The Trump Administration is rushing to prepare for a fight that few knew was coming after President Donald Trump banned Politico, CNN, and MS NOW from the White House for spreading “fake news.” I understand the President had been planning this step for over a year, but he announced it with little notice to his staff. What will follow could be one of the most consequential fights over press rights in decades… and the odds are against the President.
I have previously expressed my disappointment with the ban. While I have been one of the most vocal critics of biased coverage on these outlets, I view this as an ill-considered, damaging move. Putting aside the constitutional concerns, it is a policy that undermines core values and traditions related to the free press. As I discussed in my Hill column this weekend, presidents since George Washington have denounced media bias, but they have refrained from this type of action.
During the Biden Administration, the President would regularly attack Fox News and reporters such as Peter Doocy. However, they were not banned over their negative coverage. The United States laid the foundation for free speech and the free press in the First Amendment. It remains the great champion of press freedom around the world. It is difficult to maintain that position when media outlets are barred because of the content of their coverage.
On the legal side, the ban runs against the grain of existing precedent. In 1977, the United States Court of Appeals for the District of Columbia considered a ban on Robert Sherrill, a reporter for The Nation. In Sherrill v. Knight, the court ruled that the First Amendment limited the right of the White House to arbitrarily deny a press pass to a journalist. Since that time, viewpoint discrimination has long been viewed as not a reasonable basis for exclusion.
The D.C. Circuit held “White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the First Amendment guarantee of freedom of the press . . . requires that this access not be denied arbitrarily or for less than compelling reasons.”
The White House appears ready to seek a possible reversal of Sherrill either before the D.C. Circuit or the Supreme Court. It is a risk since a countervailing decision could cement and even amplify the Sherrill standard in a Supreme Court opinion.
The White House is not without good-faith arguments to make in the coming litigation. The White House is not a public forum, and it can deny access for reasons such as security.
Last year, the D.C. Circuit ruled for the White House in Ateba v. Leavitt. Journalist Simon Ateba challenged White House credentialing requirements after he was denied a permanent “hard pass.” The appeals court found that, as a nonpublic forum, such a denial was permissible.
However, the Court in Ateba rejected the notion of “unbridled discretion” in such denials. Citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985), the Court still reaffirmed that “[a]s a nonpublic forum, access to the White House Press Area “can be restricted as long as the restrictions are” viewpoint neutral and reasonable.”
Likewise, after the Trump White House denied access to CNN correspondent Jim Acosta, a federal judge (and Trump appointee) ordered the White House to restore the press pass due to the lack of due process and notice.
The D.C. Circuit also considered such denials in the case involving the Associated Press when the Administration barred access to Air Force One and the Oval Office after AP refused to change references to the Gulf of Mexico to Gulf of America.
In Associated Press v. Budowich, the D.C. Circuit noted:
In Sherrill, we held that the “White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the [F]irst [A]mendment guarantee of freedom of the press” attached, requiring that “access not be denied arbitrarily or for less than compelling reasons.” 569 F.2d at 129 (cleaned up).
AP initially prevailed before District Judge Trevor McFadden, also a Trump appointee, who ruled that the ban probably violated the First Amendment. He wrote that “under the First Amendment, if the Government opens its doors to some journalists – be it to the Oval Office, the East Room, or elsewhere – it cannot then shut those doors to other journalists because of their viewpoints.”
A divided panel of the D.C. Circuit later lifted the injunction by stressing that Air Force One and the Oval Office are very specific locations subject to greater discretion and controls. However, the court stressed that Sherrill is still good law and bars arbitrary denials. The litigation is still ongoing.
In this case, the White House gave no procedural protections or any reason other than the President’s view that these outlets were publishing “fake news.” That creates a clean and straightforward record. The White House will have to argue that it can deny access without notice, procedural protections, and based entirely on the content of coverage. In other words, it will have to argue that it can engage in viewpoint discrimination.
Once again, opposing this policy is not to defend the underlying coverage. Many of us have raised the same objections to the coverage. However, this would create a dangerous and unfettered power. Future presidents could use it to bar conservative media and outlets that expose government abuse or waste. Whatever the outcome of this litigation, it is not a policy that advances our core values and traditions.
