Freedom of the press and the White House press corps

The U.S. Constitution prohibits the government from "abridging freedom of speech, or of the press." A free press is the bulwark to our democracy, and one protected by the First Amendment. Thomas Jefferson famously remarked: "Our liberty depends on freedom of the press, and that it cannot be limited without being lost."

Journalists have angered presidents from the time the country was founded. But President Donald Trump has shown a special antipathy to the press when it criticizes him or his administration. He routinely calls the press the "enemy of the people," and repeatedly refers to news stories as "fake news." In a tweet on Sept. 2, he called the media "beyond Fake, they are corrupt." He asks the public to believe him, and not what it sees or reads.

Trump's attacks against individual members of the press have gone beyond words. In February, the White House banned four journalists from covering Trump's dinner with Kim Jong Un after they asked questions he considered impertinent and discourteous. American news organizations called the ban capricious and arbitrary, but took no further action. Trump's ban stands in stark contrast to the actions of former presidents, who often took tough questions during meetings with autocratic leaders as a sign of openness and transparency.

Trump also has been caught up the swirl of litigation with the press. In late 2018, CNN sued Trump when the White House revoked the press pass of Jim Acosta, a reporter for CNN (CNN v. Trump, 18-cv-02610 (D.D.C.)). Acosta asked two questions about the "caravan" of migrants, and persisted in attempting follow-up questions before reluctantly giving up the microphone. Trump responded by calling Acosta "a rude, terrible person, and, when you report fake news which CNN does a lot, you are an enemy of the people." That night, the Secret Service asked Acosta to relinquish his White House press credentials. Acosta was the first reporter with a "hard pass" granting White House access to be banned. When the Trump administration refused to reinstate Acosta's credentials, CNN sued for a temporary restraining order and preliminary injunction.

In the transcript of the proceeding, the judge states: "In balancing the equities at stake, I find that the harm to Mr. Acosta from sustaining an ongoing violation of his Fifth Amendment (procedural) due process rights outweighs the government's interest in an orderly, respectful press conferences." Acosta's liberty interest in pursuing his chosen profession was the constitutionally protected interest. Although CNN also argued a violation of the First Amendment, the court's reasoning was based solely on Acosta's right to due process, and thus it did not consider the First Amendment argument. The court granted the TRO and ordered the immediate restoration of Acosta's press credentials.

Trump responded to the Acosta decision by stating that the White House would write rules to satisfy the court's due process concerns. In November 2018, former press secretary Sarah Sanders issued a press statement setting out a list of three rules governing reporter conduct at formal White House press conferences. The rules were accompanied by the warning that failure to comply may result in the suspension or revocation of the journalist's hard pass. The procedural due process problem was solved, right? Not so fast.

In late August, Trump was back in federal court over the White House decision to revoke another press pass (Karem v. Trump, 19-cv-02514 (D.D.C.)). This time the problem involved a verbal dust up between correspondent Brian Karem and former White House aide Sebastian Gorka in the Rose Garden following a Social Media Summit. The summit, which was characterized by a White House correspondent as being similar to a Trump campaign rally, invited 200 or so of Trump's closest conservative internet supporters to the event. The Karem-Gorka disagreement was captured on video and has been widely viewed on YouTube.

Karem's lawsuit alleged that Trump and White House violated his Fifth and First Amendment rights when his "hard pass" press credentials were suspended for 30 days in retaliation and punishment following his brief disagreement with Gorka. He moved for a TRO and preliminary injunction, which the district court granted on Sept. 3. The White House press secretary, Stephanie Grisham, argued that the suspension letter was based on Karem's conduct, and "when taken as a whole" violated widely accepted standards of "professionalism" and "decorum." The letter ominously states that Karem's conduct "warrant[ed] a significant sanction in order to deter ... Karem and other members of the press from disrupting White House events." In essence, Trump argued that the Acosta due process concerns were satisfied, namely notice was given and "rules" were clear.

The court thought differently, and thus rejected Trump's claim. It found a violation of due process, but did not consider Karem's First Amendment argument. The principal problem with the White House rules was that standards "professionalism" and "decorum" were unnecessarily vague and ambiguous. Although professionalism, has a common meaning, its application is subjective and context-dependent. It does not advise reporters with sufficient precision what is allowed and disallowed. The same holds true for "decorum."

The vagueness doctrine embodied in due process protection guards against these dangers by ensuring that regulated persons can practically discern what is required so they can act accordingly. Anyone who has witnessed a White House press briefing, or Trump taking questions in front of the whirling rotor blades of Marine One, knows that such events are by their nature freewheeling, chaotic, and unruly. At the other end of the spectrum, the decorum to be followed at a state dinner is quite different, so context matters.

Presumably, it's back to the drawing board at the White House to devise clearer standards that meet procedural due process concerns. Assuming the White House is successful, the next legal shoe to drop by journalists when banned or denied access is apt to arise under the First Amendment. Stay tuned, it is apt to be only a matter of time. 