Trump Press (Feb 2017)

Trump Administration Violates First Amendment

Last week , the Trump Administration banned several mainstream media outlets from entry into a Friday White House press briefing.  The banned news outlets included CNN, the New York Times, the Los Angeles Times, Politico, BuzzFeed, Huffington Post, the BBC and the Guardian, which are all news outlets that Trump has criticized for publishing reports that are critical of his Administration.  Trump has even gone so far as to declare that these media organizations are “the enemy of the American people.”

While these specific news outlets were intentionally excluded, the Trump Administration allowed right-wing media organizations such as Fox News, Brietbart News, and One America News Network to attend the Friday press briefing.  Trump has publicly commended these news organizations in the past because they portray him in a positive light.  In one typical tweet, Trump stated:  @MSNBC and @CNN are unwatchable.  @foxandfriends is great!.”

The Administration’s decision to discriminate among media outlets based upon content and allow favorable media organizations to attend press briefings, while excluding news organizations that may be critical of the Administration, is an unprecedented move on the part of the Administration.  It also violates the First Amendment.

The law on this issue has been well-established for decades.  In 1977, the D.C. Circuit issued its opinion in Sherrill v. Knight,[1] a case that held that the White House cannot arbitrarily deny press passes to journalists.  In the case, the government had argued that “because the public has no right of access to the White House, [] and because the right of access due the press generally is no greater than that due the general public,[] denial of a White House press pass is violative of the first amendment only if it is based upon the content of the journalist’s speech or otherwise discriminates against a class of protected speech.”  The court rejected that position as too narrow, but did agree that “arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment.”

The court further clarified that the protections of the First Amendment are larger than a mere prohibition against content-based discrimination.   In particular, the court 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. [] 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 newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information.”

In Huminski v. Corsones,[2] the federal Second Circuit Court of Appeals further explained what is at risk here:  “Exclusion of an individual reporter [] carries with it the danger that granting favorable treatment to certain members of the media allows the government to influence the type of substantive media coverage that public events will receive, which effectively harms the public. []  If choice were allowed for discrimination in a public event in the various media, then we reject the contention that it is within the prerogative of a government official.   We rather think that the danger would be that those of the media . . .  who the official thinks are not treating him fairly would be excluded. And thus we think it is the public which would lose.  Neither the courts nor any other branch of the government can be allowed to affect the content or tenor of the news by choreographing which news organizations have access to relevant information.”

In this case, it is clear that the Trump Administrative denied access to journalists based on the content of their publications.  This clear content-based discrimination violates the First Amendment.  As the Second Circuit stated in Huminski, no “branch of the government can be allowed to affect the content or tenor of the news by choreographing which news organizations have access to relevant information.”

[1] Sherrill v. Knight, 569 F.2d 124, 126 (D.C. Cir. 1977).

[2] Huminski v. Corsones, 386 F.3d 116 (2nd Cir. 2004).

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