Jonathan Turley is a law professor who teaches a class on the Constitution and the Supreme Court and is the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
remember when Trump was Impeaced for asking about Biden’s Corruption?
47 — or his close advisors — would do well to study Sun Tzu’s “The Art of War” and its counsel to pick your battles, favoring the ones you are likely to win rather than the ones you are likely to lose. Hubris is not a winning strategy: it is a toxin.
The title of the article is “Can the President Ban Disfavored Media?” That title is an interesting choice of words … a choice of words that slants the conversation. What if the title of the article were “Can President Trump Ban Insurrectionists?” (i.e., revolutionaries who promoted the scam that Trump colluded with Russia, the scam that Trump urinated on Russian prostitutes, the scam that 51 intelligence community experts say Hunter Biden’s laptop looks like Russian disinformation, and the scam that Joe Biden is fine and dandy)?
Good news and bad news on this issue:
Much to the chagrin of biased anchors like Jonathan Karl and Kristen Welker on the Sunday morning political shows today, several of their guests expressly agreed with Trump that the journalists were biased.
But they stressed the importance of responding, NOT with bans, but with the “more speech” as also favored by Professor Turley.
My personal opinion agrees with all this, but my approach would be different.
Trump needs to undergo walk-through sessions of presser coverage laden with biased and critical input from journalists–in the same way that a debate team goes through trial debates by anticipating and being prepared to counter.
Instead of shutting off or not calling on certain journalists, Trump needs to have a witty, sharp, and CheckMate response, loaded and ready to go:
Example:
Question: “President, what do you say about the $4.59 per gallon gasoline prices hurting Americans?”
Response: “I’m glad you asked that question. I had my staff go back and look up the absence of press outcry, or even coverage during the Biden administration, when gasoline during his term stayed above $4 for several months and briefly rose above $5.00–and we were not even directly engaged in any ‘war’ at that time. And average income was $8-9K LESS back then, so the pain was even worse….And let me throw this in. Media makes headlines about me destroying public lands with gas permits, always trying to make me look bad. May I remind you that even your own Washington Post wrote that Biden was approving more permits than I did. Where was your outrage back then? We didn’t see your name asking any of these questions.”
https://www.washingtonpost.com/politics/2021/12/06/biden-is-approving-more-oil-gas-drilling-permits-public-lands-than-trump-analysis-finds/
I meant
“walk-through TRAINING and prepping” sorry
Lin,
I was tracking you. Some of us have the common sense to read into something someone wrote and still get the gist of what they were saying or meaning.
Oh, the other day you made a comment about Trump, and the SPR. While in the truck running an errand yesterday, I tuned into NPR. They were talking about the price of gas, groceries etc. Never once mentioned about the cost of gas and groceries during the Biden admin, and there was no war.
“but my approach would be different.”
As a lawyer, advice to Trump about effective conduct (about which I tend to agree) aside, do you really think that if this issue is heard by the current SCOTUS, that the precedents that clearly contravene (if not contradict) the plain wording of the scope of 1A in terms of its scope of application will be upheld? To me, since 1A is one of the most crucial aspects of the document, if it can be interpreted at will in that fashion, the value of every part of the document is called into serious question.
how many questions did conservate get to ask the clown press secerataries Biden had?
I watched Peter Doocy ask a question in every sing one. Many of his questions were clownish and premised upon a lie, but he got to ask them.
Republicans have to STOP being weak in the FACE of FASCIST Democrats
let me know when a republican can be a professor at an Ivy League and we can restore the FASCIST Media
Fight Fire with Fire
Democrats are Set on destroying western society…this isn’t playtime or time for FAIRNESS! No more turning the other cheek!
The professor is exactly right on this one. Trump’s thin skin does not allow him to ban news outlets based on his belief that they are wrong.
I don’t think this is the best idea. CNN and others have lost all credibility. Trump posted a list of lies and hoaxes they have spread. Its three or four columns and ten or so in each row. If they are allowed in the White House he can deny them. However, the lies have hurt people and for many its cost money.
It’s war. The communist have infiltrated our judiciary and our press. This is going to get ugly, it already is ugly. How can we take our country back?
Turley is correct. Trump probably has no legal right to prevent these media from reporting whatever lies they wish. It’s historic, for goodness sake. CNN and MSNOW have suffered by their own hand by reduced viewership. It’s not clear what audience Politico has at all.
