First Amendment Experts Call For Lawsuit Based On The Exclusion Of Leading Media Outlets From Press Gaggle

sean_spicerI 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.

81 thoughts on “First Amendment Experts Call For Lawsuit Based On The Exclusion Of Leading Media Outlets From Press Gaggle”

  1. The media is a gaggle of geese all flying around hurriedly and self impoIrtantly from frenzied feeding ground to another but accomplishing ….nothing.

    If they indeed have a job they aren’t doing it.

    Here’s what I’v discovered in passing.

    About ten years or a bit less prior to 9/11 the Clinton campaign mentioned something about a gathering and collating of information concerning crime. statistics.

    A bill on this subject actually passed congress (Democrat controlled) and was signed by Bubba.

    Unfunded it died. having served its purposes.

    It raised it’s head periodically usually in conjunction with a bill designed to gain second administration votes. 100,000 cops may come to mind. This bill repalced the laid off border patrol – in part – and provided first year funding only to a very small number of police departments. I don’t know of any that continued the emplyment when their own dime was required. Part of that was to pay for fulfilling the federal law mandate of police statistics to the FBI. Most just ignored the requirement – none ignored federal funding and that which did exist was not cut off. VOTES were at stake!

    Again nothing happen except a small project was started by the CATO institute based on police mis-conduct. the result was a startling finding. Most almost all police misdeeds across the totality of laws were the result of 1 to 1.5 percent of police. 700,000 the total police population 7,000 to 10,000 were doing the bad deeds Second result was nation wide in the general population the same one to one and a half percent figure emerged. Nothing else was done by any level in compliance with a the federal law of the early 1990’s

    9/11 happened, CATO kept gathering and investigating facts everyone else went crazy and panicked. The number one agency of the government that knew about terrorism was shunted aside. New funding, new laws, civil rights suspended new agencies but nothing much really happened. Unless you counted TSA.

    New federal police agencies since the 1980’s raised that total from three to over fourty. All wearing black heavily armored and full of fierce but little in the way of results. The number one agency was deployed out of the country.

    Some efforts were starting to stir onthis informationi gathering around the time of the first Obama
    Administration. A decade and a half after it was required. A new law was passed but again for a long time largely ignored. Reason? No funding for local systems to be interfaced, checked for accuracy and then what to do with all of it.????

    There was a start up effort to use the nation’s number one military unit when it came to insurgencies and counter insurgencies …..that effort coalesced to the degree possible or did so under the table….Thus US Army Special Forces as part of Special Operations Forces including some new SAS type unts became the stuff of new movies and actuallywere allowed to make some headway. SEALS, USMC Force Recon/Snipers, Delta, and who knows what else emerged no longer the bad boys of the military but as the new sexy thing to be. for the REMF ticket punchers. There standard schools such as SERE training commanded some attention….The old system of dedicated to geograpical areas unit emerged again but those wno spoke the languages and knew the areas had long since retired or quit in disgust.

    And successes began happening but hey that couldn’t be allowed could it?

    One good thing Obama stayed out of the way and apparently bin Ladin was caught in Pakistan andexecuted. Reportedly.

    Victory wad achieved but the troops didn’t come home.

    New problem had had the time to develop.

    The military however head never bowed no matter how bloody stood with the Constitution and the retirees and the former members and the deplorables as the greatest danger the administratioin claimed to face and slowly began to forge an alliance with what became known as the deplorables.

    It had three missions.

    1. Smash the Clinton campaign, Smash the left wing of politics including the Dino’s and the Rinos.

    2. Preserve and defend the Constitution and reinstate the Constitutional Republic

    3. Being good realists the tool chosen was and is the sitting President and a disparate and unknown number of possible supporters. .

    The result were truly amazing

    Many didn’t know their friends across the street or in the next battalion were in on it . Ideas were passed, added to, implemented and few thought it would have more than limited success. Still three ideas surfaced

    Stop Enabling, Take Control, Make Change.

    and another Ballots are better than bullets

    and a third…. I’ts not a revolution that was the secular progressives. This was a legal, and required action of counter revolution.

    And it worked.

    So the slugs can now have the floor but then the advantage is we have a plan you do not. We have troops you do not and we know who you are.

    You only wish President Trump was your worst nightmare. or even Hillary or Pelosi….

    Not even close.

    1. What ever happend to that coaliton of information? It worked but not San Francisco has opted out. No sweat.

      Activate the 82nd for possible duty, activate and federalize the California National Guard for border partrol duty, alert Air Traffic Control for possible shut down and exclusion of the Bay area airports. and shift all sea traffic to other ports. Aren’t demonstrations a wonderful thing!

  2. It is not the business of either the courts or the lawfare artists at the criminals lobby known as the ACLU who among the press the President talks to. The President should tell them to get stuffed.

      1. The Homeland security “Measures” brought under W (how much money did Chertoff get from Rapiscan which has been banned in other civilized countries??), continued by Obama and now by Trump are all designed to turn citizens into sheep. The rich ‘n famous who fly on their own private jets are not subjected to ANY security measures and most certainly not bans.

  3. Maybe he should let ’em in, but control the questions like Obama’s press sec Robert Gibbs =)

    “[Helen] Thomas’ best moment in recent years may have come in July 2009, when she slammed Obama’s then-press secretary Robert Gibbs for the administration’s close management of the press and for planting prepackaged questions for the president.”

    “The point is the control from here. We have never had that in the White House. And we have had some control but not this control. I mean I’m amazed, I’m amazed at you people who call for openness and transparency and have controlled…” Thomas said.

    “Nixon didn’t try to do that,” Thomas said after her confrontation with Gibbs. “They couldn’t control (the media). They didn’t try. What the hell do they think we are, puppets? They’re supposed to stay out of our business. They are our public servants. We pay them.”

    Read more:

          1. Thus far on this blog I have not seen a reason to do so on the topics posted.

            Rather than labelling me as a Trumpster why not examine the failures of the Obama administration and why indies did not go for HRC aka Obama2.0 on steroids?

  4. Where were these people when Obama excluded conservative media and closeted himself with Liberal media for special briefings?

    I agree that what Trump did was wrong. They expanded the pool by inviting favorites. If you are going to invite more kids to the party, you invite the whole classroom. It was wrong. Obama was also wrong when he did similar moves with the Liberal media. If they are going to have a little meeting in the Press Secretary’s office, then it is classy and fair to invite a mix of journalists in addition to your favorites. I believe the President, however, is also entitled to give exclusive interviews, as Obama did many times.

    “I would be surprised if any federal court would rule that even informal meetings must include invitations to all media.” Well, that depends on how politicized that federal judge is. Take for example, Supreme Court Justice Ginsberg. Would you trust her to set her own personal political beliefs aside?

    1. If you are going to invite more kids to the party, you invite the whole classroom. It was wrong. O

      Earth to Karen. Elementary school was 30 years ago for your kids and 60 years ago for you. Get over it.

    2. Kindly inform of the circumstances where President Barack Hussein Obama excluded journalists from a press conference. I am not familiar with any incident of this type.

      1. “What none of the journalists told readers, because they had promised the White House that they would not, was that their attempts to portray the president’s intentions had followed a lengthy and secret meeting with Mr. Obama the day he delivered the speech.”


        “Columnists who have attended one of the more than a dozen private meetings with the president in the last seven years are directed not to quote him, disclose what was discussed or use the information they gleaned in further reporting. The attendees are not allowed to even acknowledge that the discussion took place.”

        Bad Trump, bad! HypObama, good!

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