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.
We should recall how past SCOTUS justices who cared to inform Americans about the crucial truth about and vital purposes of our freedom of expression and communication kindly and conscientiously quoted a crucial clarification by the First Continental Congress in 1774. SCOTUS justices did so in majority opinions in Near v. Minnesota, 283 U.S. 697 (1931) and Roth v. United States, 354 U.S. 476 (1957).
On October 26, 1774, the First Continental Congress penned its Letter to the Inhabitants of Quebec and declared “five great rights” of all American citizens. That august assemblage included some of the brightest stars, not only of the American Revolution, but also of the future new government under our Constitution starting in 1789. It included the commander in chief of the Continental Army (George Washington) and our first two presidents, Washington and John Adams, and our first SCOTUS Chief Justice, John Jay (each of whom also was a member of the Second Continental Congress).
One of the “great rights” they declared was “the freedom of the press.” Fortunately, the 1774 Congress did more than merely write that right. They emphasized its meaning and power:
"The importance of this consists," in part, in "the advancement of truth" and the "diffusion of liberal sentiments on the administration of Government," by "ready communication of thoughts between [citizens], and its consequential promotion of union among [citizens], whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs."
SCOTUS also quoted the same language from 1774 in Thornhill v. Alabama, 310 U.S. 88 (1940), but SCOTUS substituted “ashamed” for “shamed.” Thornhill is a profoundly important opinion that is almost unknown to Americans. The Thornhill SCOTUS justices faithfully supported our Constitution with the following crucial elaboration:
"The freedom of speech and of the press" (the freedom of expression and communication) that the People "guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."
The right at issue here isn't merely a right of access. It is the right of the people to criticize all our public servants.
It is well worth recalling the wisdom of the unanimous SCOTUS that carefully considered this issue in New York Times Co. v. Sullivan. Retaliating against speakers for criticizing any public servant's purported public service "reflect[s] the obsolete doctrine that the governed must not criticize their governors," i.e., the doctrine of so-called seditious libel.
Absolutely all "‘public men, are, as it were, public property," and "discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled." "Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government." "Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer."
SCOTUS in Sullivan highlighted that James Madison in 1800 highlighted that "the Constitution created a form of government under which ‘The people, not the government, possess the absolute [actual] sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." So "the nature of [our] Republican Government" (see Article IV requiring the U.S. to "guarantee" a "Republican Form of Government") is that, in general, "the censorial power is in the people over the Government, and not in the Government over the people."
This is an instance in which the SCOTUS majority’s opinion in Citizens United v. Federal Election Commission in 2010 should do some good. “When Government seeks to use” official “power” to “command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.” “The censorship we now confront” has “muffle[d some of] the voices that best represent the most significant segments of the economy.”
More important, “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” “The right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government” (self-government implies sovereignty) and it is “a necessary means to protect it” (our self-government and our sovereignty). Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power and duty of sovereignty.
The first principle here is that “the people are sovereign” in our “republic.” Our powers as sovereigns necessarily include “the ability of the citizenry to make informed choices” about many public servants and public issues. That “ability” is “essential” to the operation of our Constitution. “Speech” (including hearing speech) “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.”
“Political speech” (including hearing speech) is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. “The Constitution” clearly “confers upon voters” (as sovereigns) the “power to choose” (directly or indirectly) some of our public servants. “Discussion of public issues and debate on the qualifications of” current or potential public servants “are integral to the operation of the system of government established by our Constitution.”
“In the realm of protected speech,” government “is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.” “Political speech” (including hearing speech) is “indispensable to decisionmaking in a democracy, and this” is “true” regardless of whether “the speech comes from a corporation” or “an individual.”
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.” “As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” “The First Amendment protects speech and speaker, and the ideas that flow from each.” So “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”
“[T]he worth of speech” cannot “depend upon the identity of its source.” “Government cannot restrict political speech based on the speaker’s corporate identity” or individual identity. “[T]he First Amendment does not allow political speech restrictions based on a speaker’s corporate identity” or individual identity.
