Can public officials shut out journalists? It depends...

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

It already seems like a long time ago, but it’s only been a month since the Trump administration’s long-simmering clash with CNN reached a new level, with the cancellation of reporter Jim Acosta’s “hard pass” that gave him access to the White House. The pass was restored temporarily on the orders of a federal judge when CNN sued over the action, and then permanently when the White House press office deescalated the confrontation.

But it’s important to not let this incident go without examining the legal issues involved, since there’s the possibility that it may happen again, either at the White House or in county offices and city halls: perhaps even in the ones you cover, with reporters—perhaps you—being stopped from doing your job.

CNN argued that the removal of Acosta’s regular access to the White House violated both the First Amendment rights to freedom of speech and the press and the Fifth Amendment’s right of due process, since the pass was rescinded without warning and without an opportunity for him to argue against the action. But the judge based his ruling granting a preliminary injunction restoring Acosta’s pass only on the Fifth Amendment grounds, holding that a prior case established the principle that “the government must provide Mr. Acosta due process if it is to revoke his hard pass.”

“I want to make very clear a couple of things,” the judge said in his ruling from the bench. “I have not determined that the First Amendment was violated here. …”

That prior case was Sherill v. Knight, a 1977 appeal of the Secret Service’s denial of a White House press pass to The Nation correspondent Robert Sherrill. The appeals court held that the Secret Service must establish formal criteria for grants or denials of White House press passes, give reasons for its decisions, and also establish an appeals process. The appeals court rooted its decision in both the First and Fifth amendments.

The Acosta and Sherrill cases are not the only ones in which public officials have attempted to limit reporters’ access to press rooms and press conferences.

In 2007, Toledo, Ohio mayor Carleton S. Finkbeiner refused to notify a local radio station about scheduled press conferences, while informing other news outlets. He also refused to allow a reporter from the station to attend the press conferences when he found out about them anyway. The mayor actually disbanded a press conference when the reporter was able to gain access, turning it into a “briefing,” which only selected reporters were permitted to attend. A federal judge issued a temporary order requiring Finkbeiner to notify the reporter of press conferences, and allow him to attend. He then issued a permanent order, and then awarded the reporter attorney’s fees. The mayor’s actions, the court held, likely violated the First Amendment.

A federal court in Hawaii held in 1974 that there were similar First Amendment concerns when the mayor of Honolulu excluded a specific newspaper reporter from news conferences.

In a 1988 case, a federal judge issued a preliminary injunction barring Jefferson Parish Sheriff Harry Lee from not informing reporters from the New Orleans Times-Picayune about press conferences, and limiting them to submitting written questions and receiving only written responses. In issuing the injunction, the court held that “[t]he serious deprivation of First and Fourteenth Amendment rights suffered by plaintiffs as a result of Sheriff Lee’s discriminatory policy constitutes irreparable injury.”  The Texas Court of Appeals came to a similar conclusion in 1979 when a district attorney required only a particular media outlet to make an appointment for any interview.

But while courts have held that public officials excluding a particular reporter or news outlet from press conferences and other information-gathering processes that are generally open to other media raises First Amendment concerns, they have also held that public officials are free to refuse to answer questions from a particular person or outlet, as long as that person or outlet is not excluded from attending press events.

In a 2006 decision, a federal appeals court held that the governor of Maryland’s refusal to answer questions from reporters for the Baltimore Sun was not a First Amendment violation. Federal judges in Ohio reached similar conclusions in 2005 and 2004 when the mayors of Youngstown and Cleveland separately issued orders barring city employees from speaking to particular news outlets.

Thus when officials have done both—barring certain reporters or outlets and also refusing to answer their questions or provide them with information—courts have allowed legal action on the former, but not the latter. This was the conclusion of a federal appeals court in 1996 over such actions by public officials of Michiana, Mich., and a New Mexico trial court in a 2017 decision challenging similar practices by the state’s governor’s office.

The New Mexico decision, from last year, gives a good overview of the current state of the law:

To summarize: there is a limited right of access by the media to government information. Such right of access includes a right to receive information that is generally made available to the public or to other media outlets. The government cannot deny a particular media publisher access to routine information, such as press releases, made available to the media because of the particular publisher’s viewpoint or non-establishment characteristics. Nor can the government deprive a particular media outlet access to facilities or localities where other press representatives routinely gather news. However, it is also clear that a particular media outlet has no right to interviews or comments, not generally available to the public. Nor is it unconstitutional to deny a particular publisher preferential, non-routine information even if the reason for the denial is dissatisfaction with the publisher’s coverage.

While the storm over Jim Acosta’s access to the White House has passed, the many instances in the past when public officials have taken similar steps against specific reporters or media outlets indicate that this issue will likely arise again, either in the White House Press Room or some other government briefing room. And when that does happen, the media—both those subjected to the bans, and those that are not—must be prepared to act.

It is particularly important for reporters and media not affected by such bans to unite and support their brethren who become the target of such practices. This is because while they may not be subjected to this treatment at first, they may become the next target.

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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