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.”
TL/DR
There are three flaws with this position.
1) The 1st Amendment says that “Congress shall make to law . . . abridging freedom of the press . . .”
Well, Congress has made no such law, so this really isn’t a 1st Amendment issue.
2) CNN, MSNOW, etc. can simply do what other media organizations who don’t have individual WH passes, and that’s to use the designated pool reporter for the content of their stories. Then they can just do what they always do and go to the nearest Starbucks and make up their lies.
3) Related to #2, there are hundreds of legacy media organizations and thousands of independent journalists of various stripes and qualities. They don’t have WH access, no can all of them be given access. Yet which of those cry “Freedom of the press!”?
Exactly, it would be better if the media banned Trump. .. and gave us all a break.
The media ‘fake news’ is not going to get anything out of Trump except a tight lip and a frown.
*Turley is half crazy if he thinks we have functioning free press anyway.
‘.. . if I had to choose between a government without newspapers and newspapers without a government, I would not hesitate to choose the latter’ ~ Thomas Jefferson
1). Wholly wrong.
2.) Mostly true
3.) Good.
I do not know what the outcome of any court case will be – but ultimately the WH press corp is a limited venue and thepresident can have rules to determine who can and can not be a member.
While Prof.Turley is correct that the WH can not engage in viewpoint discrimination.
The claim that Trump is engaged in Viewpoint discrimination runs into a number of obstacles.
First being denied a WH press pass does not preclude a site or report from reporting on the WH.
It merely poses an impediment to asking the president questions at WH Press briefings.
These outlets are still free to publish whatever they want and are still free to report on what the President has said.
Legacy media is dying. It is not unreasonable for the WH to reallocate seats from legacy media to new media.
Doing so is not viewpoint discrimination.
This re-allocation is going to occur eventually regardless. The courts can not stop that
Further absolutely nothing requires the president to take any specific reporters questions.
So a court ruling against trump just means seat go essentially unused until reallocations disfavoring legacy media inevitably take place.
Put more simply a court ruling favoring CNN will NOT be a press victory,it will be exclusively a CNN victory,and it will come at the expense of new media.
It is likely- particularly at the lower levels which are openly hostile to Trump that Trump will lose.
But claiming that is a free press issue or a freepress victory is misrepresentation-it would merely be a victory of legacy media over new media
If the courts choose to favor CNN then they are arguably doing exactly what they claim Trump is doing- engaging in view point discrimination. Favoring legacy media over new media.
personally I think that Trump should establish rules for WH press passes based on viewpoint neutral criteria – such as ratings.
That would be more clearly unassailable.The courts have constantly upheld viewpoint neutral rules for actual free speech.
This is a free press issue not a free speech issue. They are similar but not identical.
Regardless the time is eventually coming when the legacy media is going to have its access reduced because it has become less consequential.
does anyone watch CNN anymore ?
Trump’s own words are all the necessary evidence that “viewpoint” is the entire reason for the action; don’t cover his ass for him.
I don’t agree with what Trump did. But I do not think it is viewpoint discrimination.
The CNN employee whose White House pass was revoked said on air that she could, and would, continue to report from the sidewalk. You and everybody else are free to consume her content. Her “viewpoint” remains as accessible to the public.
CNN, MS Now, and Politico can, and will, continue to produce content critical of Trump, his administration, and Republicans. That’s why they exist. Nothing has changed.
Seems like DJT instead of doing this big error move and would have used a 4-D chess move to examine the transcript details to find out and out lies to sue them all for 40T$ called liable. And stay away from the 1A.
I like it cause it pisses off the right people.
This is the wrong question. The correct question is can the President seat the entirety of the media in the briefing room? If the answer is no, then he can choose who has privileged access. No First Amendment issue exists in this scenario at all.
Trump is limiting access to those who make substantial contributions to his campaign fund.
Trump’s explanation is what makes foolish that you argue as you doL: it was viewpoint and viewpointg alone. I knew MAGettes could not think; I did not realize they also could not read.,
MAGettes? So unoriginal!! While DEMS gave us an almost comatose Biden and Dumb Kamala!!
He can invite 650 news people. The ballroom. 😂
‘However, this would create a dangerous and unfettered power.’
You mean like dems attempted to, and nearly succeeded doing, from 2020-24, with ALL information? Really, wake up, Professor. They haven’t got a whit of respect for you; why you continue to cover their tails for them is a real mystery.
I’ve daid it before, but something as dumb as Elon Musk buying Twitter (when Fauci’s freaking daughter was in a senior position) might have saved the world. There is nothing to defend about the companies in question (and yes, they are companies, not some lonely heart paupers trying to tell the truth). I do indeed strongly believe in the fourth estate; these organizations have been proving for years that is no longer what they are and haven’t been for some time.
