The President’s Ban on Journalists Is Disgraceful and Illegal

Dan Greenberg

President Trump’s White House has repeatedly attempted to deny journalists access to presidential press conferences. This time, the White House has excluded several journalists because their coverage was allegedly “one-sided” and “negative.” Such efforts by the White House are illegal; they have failed in the past, and they will fail in the future.

The reasons the Trump White House has given in the past for its attempts to pick and choose which journalists are allowed to cover it have varied, but all of them have one thing in common: they cannot be reconciled with the law. Jim Acosta’s press pass was revoked because he continued to ask questions and refused to yield his microphone to another journalist. Brian Karem’s press pass was revoked essentially because he made remarks that were understood as rude and confrontational. The Associated Press was excluded because it used the label “Gulf of Mexico,” rather than “Gulf of America.” 

But these justifications for exclusion—like the more recent White House complaints about negative news coverage—fail, because they are empty and unworkable under the law.

To be sure, the president may choose to selectively exclude journalists from relatively small or secluded spaces, even if they are spaces where presidential communication occurs—for example, the Oval Office, Air Force One, or Mar-a-Lago. But there is no lawful basis to keep politically disfavored journalists out of places like the Brady Briefing Room, where major press conferences are held, and the journalists who are suing for access there – CNN, MS NOW, and Politico – will shortly prevail. These journalists are just as entitled as anyone else with a White House press pass to attend press conferences​at such locations.

The right of journalists to attend press conferences in White House briefing rooms is something like the right of the public to use an unmarked dirt path on private property: after those with control of the property have historically allowed the public access to it, then such public access can become legally protected. Of course, the analogy is not perfect; more technically, once the White House opens up some particular room to journalists generally, that room becomes a non-public forum—and the exclusion of journalists from such fora on the basis of viewpoint is impermissible. (Getting a press pass to the White House involves clearing other hurdles—a background check, a residency requirement, congressional media approval, and so forth; the holder of a White House press pass thus acquires certain privileges that cannot be arbitrarily stripped away.) 

But to repeat: The standards that govern the universal access that such a non-public forum must provide are quite different from those that govern (say) a president’s practice of beckoning a few reporters into the Oval Office or calling up a favored journalist on the phone. In these latter categories, the White House has every right to pick and choose who the president talks to, and presidential picking and choosing that takes journalists’ particular viewpoints into account is entirely protected.

Again, though, the president cannot pick and choose which journalists are allowed access to a non-public forum based on a journalist’s viewpoint. Regrettably, when Donald Trump was asked why he was denying access to CNN, MS NOW, and Politico, his remarks demonstrated that viewpoint discrimination animated his choices:

Because they’re fake news. Uh, you get so tired of reading and seeing fake news. Uh, when you look at CNN, it’s just fake. That’s why their ratings are no good. When you look at MS NOW, which used to be MSNBC, which some people call MS DNC, Democratic National Committee, it’s fake news. It’s fake news … And when you look at Politico, I mean, they got a government—the government under Biden gave them like $8 million to keep them afloat. Uh, and the stories they wrote are fake „, You know how fake their reporting is. It’s one-sided. It’s never good. I’ve done many, many—look at this story today about, uh, favored nations on drugs. We lowered the drug costs by 50, 60, 70 percent. They won’t even put it—if they put it on, it’ll be—they will find a reason why that’s a negative … They’re smart people, but they purposely write negative news. And they do that because they want to try and diminish the Republicans and a Republican administration.

The president’s subsequent explanation of his powers and the media’s rights is particularly revealing:

I mean, there’s something wrong with a country that can allow people to write purposely negative stories. Now, if they want to write them, that’s fine, but I don’t have to let them into my—into the people’s house.

Public officials are sometimes under the mistaken impression that the powers and perquisites they acquire in government function like their own private property—that, for instance, Donald Trump can control every inch of the White House in the same way he can control every inch of Mar-a-Lago. Eventually, these public officials discover that they are mistaken and that they cannot use public property in the same way they use their own private property. 

It is a pity that Donald Trump has evidently not yet learned this important lesson, and it is unfortunately an open question what he will learn when he loses the lawsuit that CNN and others filed yesterday.