The Trump administration announced earlier this month that CNN, MS NOW, and Politico would be barred from the White House because they were in “violation of the standards of professionalism and decorum.”
The three news organizations filed a lawsuit, arguing that the ban violates the First Amendment of the Constitution. In response, the Trump administration said, “Access to the White House is a privilege—not a right.”
Last week, a federal judge temporarily restored the outlets’ access. That makes many Americans wonder if the press has an enforceable right to cover the president in person, or can the White House withdraw the courtesy at will?
“The role of journalism is to hold power to account,” said Jayme Swain, president and CEO of VPM and the Virginia Foundation for Public Media, and a member of the Karsh Institute’s Advisory Board. “The White House is where the public’s business is conducted, and the press is there on the public’s behalf.”
“The role of journalism is to hold power to account. The White House is where the public’s business is conducted, and the press is there on the public’s behalf.”
That principle is widely championed on both sides of the aisle. Members of the media—from FOX News to MS NOW—believe they have a right to be free from interference by any administration.
The impulse to censor is not confined to one party, however. The Obama administration, for example, drew criticism for excluding Fox News from an interview with a Treasury official in 2009. But the Fox News reporters were never banned from a government building or stripped of their press badges.
“Regardless of party, you don't want the executive branch to be in control of what the news reports,” said Ian C. Kalish, a clinical supervising attorney at the Reporters Committee for Freedom of the Press and a lecturer at the UVA School of Law’s First Amendment Clinic. “The fundamental function of the press is to inform the public and hold the executive branch accountable, no matter which political party. This type of intrusion is not good for either side of the spectrum.”
The Trump administration is arguing the opposite: that physical presence in the building is unrelated to the First Amendment and is a special privilege it may grant or withhold. They point to the fact that there is no statute creating a White House press corps, no constitutional provision naming it, and little case law defining it.
The controlling authority is the 1977 D.C. Circuit decision Sherrill v. Knight, brought by a reporter who was denied a pass and argued he had been singled out for his coverage.
“Sherrill v. Knight is an important case,” said Kalish. “Once the White House opens up certain spaces for the press, who they grant access to in that context cannot be purely subject to their discretion. They must be constrained by clear parameters. As of now, Sherrillis binding law. If it is overturned, it would create significant problems for the press and open up the door to revocations of credentials.”
Defining those parameters leaves some latitude. A reporter disrupting the briefing room, for example, can be removed. And certain spaces can have different restrictions than others.
“There may be legitimate reasons to bar a reporter, and there is a process for that,” said Swain. “The line is crossed when access depends on whether the administration likes what a news organization reports.”
“There may be legitimate reasons to bar a reporter, and there is a process for that.”
Where that line falls depends on what kind of space the White House is. Under long-standing doctrine, sidewalks and parks are “public forums,” where officials may impose limits on what is broadly referred to as time, place, and manner—a noise ordinance, for example—but may not pick and choose by any given message.
Spaces dedicated to a particular purpose, like an airport terminal, are considered “non-public forums,” where the government may restrict speech more freely but still cannot discriminate by viewpoint.
“Everybody agrees the White House isn’t a public forum like a sidewalk where anyone can say what they want,” said Kalish. The Trump administration, however, sees it not as a non-public forum but as a third category: a space that functions more like a private office, where they can invite (or uninvite) whomever they want.
The question of who can be in the press room is compounded by the rapidly changing landscape of how news is reported and consumed. “Until 20 years ago, most Americans would pay attention to the same nightly news broadcasts, watching different reports on the same top stories,” said Bruce Williams, Ambassador Henry J. Taylor Professor of Media Studies at UVA. “And if you were a good citizen, you might read a newspaper too. What has changed is that everyone has a different answer now as to what the most important stories are, depending on what they’re reading and watching.”
Professional journalists are not the kind of gatekeepers they used to be, Williams added. “It’s not that they cover things differently,” he said. “It’s that they cover different things.”
“It’s not that [the press] covers things differently. It’s that they cover different things.”
As for the press pool case still in litigation, there’s no predicting how long the court will take to issue its ruling. The most similar recent case—the Associated Press’ suit after it declined to change “Gulf of Mexico” to “Gulf of America,” after President Trump’s executive order—has been grinding on since last year. “It’ll take quite a while for the case to move up the chain,” said Kalish.
But the timeline is not what troubles newsroom leaders most. It’s the claim of authority behind it.
“When the White House chooses which news organizations get access based on their coverage, it’s not just punishing reporters,” said Swain. “It’s deciding what the public gets to know. No administration, of either party, should have that power.”