*said
Saved the world from what? After Musk bought Twitter advertising revenue collapsed because advertisers didn’t want the association. Even Trump didn’t return.
In hindsight I think that encouraging the dangerous information that was spread on Twitter might have been beneficial in eliminating a majority of conservatives eager to inject bleach and take an anti-parasitic that had no effect on a viral disease.
I think a better way would be to require press outlets to wear identifying logos on their person. The president or others can see who the reporter belongs to and either choose to answer or ignore.
That said, there needs to be a legal remedy for deception. Both on the part of the news organizations and on those who are sources. As we saw with the jour-no-list controversy, there is collusion going on. Someone is feeding a narrative and all the outlets are following in lockstep.
I want facts, not spin. I haven’t found an outlet yet that gives us only the facts. Every outlet has an agenda. The agendas should be clearly stated.
I also believe politicians should wear coats like nascar racing jackets. Patches denoting who is sponsoring them. That way, we know who is paying our politicians for their support.
I think a better way would be to require the President, Senators, and Representatives to wear sponsor logos on their jackets.
They aren’t wearing ID badges? Lack of security. Purple for CBS, green Politico, blue Fox etc? Checked in at door and pinned lapel? Seating areas? Quite unsecured…
Maybe it’s 4D chess by Trump to ensure conservatives won’t get banned in the future? Let’s hope so.
Trump would lose at tic-tac-toe, a game famous for the guarantee of a draw by anyone who is paying attention.
Trump is a merkin for billionaires. They are the ones who are desperate to get the press off their tails.
FAKE NEWS
I thought you got shot. How is it down there? Is it the heat or the humidity?
PSYCHO
Your joke is LAME!! May you go down there soon!!! BTW my FIRST name is Kirk
I am beginning to seriously think that the commenters on this blog may be almost entirely battling AI sock puppets all the way down: some Turley associate’s exercise in CompSci vanity. The failure here of *any* other commenter to acknowledge (let alone grapple with) the fact that the First Amendment is textually a burden only on Congress, not on the Executive Branch, was the last straw for me. Anyway, I am done here. I’m off to more or, hopefully, at least minimally productive venues, if any such remain to be found on the thoroughly intellectually barren wasteland that the internet has become. I know I won’t be missed here, but imo that’s on you folks (any of you who are actually biologicals, anyway). I’d advise you not to take any wooden nickels, but since gullibility of one kind or another seems to be a common denominator here, it would be a waste of words. See ya, wouldn’t want to be ya!
The fact that the First Amendment begins, “Congress shall make no law,” does not mean the Executive Branch is constitutionally free to abridge freedom of speech or the press.
“Congress shall make no law” identifies the governmental actor and governmental act expressly prohibited by that particular clause. It does not grant the Executive Branch immunity from the Constitution or authorize executive officers to do what the Constitution forbids government to do.
The President and executive officers are themselves bound by the Constitution. Article II requires the President to “preserve, protect and defend” it, and executive action remains subject to constitutional limitations. The Supreme Court has repeatedly described First Amendment protections in terms of governmental action, not merely congressional legislation.
Otherwise, the First Amendment could be defeated by a simple circumvention: Congress could not enact the prohibited law, but the President could accomplish the same suppression through executive action. A constitutional prohibition cannot sensibly be converted into an authorization to accomplish indirectly what government is forbidden to accomplish directly.
There is, of course, a legitimate textual question about the precise scope of the words “Congress shall make no law.” But that is quite different from claiming that the Executive Branch has no constitutional obligation to respect freedom of speech or the press.
And, finally, accusing everyone who disagrees with you of being an “AI sock puppet” is not an argument. If the constitutional proposition is correct, it should be capable of surviving a substantive response rather than requiring an attack on the people making the response.
funny that your pseudo-intellectual explanation left out the express role of the Fourteenth Amendment, which clearly expands IA prohibitions against more than just “Congress.” IT is the CONSTITUTION’S 14th Amendment that SCOTUS used to justify such expansion, going all the way back to Gitlow (1925.
Gitlow is relevant, but it does not establish what you claim. The Fourteenth Amendment did not rewrite the First Amendment’s “Congress shall make no law” into “government shall not.” Rather, Gitlow held that the Fourteenth Amendment independently protects fundamental First Amendment liberties from impairment by the States.
The distinction is straightforward: the First Amendment says “Congress shall make no law”; the Fourteenth says “No State shall…”; Gitlow applied the latter to protect speech against state governments.
