Freedom of the Press and of Speech: True and False
By David Henderson
Is freedom of the press a right or a privilege? Ted Olson thinks it’s a privilege.
Why CNN should have lost and Dennis Prager should lose.
I haven’t seen such a muddled discussion of freedom of speech and of the press in a long time. On the left, we have CNN and others claiming that freedom of the press means that Jim Acosta can’t legally have his White House press pass revoked. On the right, we have Dennis Prager claiming that by not showing some of his videos, various private firms are denying his freedom of speech.
Start with the CNN/Acosta issue. CNN’s lawyer Ted Olson says that there’s a First Amendment freedom of the press issue with the White House revoking Jim Acosta’s press pass. But even though he gets at least 4 minutes of this 6+ minute interview, he never says how it’s a First Amendment issue. His focus is on the importance of the First Amendment.
That’s not surprising. To argue that Acosta has a First Amendment right to be allowed a White House press pass, Olson would have to argue that everyone has such a right. The First Amendment, recall, is a recognition of people’s rights, not just of rights of major corporations. Just as the Fourth Amendment guarantees a right against unreasonable search and seizure, so the First Amendment guarantees the freedom of all us to speak, write, and publish. But nothing in it says that we have a right to enter the White House and sit in press briefings.
Guaranteeing such a right would be impossible. I used to write regularly for antiwar.com. They are an on-line press. They contemplated applying for a White House press pass when they had a representative in Washington. If they had applied, should the White House have been required to grant it? I don’t think so.
And the danger of Trump appointee Judge Timothy J. Kelly’s decision today that Acosta must be allowed in is that it will turn a right into a privilege. Imagine that I applied for a White House pass so that I could cover the White House for antiwar.com. We all know what would happen. If the White House replied at all, it would be with a big No. In other words, Acosta has a right that I don’t. But if he has a right that I don’t, then it’s not a right; it’s a privilege.
Nor does freedom of speech or of the press give a private actor an obligation to carry your content. That’s where Dennis Prager and Prager University are badly wrong. They claim that Google, which owns YouTube, is censoring by refusing to show some of their material. Now it’s true that Google is not even-handed. But is it censorship? Back in March, U.S. District Judge Lucy Koh got it right. Here’s how the Hollywood Reporter put it:
Since the First Amendment free speech guarantee guards against abridgment by a government, the big question for U.S. District Court Judge Lucy Koh is whether YouTube has become the functional equivalent of a “public forum” run by a “state actor” requiring legal intervention over a constitutional violation.
Koh agrees with Google that it hasn’t been sufficiently alleged that YouTube is a state actor as opposed to a private party.
“Plaintiff does not point to any persuasive authority to support the notion that Defendants, by creating a ‘video-sharing website’ and subsequently restricting access to certain videos that are uploaded on that website, have somehow engaged in one of the ‘very few’ functions that were traditionally ‘exclusively reserved to the State,'” she writes. “Instead, Plaintiff emphasizes that Defendants hold YouTube out ‘as a public forum dedicated to freedom of expression to all’ and argues that ‘a private property owner who operates its property as a public forum for speech is subject to judicial scrutiny under the First Amendment.’”
By the way, from what I know of Dennis Prager, I like him. From what I know of Donald Trump—and of Jim Acosta, for that matter—I don’t. And Prager University did a great video of me on the minimum wage. So none of this is personal.