If you weren’t alarmed by Shitholegate last week, or by our president’s immediate and unconvincing denials shortly thereafter, you definitely should be now. President Donald Trump has now moved from merely attempting to discredit the press to actually physically removing respected members of the press pool from their briefings. On Tuesday, 45 actually ordered CNN’s White House correspondent Jim Acosta, expelled from the Oval Office after Acosta attempted to ask about Trump’s comments on immigration.
Full disclosure, Trump hadn’t invited the media with the intent of fielding any hard-hitting questions; the press had simply been summoned to look on with adoration as an ostensibly dignified President Trump welcomed Kazakhstan President Nursultan Nazarbayev to the White House. Acosta’s questions about whether Trump prefers more immigrants from Caucasian countries had to be something of a buzzkill.
When I tried to follow up on this in the Oval Office, Trump told me to get “out.” We then went to the Roosevelt Room where WH aides obstructed us from asking questions. https://twitter.com/Acosta/status/953316336834371586 …
1:32 PM – Jan 16, 2018
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Trump’s response? To point at Acosta and say, “out!” When Acosta recounted the experience with Wolf Blitzer later, he recalled that not only had Trump clearly ordered him out of the room, but that Deputy Press Secretary Hogan Gidley “got right up in [his] face” and started shouting at him to block out any questions. Acosta said that the exchange reminded him of, “something you might see in less democratic countries when people at the White House or officials of a foreign government attempt to get in the way of the press in doing their jobs.”
There’s no question that such a stifling of the press has no place in a free and open democracy. But what of the legal issues? Is it against the law for the president to throw a reporter out? It may very well be. Legally-speaking, when information is censored based on its content (as opposed to its general timing or general manner, for example), courts get a little touchy about it. Courts have held that government press conferences are “public fora,” open to the media. As such, restrictions must be based on criteria other than content. Jim Acosta is an accredited member of the White House press pool. His account of the events today points to his being ejected based precisely on the content of his question.
“The White House doesn’t have to conduct press conferences and probably can invite whom it wants to presidential interviews, but where a reporter is part of an accredited press pool, and then gets excluded on the basis of the content of his question, that certainly raises First Amendment concerns.”
Would the White House’s actions today be deemed censorship? Maybe. There’s certainly a chance they could be characterized as a form of “prior restraint,” the subsection of First Amendment law that deals with government prohibition of expression. It’s hard to say exactly how a court, if asked, might characterize the First Amendment’s restrictions on a president’s ousting a member of the press. Courts, though, will find ways to protect those values essential to our democracy, and Trump’s treatment of Jim Acosta today sure seems threatening to a free press.
As Mr. Freeman put it:
“There is no case law on this, presumably because no prior president has stooped to these depths in treating reporters in this way. And my guess is that the White House will obfuscate the facts to shed doubt on the notion that Mr. Acosta alone was excluded and that it was due to the substance of his question.”
While there may not be case law that shares these exact facts, there is definitely some that could give us some guidance. In Sherrill v. Knight (D.C. Circuit 1997), The Nation magazine sued after a journalist was denied a White House press pass. In that decision, the Circuit Court and lower court both said that the White House can’t just deny credentials based upon what the journalists say. “..[W]e agree with appellants that arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment,” the D.C. court wrote in the decision.
In another interesting case from 1988, the Jefferson Parish Sheriff’s Office didn’t like a story by the Times-Picayune so as retaliation, the deputies stopped notifying the newspaper’s reporters of press conferences, and also barred them from attending press conferences if they did find out about them. In Times-Picayune Publishing Corp. v. Lee, the court held that this move by the Sheriff’s office violated the First Amendment, writing that “discriminatory governmental action aimed at the communicative impact of expression is presumptively at odds with the First Amendment.” The court continued, “Above all else, the First Amendment means that the government cannot restrict freedom of expression on the basis of its ideas, message or content.” So that seems pretty clearly applicable to Trump’s treatment of Acosta, especially in light of Trump’s near-constant berating of CNN.
Courts, of course, do not always side with the media. Courts have ruled that it is permissible for government officials to restrict journalists’ access in some circumstances. For example, Trump could choose to give Fox News plenty of exclusive interviews, while totally restricting ABC from similar access. However, press conferences and press briefings have generally been held to be open to the media.
President Trump and his staff are hardly strangers to stifling the media, and free-press watchdogs have been expecting just today’s kind of action. In November, 2016, noted First Amendment lawyer Floyd Abrams gave a speech in which he pronounced that then-President-elect Trump “may be the greatest threat to the First Amendment since the passage of the Sedition Act of 1798.” Abrams, winning lawyer in the famous Pentagon Papers Supreme Court case and arguably the best-known First Amendment attorney in the country (and father of Law & Crime founder Dan Abrams), spoke us back then. His comments seem pretty prescient right now:
“Its seems to be that in light of the attacks made by then-Candidate Trump against the press on a continuing basis—his preventing certain journalists from even attending his rallies as part of the press corps because he disapproved of their writing, and his public comments about wanting to loosen American libel law—the press ought to be thinking broadly about how to defend itself if his Administration turns out to be as antagonistic to the press as may be the case.”
Abrams urged journalists to “think outside the box in response to a deliberately repressive Administration,” and even to consider using defamation law as a way of protecting themselves. Law & Crime spoke again with Floyd Abrams today, specifically about Trump’s treatment of Acosta. Abrams confirmed that this incident was just one of the things he had anticipated the Trump administration might do, and that though difficult to prove, it could well form the basis of a valid legal claim. Abrams said, “If a journalist were barred from being present at a public event because of his or her supposed political orientation a serious First Amendment challenge could follow.”
The next news cycle will surely bring more denials, more feeble spin, and more protestations of “fake news.” Whether Jim Acosta (or the next victim of an untimely Trump ouster) can successfully frame that hostility as a legally-actionable claim remains to be seen. We’ll certainly be watching.