Thus, Gitlow supports incorporation of First Amendment rights against the States. It does not establish that the First Amendment’s textual reference to Congress was changed to include the federal Executive Branch.
GO BACK AND READ WHAT I SAID.
If you can read correctly, I said, (1) The 14th A expanded the prohibitions against more than just Congress.”
I did NOT say that “The Fourteenth Amendment [rewrote] the First Amendment’s ‘Congress shall make no law’ into ‘government shall not.’” You cannot win an argument by creating positions not taken or expressed. Only “George” and
X” try those tactics.
More specifically and to your nebulous point, I acknowledge that Justice Jackson’s words (for non-lawyers, I am NOT referring to Ketanji-Jackson) (of a “zone of twilight” between Congress and Executive branches) (the Youngstown case? or Korematsu? can’t remember) best addresses the deference shown by SCOTUS regarding, e.g. Executive EOs not clearly defined by presidential authority, as when the Executive invokes Commander in Chief authority.
My point is that your “interpretation” has NOT been upheld by SCOTUS but I concede that there is no express language that makes such executive powers exclusive as to the separation of powers or immune from scrutiny.
hope ths makes sense.
Your clarification makes the distinction clearer, and I agree that Gitlow demonstrates that the Constitution’s prohibitions extend beyond Congress: the Fourteenth Amendment independently protects First Amendment liberties against state action. Gitlow expressly said that freedom of speech protected against congressional abridgment by the First Amendment is also protected against impairment by the States under the Fourteenth Amendment.
But that still doesn’t establish your remaining proposition concerning the federal Executive. Gitlow dealt with state action, not presidential or federal executive action. The question therefore remains whether the Constitution elsewhere constrains the Executive when it acts against speech or press. The answer cannot be derived simply by saying that the First Amendment’s textual prohibition is addressed to Congress.
And yes, the Jackson passage you’re remembering is Youngstown Sheet & Tube Co. v. Sawyer, not Korematsu. Jackson’s “zone of twilight” concerns the distribution of executive power vis-à-vis Congress when congressional authorization or prohibition is uncertain; it is not a holding that executive action is immune from constitutional scrutiny.
So I think we actually agree on the important textual point: the First Amendment says “Congress,” and the Fourteenth Amendment extends comparable protection against the States. The unresolved question is the constitutional source and scope of restrictions on federal executive action—not whether Gitlow changed the word “Congress.”
I just read this exchange. You are twisting what he said, and you did not even address his return to you, that “My [his] point is that your ‘interpretation’ has NOT been upheld by SCOTUS. But that’s OK, it was a good exchange.
Remember to take your toys with you on the way out, Number Six.
PSYCHO
Gotta get going here but wanted to mention that, looking at today’s comments, so many mention the media’s “lies.”
Of course, it is easy, as pbinca proposes, to file suit for defamatory or outright lies. But pb misses the forest IMO.
For me, it is the intentionally- SELECTIVE COVERAGE of news, with the clear intent to manipulate and knead public sentiment and public opinion–NOT outright lies–that tries to work its magic.
For hypothetic example, NBC interviews several people on their feelings about Trump.
Person A: I think he’s great. Not afraid to talk back to the media.
Person B: He’s OK. I wish he would come out here where I live and talk to us.
Person C: Love him.
Person D: Trump lied to us about the economy and I want him impeached.
Person E: Trump is a great president. He answers to no one in the media.
Person F: Yeah, he’s good. The media covered up all of Biden’s flaws.
Person G: I wish Trump could get a third term. It takes a while to change things.
Person H: Trump has made everything worse. Can’t wait until he is gone.
Person I: We need Trump in times like this.
That night on NBC News, the anchor reports, “We interviewed several voters on how they feel about Trump.”
(the selective video clips of ^Persons B and H are shown. NBC then moves on to other news.)
See what I mean, in its simplest form?
Selective coverage is biased news, a campaign ad.
absolutely, and using it is as damaging as outright lies, but it slides under the fence.
The President has his Legal Department that duly reviews his orders for conflicts. The banning of these individuals and associated media outlets were scrutinized by Legal before actions were taken.
Given the asymmetric posture against the President in the past decades (since the first run up for office against Hillary Clinton) attended to the Media’s negative bias, this action is well underwritten by the Bias-Media itself.
They reap the self conviction that they wroth. What goes around, came around.
Lawyers don’t decide if something is legal or not; they work to help their client can avoid consequences for whatever action they plan to take or have taken. It is more likely, given every other case Trump is involved in, they figured out a number of delaying strategies to allow the illegal activity to continue and run out the clock on Trump’s term.
