loses, the public first and foremost.”