The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Trump's attacks on the "fake news" media—"the enem[ies] of the people," including the New York Times, CNN and NBC News—would be hilarious, coming from a guy who routinely makes up facts (on everything from the murder rate to the number of people casting ballots illegally (and who they voted for!) in the presidential election to the size of the trade deficit to the number of people attending his inauguration to . . . ) and whose election, we now know, was supported by a large number of "disinformation" websites operated and/or funded by a hostile foreign government, were it not so disturbing.
It made me wonder: Does last week's "Gaggle Order"—the decision to ban the New York Times, CNN, Politico, Buzz Feed, and the Los Angeles Times reporters from Sean Spicer's press "gaggle"—violate the First Amendment?
Turns out that's a close question. It certainly looks, at first glance, like a prohibited content-based (or possibly even viewpoint-based) discrimination limiting the affected outlets' ability to receive information, which would subject it to the highest form of First Amendment scrutiny and require some "compelling" justification to be constitutional. On the other hand, surely the First Amendment doesn't prevent a president (or his press secretary) from, say, granting an exclusive interview (or providing a "leak") to one (favored) reporter or paper or TV network and not another.
There's actually an old D.C. Circuit case that is rather closely on point: Sherrill v. Knight (569 F.2d 124 (1977), available here). Sherrill, the Washington correspondent for the Nation—a publication with well-known left-wing proclivities—applied for and was denied a White House press pass (during LBJ's presidency). The denial, however, was apparently due not to any content- or viewpoint-based animus towards Sherrill or to the Nation, but "resulted solely from the determination of the Secret Service, after investigating Mr. Sherrill, that he not be issued the pass"—although the Secret Service refused to reveal to Sherrill the information it had on which the denial was based.
The court concluded that while it would not order the White House to issue the pass, it would order the White House to provide Sherrill with "notice, opportunity to rebut, and a written decision" regarding his application.
The court held (and the government itself conceded) that "the denial of a White House press pass potentially infringes upon first amendment guarantees. . . . [and] it is violative of the first amendment … if it is based upon the content of the journalist's speech or otherwise discriminates against a class of protected speech. . . . Arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment."
The court rejected the government's argument that "because the public has no special 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."
[W]e are presented here with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news-gathering under the first amendment guarantee of freedom of the press, see Branzburg v. Hayes, 408 U.S. 665, 681, 707 (1972); Pell v. Procunier, 417 U.S. 817, 829-35 (1974), requires that this access not be denied arbitrarily or for less than compelling reasons. See Southeastern Promotions v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Lovell v. Griffin, 303 U.S. 444 (1938)….
Given "the important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists," the court held that such refusal "must be based on a compelling governmental interest."
Clearly, protection of the president is a compelling, "even an overwhelming, interest." The court had no basis "for rejecting the explicit finding of the District Court that . . . denial of a press pass to [Sherrill] proceeded solely from concern for the physical security of the President," and thus the court was unwilling to order the White House to issue Sherrill a pass. It did, however, order the White House to provide "notice [to Sherrill] of the factual bases for denial, an opportunity for him to respond to these, and a final written statement of the reasons for denial," which it called "a minimum prerequisite for ensuring that the denial is indeed in furtherance of Presidential protection, rather than based on arbitrary or less than compelling reasons."
So if the White House had revoked a New York Times reporter's press pass, or denied access to the White House press room, there would be strong grounds for a claim of unconstitutional executive action. But at the same time, the First Amendment doesn't prevent a president from, say, granting an exclusive interview to one (favored) reporter or TV network and not another; as the court put it, "it would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all."
So back to Spicer. The question here seems to turn on what, exactly, is this "press gaggle"? Is it more closely analogous to a press briefing, ostensibly open to any and all "bona fide" reporters? Or is it more like an interview, in connection with which the president (or his press secretary) has considerable discretion to "discriminate" between those he does or doesn't invite?
I can't say for certain; I had never heard of these "press gaggles" before, and I don't have a lot of information about how they operate, though it does sound like it's closer to the latter than to the former.
And while we're on the subject, what is particularly galling to me, and to anyone who calls him/herself a "Jeffersonian" as I do, is the way that Trump has enlisted Jefferson's support in his attacks on the press. For instance, at a Florida rally last week, he said:
They [the press] have their own agenda and their agenda is not your agenda. In fact, Thomas Jefferson said, "nothing can be believed which is seen in a newspaper." "Truth itself," he said, "becomes suspicious by being put into that polluted vehicle," that was June 14, my birthday, 1807. But despite all their lies, misrepresentations, and false stories, they could not defeat us in the primaries, and they could not defeat us in the general election, and we will continue to expose them for what they are, and most importantly, we will continue to win, win, win.