Our sovereignty means that “political speech” (and the ability to hear political speech) “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech” (and the ability to hear political speech) “are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.” That is a burden of proof that Trump cannot bear.
In support of Trump’s denial of access to the White House, the Oval Office or the Pentagon to some members of the media, some also argue that none of those are a “public forum.” Such arguments obviously are contrary to SCOTUS precedent (and D.C. Circuit precedent) addressing locations that constitute a “limited public forum.” When the government opens access—even access limited to particular members of the press—for the particular purpose of communicating with the American public about public issues, that necessarily makes that location a limited public forum while it is being used for that very public purpose.
Our Constitution also expressly addresses an analogous location that is a limited public forum. In Article III, the People commanded that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” Article III was amended by Amendment VI, which clarified that “[i]n all criminal prosecutions, the accused shall enjoy the right to” a “public trial.” Clearly, courts are “public” when they are used for conducting a criminal trial.
Of course, courts may restrict access to courtrooms and, especially, to particular parts of courtrooms. Courts may and routinely do restrict and otherwise heavily regulate who may speak, when they may speak, about what they may speak and even how they may speak. But no court in any criminal or civil case has any power to exclude any person (including any journalist) because of their mere opinion or viewpoint.
Arguments that journalists have no “right of access” (or “the Constitution doesn’t secure a right of access”) to the White House or to the Oval Office or to the Pentagon is a red herring. It's also not faithful to the plain text and plain meaning of our Constitution.
The right at issue is not necessarily a right to have access to anything. Our Constitution is clear that our rights are not limited to our right to do anything. Often, a right is to not be deprived of or denied something. Amendment V uses the word "deprived" and Amendment XIV uses the words "deprive," "deny," "denied" and "abridged" to establish our right to be secure from potential government abuses or usurpations of power.
In a similar manner, in Article I the People commanded that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Second Amendment similarly emphasizes that a “right of the people . . . shall not be infringed.”
Obviously, the First Amendment is most directly relevant here. No federal official was given any power of “abridging the freedom of speech, or of the press” or “the right of the people peaceably to assemble.” Additional amendments also use the word abridged to secure particular exercises of the freedom of expression, communication, association and assembly from unconstitutional interference by any state or federal official. The Fifteenth Amendment, the Nineteenth Amendment, the Twenty-Fourth Amendment and the Twenty-Sixth Amendment expressly secure the right to be free from having the right to vote “denied or abridged.”
How does the argument "it is a privilege, not a right” even begin to make any sense?
Such an assertion makes no sense under our Constitution. No logic or legal authority whatsoever can cause anyone to conclude (rationally) that our privileges are somehow inferior to our rights. That is established by the four instances in which our Constitution uses the word “privilege.”
In Article I, the People commanded that “Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” The People also prescribed another privilege for our directly-elected representatives in Congress: “for any Speech or Debate in either House, they shall not be questioned in any other Place.” In a similar manner, the People commanded that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
In Article IV, the People commanded that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
The Fourteenth Amendment followed suit. It established that “All persons born or naturalized in the United States . . . are citizens of the United States” and “No State” has any power to purport to either “make or enforce any law” that would “abridge the privileges or immunities of citizens of the United States.” It also established that such privileges and immunities include the right not to be “deprive[d]” of “life, liberty, or property, without due process of law” and the right not to be denied “the equal protection of the laws.”
The privileges and immunities of U.S. citizens also include all the rights that are enumerated in our Constitution. Moreover, the Ninth Amendment expressly emphasized that the privileges and immunities of U.S. citizens also include other “rights” that were “retained by the people” even though they were not included in any “enumeration in the Constitution.”