DUMB
A constitutional lawyer specializes in interpreting and applying constitutional law, focusing on the rights and freedoms protected by a nation’s constitution. They often handle cases involving issues such as civil rights, government powers, and landmark legal rulings
DUMB ANON!!!!
.
In principle I agree with you, Mr. Turley. But the legacy press has become so gleefully irresponsible that I think shock treatment is in order. I used to work in the media, both in print and in broadcast. I struggle to find 10 reporters nationwide that I would not have fired within the first month. I have a dear friend who was an anchor at CNN and won a national Emmy while there. She finally put her Emmy away instead of displaying it, tired of explaining that CNN actually used to be a real news station. I just don’t think it is sustainable to let what has truly become a Pravda media violate all norms while complaining of everything any conservative say or does.
CNN has been taken over by MAGA. Of course it sucks now.
BIG LIE
Until the fake news is held accountable for their lies, mischaracterizations, and “spin,” they will continue to do so. How about verifiably lying as a basis for denying press access? Like most of President Trump’s short pronouncements, we will, in time, find there may be much more substance behind his curt actions.
What we need are some class action lawsuits against MSM for disseminating verifiably false information. Isn’t this fraud against their viewers? How about damages based on add revenues? Tripled? Punitive? To 100s of thousands of viewers? Until the 4th estate is held liable in a meaningful way for misleading and factually inaccurate disseminations, they will continue to lie to us.
Fox News, a constant critic of conservatives and Trump, paid nearly $1 Billion to settle a lawsuit for their lies, mischaracterizations, and spin.
I think WaPo settled for a tiny fraction of that amount for characterizations of a participant interaction at a protest.
What other verifiably false information have you evidence of?
A constant critic of conservatives and Trump?? NOPE
BAN FOR LIFE!
I AGREE!! BAN PSYCHO MORON ANON FOR LIFE!!
I suppose dead people don’t understand sarcasm.
Dead people?? Maybe your death is coming soon?? ha ha ha
I see dead people!!! HA HA HA
did you forget the settlement $monies paid to Trump for the “lies, mischaracterizations, and spin” from ABC, Paramount, Meta, etc. Oh yeah, and Disney and YouTube? Try agaIn.
Ooooo, no I didn’t know.
It’s left and right in MSN. It’s all junk. The Shirley guy actually works.
Article II, Section 1, Clause 1
The executive Power shall be vested in a President of the United States of America.
__________________________________________________________________________________________
Judges and justices may interpret and apply the Constitution, but they cannot transfer the executive Power vested by Article II to themselves or to another branch.
The First Amendment protects freedom of speech and of the press; it does not confer executive power or a right of physical access to the President’s office or home.
CNN and other news organizations enjoy the freedoms of speech and of the press wherever their physical presence is lawfully permitted. Those freedoms do not authorize trespass or confer a right of access to nonpublic premises.
I’ll be interested in how this banning turns out. It appears to me that Trump is trolling the political left again.
Not a fan of this one. I get it, the press is not a fan of his and puts out plenty of negative news. But, Trump is playing into their hands with this move. I wonder what this is really about. I wonder if he is playing a different game again. If not, he needs to back away from this one. I do not see him winning the argument at the end of the day.
Does The National Enquier have a right to demand access?
What about Mad Magazine?
Are only Autopen judges competent to credential news sources?
This is a can of worms.
What if a news organization the deliberately doxes jurors and judges is denied access?
What if a news organization that deliberately publishes classified information that endangers national security is denied access?
Are the activist judges in DC best to decide these issues?
I don’t know.
That by Young.
What if there is a massive leak in the security agencies that hasn’t been patched? Wouldn’t it apply more pressure to locate and seal the leak than if those in charge of security would continue to just eat cheese sandwiches, drink soda, and have a few chips with their feet on their desks like they were when the leak developed?
When there is a small leak there is a very large leak. It’s like there is never just one cockroach even if one is all that is seen.
I agree; the decision by the White House was arbitrary and capricious. Also, there doesn’t seem to be any “security interests” involved in viewpoint discrimination. If any court approves of this action, it will be a bad day in Washington.
What if a certified journalist for the Völkischer Beobachter is denied access?
Please ignore the trolls. Please
No matter what the man does they’ll continue to distort the message to suit their narrative. Bari Weiss has/is making attempts to change things and she’s being attacked by the mob. I’m not sure if Americans want the truth, look how easily they’re buying in to Free, Free, Free. You still have many believing Russia, Russia, Russia and NJ’s own Spartacus.
Recall when a call from someone at 60 Minutes was cause for open fear among corporate executives?
Now it’s a Bari Weiss joke. Congrats to her, that was the job she was given, to remove opposition to corporate misdeeds.