Nonetheless, this war has confounded and frustrated Trump no end. In it he achieved everything to bring a surrender, but Iran’s intransigence and willingness to let its people suffer seem beyond his comprehension. Thus, he is doing things he might not have done otherwise. This is just an example, and ill advised. I hope there are no more.
I’m guessing Trump knows he will lose, but will make them scramble, pursue the legal action, then at the last minute he’ll drop the ban. It’s a distraction, like so many of his moves lately (renaming lakes, etc.).
Afterwards, he and his staff can tell each reporter to identify themselves and their employer prior to each question, then give a political answer to their “question” or a nonsensical answer that ridicules them, makes news and has the whole country laughing at the reporter.
Nobody with a brain thinks CNN, MSDNC or Politico is anything but Democrat Party propaganda. They haven’t been “journalism” in decades. Neither has ABC, CBS, NBC, PBS, WaPo, and all of those other thoroughly-outed biased media sources.
Trump would be better served ridiculing them to their faces, making the whole country laugh at them.
Who pays for the White House operation? We taxpayers do. The President has to obey the 1st Amendment — it’s not just there to protect his right to speak freely — it’s there for everyone to speak freely without government interference.
Once again, Trump stands out as the solipsistic elitist — “rules for thee but not for me”. He deserves to lose this.
If he were a clear thinker with above-average, articulate speaking skills and a commitment to civility, he could counter the media slant with meritocratic argument. If he had comedic skills, he could cleverly mock the neurotic tendencies of various media operations. He’s not any of these things. His sophomoric verbal skills are limited to “fake news”, “hoax”, and “leftist loonies”. He is intellectually a lazy, undeveloped leader.
With 50% of Americans having superior mental and social skills to our elected leader, it’s no wonder he finds himself so underwhelming, embittered and defensive. A dose of modesty would do wonders for him, but that’s impossible for a narcissist egomaniac.
I do not agree with Trump banning them, but I can understand why he would. They really are fake news. What would be better is to give those banned news (cough, cough) outlets credentials, spots to independent news whom are much more reliable and credible.
As I recall, FDR held briefings for specific reporters with whom he independently chose to meet in his office. So, might Trump do the same? Let anyone and everyone sit in the press room but have no administration people show up or show up once in a while. Trump and each of his cabinet could then select time and place to meet with whom they would share their views and announcements. The “press” still would have unfettered access to the press room eventhough press briefings seldom occured there. They would then need to get their “inside information” from the published reports of such meetings or befriend one of the anointed few. Can a court legally compell the administration to give press reports at all?
The WH doesn’t have to give press conferences. They could even tell the press to submit their questions in writing, and they can choose what they’ll answer.
The Supreme Court ruled 50-years-ago that news organizations are not entitled to access to places or information the government controls – shutting down any clam by CNN that President Trump’s decision to revoke the press-passes for three organizations violates its constitutional rights.
#court
🔻In Houchins v. KQED (1978), the justices held that the First Amendment is neither a Freedom of Information Act nor an Official Secrets Act.
The press’s core protection is the right to communicate information once it has been obtained, not a right to collect it from the government.
🔻Pell v. Procunier (1974) and related cases established that the press has no constitutional right to information or locations not available to the public generally.
🔻Zemel v. Rusk (1965) stated that the right to speak and publish does not carry with it an unrestrained right to gather information, and that entry into the White House is not a First Amendment right.
Those rulings have never been overruled
Press has the right to remain quiet. Nothing more.
Let them in, but don’t take any questions from them. Thought it’s funny Obama’s shunning of FOX is ignored.
hold the conference in a remote stadium packed with lunatics
Do you mean the one time the Treasury Department tried to exclude Fox from a single press‑pool interview? Other networks (including CNN) protested and within a few hours Fox was reinstated. Do you have any other specific example?
Genuine question for Mr. Turley: you used the term viewpoint; but if the administration could prove that these organizations produce “fake news”, i.e. genuinely inaccurate, or counter factual reporting, do you believe the same outcome would be likely?
The proper way to deal with public frauds issued by media sources is civil lawsuit. The President could sue.
He’s just unprincipled.