We should recall how past SCOTUS justices who cared to inform Americans about the crucial truth about and vital purposes of our freedom of expression and communication kindly and conscientiously quoted a crucial clarification by the First Continental Congress in 1774. SCOTUS justices did so in majority opinions in Near v. Minnesota, 283 U.S. 697 (1931) and Roth v. United States, 354 U.S. 476 (1957).
On October 26, 1774, the First Continental Congress penned its Letter to the Inhabitants of Quebec and declared “five great rights” of all American citizens. That august assemblage included some of the brightest stars, not only of the American Revolution, but also of the future new government under our Constitution starting in 1789. It included the commander in chief of the Continental Army (George Washington) and our first two presidents, Washington and John Adams, and our first SCOTUS Chief Justice, John Jay (each of whom also was a member of the Second Continental Congress).
One of the “great rights” they declared was “the freedom of the press.” Fortunately, the 1774 Congress did more than merely write that right. They emphasized its meaning and power:
"The importance of this consists," in part, in "the advancement of truth" and the "diffusion of liberal sentiments on the administration of Government," by "ready communication of thoughts between [citizens], and its consequential promotion of union among [citizens], whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs."
SCOTUS also quoted the same language from 1774 in Thornhill v. Alabama, 310 U.S. 88 (1940), but SCOTUS substituted “ashamed” for “shamed.” Thornhill is a profoundly important opinion that is almost unknown to Americans. The Thornhill SCOTUS justices faithfully supported our Constitution with the following crucial elaboration:
"The freedom of speech and of the press" (the freedom of expression and communication) that the People "guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."
The right at issue here isn't merely a right of access. It is the right of the people to criticize all our public servants.
It is well worth recalling the wisdom of the unanimous SCOTUS that carefully considered this issue in New York Times Co. v. Sullivan. Retaliating against speakers for criticizing any public servant's purported public service "reflect[s] the obsolete doctrine that the governed must not criticize their governors," i.e., the doctrine of so-called seditious libel.
Absolutely all "‘public men, are, as it were, public property," and "discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled." "Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government." "Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer."
SCOTUS in Sullivan highlighted that James Madison in 1800 highlighted that "the Constitution created a form of government under which ‘The people, not the government, possess the absolute [actual] sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." So "the nature of [our] Republican Government" (see Article IV requiring the U.S. to "guarantee" a "Republican Form of Government") is that, in general, "the censorial power is in the people over the Government, and not in the Government over the people."
This is an instance in which the SCOTUS majority’s opinion in Citizens United v. Federal Election Commission in 2010 should do some good. “When Government seeks to use” official “power” to “command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.” “The censorship we now confront” has “muffle[d some of] the voices that best represent the most significant segments of the economy.”
More important, “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” “The right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government” (self-government implies sovereignty) and it is “a necessary means to protect it” (our self-government and our sovereignty). Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power and duty of sovereignty.
The first principle here is that “the people are sovereign” in our “republic.” Our powers as sovereigns necessarily include “the ability of the citizenry to make informed choices” about many public servants and public issues. That “ability” is “essential” to the operation of our Constitution. “Speech” (including hearing speech) “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.”
“Political speech” (including hearing speech) is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. “The Constitution” clearly “confers upon voters” (as sovereigns) the “power to choose” (directly or indirectly) some of our public servants. “Discussion of public issues and debate on the qualifications of” current or potential public servants “are integral to the operation of the system of government established by our Constitution.”
“In the realm of protected speech,” government “is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.” “Political speech” (including hearing speech) is “indispensable to decisionmaking in a democracy, and this” is “true” regardless of whether “the speech comes from a corporation” or “an individual.”
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.” “As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” “The First Amendment protects speech and speaker, and the ideas that flow from each.” So “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”
“[T]he worth of speech” cannot “depend upon the identity of its source.” “Government cannot restrict political speech based on the speaker’s corporate identity” or individual identity. “[T]he First Amendment does not allow political speech restrictions based on a speaker’s corporate identity” or individual identity.