It is certainly the case that Jefferson had a very rocky relationship with the press, and said some very uncomplimentary things (as in the 1807 letter to John Norvell from which Trump was quoting) about them, and about what he called elsewhere "the putrid state into which our newspapers have passed and the malignity, the vulgarity, and mendacious spirit of those who write for them. . . . These ordures are rapidly depraving the public taste and lessening its relish for sound food."
But Jefferson—unlike some presidents I am aware of—understood very well the difference between his private disputes with the press and his personal views about press activity expressed in his private correspondence, on the one hand, and his statements and actions taken in his public capacity and his public writings on the other, in which he was quite possibly the strongest supporter of a free and unfettered press that this country has ever had.
He rode into office in 1800, of course, on the wave of public indignation about the Adams administration's Sedition Act, which made it a federal crime punishable by up to two years in prison to criticize the government—to "write, print, utter, or publish," any "malicious writings against the government of the United States, or either House of Congress, or the President," or anything that would "bring them into disrepute."
Here's the text of the Sedition Act, which is worth reading if you've not read it before:
And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years."
Scores of newspaper editors had been tossed into jail, and it was Jefferson, along with James Madison, who led the fight to declare the act unconstitutional.***
*** The Virginia Resolution, passed by the state assembly (and co-authored by Jefferson and Madison) declared that the Sedition Act (along with its sister statute, the Alien Act) was unconstitutional:
"It exercises a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right….
[The Virginia Constitution] expressly declares that among other essential rights, "the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States," … it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn to the most palpable violation of one of the Rights declared and secured in the [U.S.] constitution, and to the establishment of a precedent which may be fatal to the others….
[T]he General Assembly doth solemenly declare that the acts aforesaid are unconstitutional …
A wonderful anecdote—possibly anecdotal—from Jefferson's presidential years captures his attitude well.
'"In 1804, the celebrated traveller, Baron Humboldt, called on the President one day, and was received into his office. On taking up one of the public journals which lay upon the table, he was shocked to find its columns teeming with the most wanton abuse and licentious calumnies of the President. He threw it down with indignation, exclaiming, "Why do you not have the fellow hung who dares to write these abominable lies?"
The President smiled at the warmth of the Baron, and replied—"What! hang the guardians of the public morals? No sir,—rather would I protect the spirit of freedom which dictates even that degree of abuse. Put that paper into your pocket, my good friend, carry it with you to Europe, and when you hear any one doubt the reality of American freedom, show them that paper, and tell them where you found it. Sir, the country where public men are amenable to public opinion; where not only their official measures, but their private morals, are open to the scrutiny and animadversion of every citizen, is more secure from despotism and corruption, than it could be rendered by the wisest code of laws, or best formed constitution. Party spirit may sometimes blacken, and its erroneous opinions may sometimes injure; but, in general, it will prove the best guardian of a pure and wise administration; it will detect and expose vice and corruption, check the encroachments of power, and resist oppression; sir, it is an abler protector of the people's rights, than arms or laws."
"But is it not shocking that virtuous characters should be defamed?" replied the Baron. "Let their actions refute such libels," continued the President; "believe me, virtue is not long darkened by the clouds of calumny, and the temporary pain which it causes is infinitely overweighed by the safety it insures against degeneracy in the principles and conduct of public functionaries. When a man assumes a public trust, he should consider himself as public property, and justly liable to the inspection and vigilance of public opinion; and the more sensibly he is made to feel his dependence, the less danger will there be of his abuse of power, which is that rock on which good governments, and the people's rights, have been so often wrecked.'
[from Sketches of the Life, Writings, and Opinions of Thomas Jefferson (1832) by B. L. Rayner]
Jefferson truly believed—and acted always in accordance with the belief—that free speech and a free press were the two indispensable conditions for maintaining our freedom in the face of abusive governmental power.
"Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it. . . . Where the press is free and every man able to read, all is safe.To preserve the freedom of the human mind and freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, and speak as we think, the condition of man will proceed in improvement….
No experiment can be more interesting than that we are now trying, and which we trust will end in establishing that man may be governed by reason and truth. Our first object should therefore be to leave open to him all the avenues to truth. The most effectual agent hitherto found is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions….
An executive strictly limited, the right of war vested in the legislative body, a rigid economy of the public contributions, and absolute interdiction of all useless expences, will go far towards keeping the government honest and unoppressive. But the only security of all is in a free press. The force of public opinion cannot be resisted, when permitted freely to be expressed. the agitation it produces must be submitted to, for it is necessary to keep the waters pure.
He could not have been clearer: a rambunctious and occasionally scurrilous and abusive press—and if you think the press is a problem today on these grounds, you should read the papers from 1802 or thereabouts—is the price we pay to maintain and safeguard all of our other rights. "It is so difficult to draw a clear line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood. Considering the great importance to the public liberty of the freedom of the press, and the difficulty of submitting it to very precise rules, the laws have thought it less mischievous to give greater scope to its freedom than to the restraint of it."