I recently discussed an ethics complaint by law professors against presidential aide Kellyanne Conway that I viewed as facially political in character and lacking a substantive foundation. (Of course, this was before the “Couchgate” scandal) My reaction to a new proposed first amendment lawsuit by news media is little better. Democratic U.S. Rep. Carolyn Maloney and first amendment advocated joined in condemning the Trump Administration’s exclusion of some new organizations from a White House press briefing. I share their view that the exclusion was wrong and, with the recent attacks on the media by President Trump, contradict our core values as a nation that values the freedom of the press. However, I do not see a credible constitutional claim brought under the threatened lawsuit.
Civil liberties lawyer Norman Siegel, the former leader of the New York Civil Liberties Union, called for the lawsuit over what he called censorship when the Trump Administration barred news organizations like CNN, New York Times, and Politico from a “gaggle” or informal press briefing. It was widely viewed as retaliation against news organizations that have been reporting on mishaps and leaks from the Administration. White House spokesperson is quoted as saying “we’re going to aggressively push back . . . We’re just not going to sit back and let, you know, false narratives, false stories, inaccurate facts get out there.”
The experts cited Sherrill v. Knight, a D.C. Circuit opinion from 1977 where a Nation reporter was denied a press pass. The court found a violation of the first amendment after the Secret Service failed to give proper notice or foundation for the decision. However, the court did not articulate a standard.
We agree with the District Court that both first and fifth amendment concerns are heavily implicated in this case. We conclude, however, that neither of these concerns requires the articulation of detailed criteria upon which the granting or denial of White House press passes is to be based. We further conclude that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon first amendment guarantees. Such impairment of this interest cannot be permitted to occur in the absence of adequate procedural due process.
This is not a denial of a press pass but rather the denial to a single gaggle. More importantly, the gaggle had a pool reporter so these media outlets were not prevented from knowing what was said. The gaggle was held in Spicer’s office. He is not the first to hand pick reporters for informal meetings. I would be surprised if any federal court would rule that even informal meetings must include invitations to all media. Indeed, it is hard to see who such a rule could be accommodated. Given the pool reporter, I would expect most federal courts to reject the claim. Moreover, it could create some truly dreadful law for journalists.