Our sovereignty means that “political speech” (and the ability to hear political speech) “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech” (and the ability to hear political speech) “are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.” That is a burden of proof that Trump cannot bear.
In support of Trump’s denial of access to the White House, the Oval Office or the Pentagon to some members of the media, some also argue that none of those are a “public forum.” Such arguments obviously are contrary to SCOTUS precedent (and D.C. Circuit precedent) addressing locations that constitute a “limited public forum.” When the government opens access—even access limited to particular members of the press—for the particular purpose of communicating with the American public about public issues, that necessarily makes that location a limited public forum while it is being used for that very public purpose.
Presidents historically have made the Oval Office a “limited public forum” during the periods in which they invite members of the press (see https://www.youtube.com/live/DWlJ41aJe78?si=i50z_t9ptyJvuCbr) and even invite members of the public (see https://www.youtube.com/watch?v=25jKDkQtriU) into it for purposes of communicating with the public about public issues.
Our Constitution also expressly addresses an analogous location that is a limited public forum. In Article III, the People commanded that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” Article III was amended by Amendment VI, which clarified that “[i]n all criminal prosecutions, the accused shall enjoy the right to” a “public trial.” Clearly, courts are “public” when they are used for conducting a criminal trial.
Of course, courts may restrict access to courtrooms and, especially, to particular parts of courtrooms. Courts may and routinely do restrict and otherwise heavily regulate who may speak, when they may speak, about what they may speak and even how they may speak. But no court in any criminal or civil case has any power to exclude any person (including any journalist) because of their mere opinion or viewpoint.
Arguments that journalists have no “right of access” (or “the Constitution doesn’t secure a right of access”) to the White House or to the Oval Office or to the Pentagon is a red herring. It's also not faithful to the plain text and plain meaning of our Constitution.
The right at issue is not necessarily a right to have access to anything. Our Constitution is clear that our rights are not limited to our right to do anything. Often, a right is to not be deprived of or denied something. Amendment V uses the word "deprived" and Amendment XIV uses the words "deprive," "deny," "denied" and "abridged" to establish our right to be secure from potential government abuses or usurpations of power.
In a similar manner, in Article I the People commanded that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Second Amendment similarly emphasizes that a “right of the people . . . shall not be infringed.”
Obviously, the First Amendment is most directly relevant here. No federal official was given any power of “abridging the freedom of speech, or of the press” or “the right of the people peaceably to assemble.” Additional amendments also use the word abridged to secure particular exercises of the freedom of expression, communication, association and assembly from unconstitutional interference by any state or federal official. The Fifteenth Amendment, the Nineteenth Amendment, the Twenty-Fourth Amendment and the Twenty-Sixth Amendment expressly secure the right to be free from having the right to vote “denied or abridged.”
How does the argument "it is a privilege, not a right” even begin to make any sense?
Such an assertion makes no sense under our Constitution. No logic or legal authority whatsoever can cause anyone to conclude (rationally) that our privileges are somehow inferior to our rights. That is established by the four instances in which our Constitution uses the word “privilege.”
In Article I, the People commanded that “Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” The People also prescribed another privilege for our directly-elected representatives in Congress: “for any Speech or Debate in either House, they shall not be questioned in any other Place.” In a similar manner, the People commanded that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
In Article IV, the People commanded that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
The Fourteenth Amendment followed suit. It established that “All persons born or naturalized in the United States . . . are citizens of the United States” and “No State” has any power to purport to either “make or enforce any law” that would “abridge the privileges or immunities of citizens of the United States.” It also established that such privileges and immunities include the right not to be “deprive[d]” of “life, liberty, or property, without due process of law” and the right not to be denied “the equal protection of the laws.”
The privileges and immunities of U.S. citizens also include all the rights that are enumerated in our Constitution. Moreover, the Ninth Amendment expressly emphasized that the privileges and immunities of U.S. citizens also include other “rights” that were “retained by the people” even though they were not included in any “enumeration in the Constitution.”