Adler: May President Trump ban news organizations whose reporting he dislikes?
The question of whether the president may ban news organizations from attending official events in various places – the Oval Office, Mar-a-Lago and Air Force One – is before the courts, and the consequences for the First Amendment, freedom of the press and the public’s right to know are enormous.
The Trump administration’s denial to the Associated Press of access to official White House events, because the news organization refers to the Gulf of Mexico rather than the Gulf of America, represents “viewpoint discrimination” – a flagrant exercise in censorship – that a federal court should declare unconstitutional after a March 20 hearing on the AP’s lawsuit against the administration.
The AP, an iconic news service and a vital part of the White House Press Corps since 1846, has refused to bend to the will of President Donald Trump, which should please those wedded to the principles of freedom of speech and freedom of the press. The AP’s recent lawsuit sought a temporary restraining order and restoration of access to official White House events, but U.S. District Judge Trevor N. McFadden denied the plea on grounds that the news organization had not met the high burden of demonstrating that the denial of access would inflict irreparable harm and that it would likely prevail in litigation.
Still, the court, which informed administration lawyers during the hearing that “case law in this circuit is uniformly unhelpful to the White House when the White House has banned reporters” found sufficient indication of unconstitutional “viewpoint discrimination” – punishment of AP for its editorial word choices – to schedule further argument.
Freedom of the press, a pillar of democracy, is rendered ineffectual by arbitrary government methods of denying reporters access to newsmaking events. In 1980, in Richmond Newspapers v. Virginia, the Court held that the speech and press clauses of the First Amendment assured the public’s right to attend trials. Justice John Paul Stevens identified the sweeping importance of the opinion. “Until today, the Court has accorded virtually absolute protection to the dissemination of information or ideas, but never before has it squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever.”
The AP justly told the court that “we will continue to stand for the right of the press and the public to speak freely without government retaliation. This is a fundamental American freedom.” Indeed, the U.S. Supreme Court, in Rosenberger v. University of Virginia (1995), declared that when the government targets “particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”
The Trump administration’s exercise in content discrimination was not lost on the court. Judge McFadden cited an email sent by White House Chief of Staff Susie Wiles to the AP, blasting the news organization’s influential stylebook which, she wrote, “has been misused, and at times weaponized, to push a divisive and partisan agenda.” That “looked to me to be pretty viewpoint-based,” Judge McFadden stated.
More flagrant was the statement of Ed Martin, the interim and likely soon-to-be U.S. Attorney for D.C., who said, “As President Trump’s lawyers,” we are “vigilant in standing against entities like the AP that refuse to put America first.” Manifestly, federal prosecutors are not President Trump’s personal lawyers, and prosecutors may not target news organizations such as AP for not embracing and promoting the administration’s programs and policies.
If the Trump administration prevails in this case, one likely to reach the nation’s High Bench, there are at least two grave consequences for American democracy and the First Amendment.
First, the authoritarian nature of the ban means that only those news organizations that enjoy the approval of the president will be invited to official events. Say hello to State News.
Second, since the days of Thomas Jefferson, the press has been viewed as the “public’s right to know,” a crucial conduit for citizens to acquire information, which is integral to their ability to critique and criticize governmental acts and hold government accountable.
Without a free and independent press, John Adams wrote, “liberty cannot be preserved.”
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.