OK, then citizens should also have the right to sue the President for pushing out a whopper. But the Nixon v. Fitzgerald decision seemingly gives the President unmatched rights to deceive the public without threat of swift legal challenge.
LOL
Democrats judges are RELEASING criminals to Murder over and over!
Democrats judges should be jailed when anyone they release commits another crime!
question….do you defend Illegal invaders?
That is TREASON!
I want Every democrat helping illegal invaders JAILED for TREASON!
What about Trump’s right to FREE Speech? As they jailed and prosecuted him for PURE LIES!
Why not jail every Democrat, or Independents who vote for Democrats. Aren’t they all part of a treasonous conspiracy?
You probably meant to say Trump was jailed and prosecuted based on pure lies, not for telling them. Freudian slip, perhaps?
One curious thing about his arrest. In New York, people arrested for felonies are supposed to have their DNA taken and cross checked against a database including rape kits. Trump’s DNA was never taken; heaven forbid there be a match somewhere we don’t know about.
I would stand against the incarceration of my political opponents. The last thing I want is to be mistaken for a Democrat.
Can China foment revolution in America using the press as their mouthpiece? What amendment awarded PRC this carte blanch?
Yes! There are limits to the reach of 1st Amendment protected speech. Another one is deliberate intimidation.
Another is duping the public for commercial or political advantage. Another is attempting to influence children against the values and preferences of the child’s parents. In each case, the question is “How should these speech abuses be challenged (legally)? Civil lawsuit is the best in most cases. But foreign meddling in domestic politics, or foreign influencing of youth might better be challenged directly using Executive branch authority.
LOL
From a person who believes a TRANS per can FORCE me to say they are a male when they are female.
I can be FIRED FOR THAT! Democrats are FASCISTS and get MAD Everytime anyone fights BACK!
I had the same question. While speech does not lose 1A protection merely because it is false, there is a separate question as to whether it can be characterised as a viewpoint entitling it to the protection against viewpoint discrimination which is very strong.
All that having been said, this is a tempest in a teapot that the media will magnify because it affects them directly. WH press briefings rarely provide any new information, and the press secretary can decide whom to call on in any event. They are also broadcast publicly through one channel or another, so no information that is conveyed will be concealed.
If 95% – 97% of the information they provide is twisted into a predictable anti-Trump tirade can what they provide really be considered news and information?
It’s as if we allowed Tokyo Rose and Lord Haw-Haw to broadcast from the White House simply because we want to honor the spirit of the 1st amendment. Trump will lose but the networks will have to spend time and money to win while reminding people that they work for one party exclusively. Like Hollywood they are increasingly just performing for each other at this point. Audience numbers are terrible.
Trump will lose because the judges are in China’s back pocket.
Did Trump shutter the doors to these news institutions?
No, they are still free as they want to collect and print news (or obfuscations) at their will.
He has not censored them at all and any questions that they may have can be gotten from in-person questions of any government official, and FOIA request, any investigative reporting it may have – just what is the gripe here?
Did these cabals of misrepresentation feel the sting of well-deserved rebuke and their privilege to a press room removed so that other journalists may have access.
It isn’t as if Trump has established his own version of Pravda. there are not enough seats in the press room for all of the journalists in the country so why do these 3 feel privileged to always have such a seat?
Bad move by the Administration – will prove to be a loser in the Courts and in “Peoria” (will it play in Peoria? https://everything.explained.today/Will_it_play_in_Peoria%3f/)
why/ he hasn’t shuttered them or censored them, he just banned them from one spot of news gathering. They are still free to print anything they want, to submit FOIA requests, to question any government official – how are they harmed? except in the ego?
Reasonable minds can differ. If he couldn’t kick out a single reporter (Acosta) then why does anyone think the Courts will uphold this?
I have a feeling that the I’s will disapprove and only hurt R chances in the mid-term – as the D’s play up this as an example of him “destroying democracy” (even tho their plans are worse)
you mean like Democrats do…firing ALL that disagree with them?
What Ivy League has a conservative professor?
Democrats FIRE people across business, government, education… FOR FREE Speech!
So give me a BREAK!
I want Democrats cities, states, colleges and non-profits DEFUNDED and Public Unions their political army OUTLAWED!