President Trump’s decision to ban CNN, MS NOW, and Politico from the White House has sparked intense debate online — and a court order to reinstate the journalists’ access to the White House immediately. Read our latest essay to see what the law, and history, have to say about that. As for the online debate, whataboutism and red herrings reign supreme, with people saying these outlets aren’t really press, that access isn’t really a right, that the other guys did it first.
Let’s take a look at each of the main criticisms, what they get right, and where each one runs out of road.
1. They’re propaganda, not press, so they’re unprotected.
Someone at the White House does have to decide who gets a press pass, and it’s fine for them to ask neutral questions, like whether an applicant regularly publishes news. What the government cannot do is decide who counts as “the real press” based on whether it likes the coverage. When the official making that call is the subject of the reporting, and the test is whether the reporting is fair to him, that’s the precise abuse of power the Press Clause of the First Amendment exists to prevent.
The First Amendment protects journalism, regardless of whether those in power view the reporting or commentary as sufficiently fair or adequately favorable. As far as the First Amendment is concerned, anyone gathering and reporting the news, with or without a government credential, is part of the press. A White House press pass can come with added requirements, but those requirements have to be objective and viewpoint-neutral. “Make the president look good” can’t be one of them.
This argument is based upon the notion that presidents should be able to handpick the reporters who get access. None of us are better off when press passes become de facto loyalty oaths.
2. White House access is a privilege, not a right.
This is true as far as it goes, but also irrelevant. Places the White House opens up for expression are, at a minimum, considered “nonpublic forums.” This includes the James S. Brady Press Briefing Room, the press workspaces in the West Wing, and the North Lawn. The White House has no obligation to open them up. But once it does, the First Amendment analysis changes.
You don’t necessarily have a right to borrow books from the public library, but the city cannot revoke your library card because you insult the library board at a public meeting. You don’t necessarily have a right to a fishing license, but the state can’t take yours away for writing a letter to the editor of a local paper attacking the governor.
In a nonpublic forum, the First Amendment lets the government set reasonable restrictions based on the purpose of the forum itself. But in Perry Education Association (1983), the Supreme Court said these restrictions cannot be put in place “merely because public officials oppose the speaker’s view.” And in Sherrill v. Knight (1977), the D.C. Circuit said White House officials cannot use “arbitrary or content-based criteria” in issuing press passes.
But that’s exactly what the president did here. The White House has granted access to reporters for decades, and the Trump administration continued this access for almost six years. Sure, no outlet has an affirmative right to a desk in the briefing room and the White House is under no obligation to let reporters into its facilities in the first place. But it has already let reporters in. It can’t shut specific reporters out simply because it dislikes what they have to say.
3. Where were you when Biden did it?
Okay, but “they started it” only asserts that the practice is bipartisan, not that it’s lawful. And the Trump administration’s action of indefinitely banning news outlets from the entire White House grounds based on disapproval of their reporting is particularly extreme. By the way, FIRE was critical of the Biden administration’s jawboning and filed an amicus brief in Murthy v. Missouri, arguing that pressuring platforms to remove COVID content violated the First Amendment. But also, if the concern is that the other side does it too, then that’s all the more reason not to allow it when it’s your side — because they’ll be back in office soon enough. As SusanK1717 notes:
4. Nothing really changed because they can still report.
Constitutional injury doesn’t depend on whether you can still exercise your First Amendment rights somewhere. The location matters. A concerned citizen speaking out against their city council still gets her rights violated when she’s tossed to the sidewalk, even though she can keep speaking elsewhere. The harm here is viewpoint-based retaliation: As discussed earlier, the White House opened up its halls for reporters, so the president can’t just revoke their access because he doesn’t like their reporting. That’s unconstitutional, which Judge Timothy Kelly recognized in his Thursday order to reinstate access.
Moreover, practically speaking for a White House reporter, the location is the job, and it comes with briefings, gaggles, pool rotations, and travel. Only reporters on the scene can observe events firsthand and ask officials questions in real time. Even more concerning, if an outlet can lose access because, as Trump later told reporters, they “purposely write negative news,” then every newsroom will quickly learn the price of reporting a tough story, and not all of them can afford the cost of a First Amendment lawsuit (which is part of the point).
What ties these four genres of commentary together is that each one asks you to trust that the government, free from the First Amendment’s constraints, will draw the line somewhere reasonable — that it will correctly identify who’s really press, revoke access only from the deserving, and so on.
Thankfully, the First Amendment does apply. The genius of our Constitution is that it assumes the person drawing the line will eventually be someone you don’t like, so it forbids all of them from drawing it based on whether they like what you say. It might feel justified when it’s happening to the other guys, but it helps to remember that soon enough, we all end up as the other guys.