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.
READER COMMENTS
blink
Nov 16 2018 at 10:50pm
I am with you regarding Google and YouTube — if a private company or group wishes to exclude certain people from its private platform, it ought to be free to do so. We probably should criticize such short-sighted censorship, but the government has no standing to object. Like you, the last think I want is the government to step in and demand equal time for opposing views should my Thanksgiving dinner conversation turn to politics!
Regarding government, on the other hand, I am at least sympathetic to some limits. When the government controls property — be it a park, courthouse, or debriefing room in the White House — I see less clear justification for excludability. I am not sure what the “right” answer should be in this case, but I am certain that the bar for exclusion should be higher and can believe that “due process” prior to revocation is that higher standard.
David Henderson
Nov 16 2018 at 11:52pm
So that would mean that antiwar.com should be allowed a press pass. You do realize that they could no longer hold the press conferences in the White House, don’t you? It would probably require a huge auditorium or maybe even the stadium where there Redskins play.
William Connolley
Nov 17 2018 at 3:31am
You seem to have got the Acosta stuff wrong. The judge didn’t rule on First, he (from your link) “sided with CNN on the basis of the suit’s Fifth Amendment claims, saying the White House did not provide Acosta with the due process required to legally revoke his press pass”.
Jon Murphy
Nov 17 2018 at 8:05am
Be that as it may, the post and concerns raised remain. The 5th Amendment deals with, among other things, the deprivation of “life, liberty, or property without due process of the law.”
Clearly, Acosta’s life was not removed. If it was his liberty, then we run into the aforementioned issue from David’s post: does the press have the right to entry to the press room? If it was his property, then the question remains with an added complication: does the press have a property right to the press room? This second question raises a whole host of issues beginning with: who actually owns the press room.
William Connolley
Nov 17 2018 at 1:32pm
“due process” is much wider than life, liberty or property. As you surely know. The odd thing here is that this article focusses on the First, even though the judgement was made explicitly on the basis of the Fifth.
And when you think about it, what seems “wrong” about the press pass being revoked is indeed not a freedom of speech matter, as this article notes; the wrongness lies in the White House’s treatment of an individual. The WH’s action was arbitrary, and motivated by pique; this is why it falls foul of the Fifth. And correctly so: the WH (aka the Govt) should not be able to play favourites, and try to intimidate journalists by withdrawl of access.
Mark Bahner
Nov 18 2018 at 6:34pm
The “due process” clause of the *5th* amendment only applies to “life, liberty, and property”. From the 5th amendment:
I agree that the WH’s action was “motivated by pique,” but that doesn’t mean it “falls foul of the Fifth.” As David noted, Jim Acosta was not deprived of “life, liberty, or property”.
In fact, I’d go further than David has gone, to venture (I’m not sure of this) that the “liberty” in Fifth Amendment actually meant freedom from imprisonment, rather than freedom of the press or freedom of speech (which were already covered in the First Amendment).
And as David also correctly points out, the WH “plays favourites” all the time. As he points out, if they didn’t, they’d need a stadium for press conferences.
I agree with you that it’s wrong for the WH to “try to intimidate journalists by withdrawal of access”. But I don’t agree it’s somehow unconstitutional.
Phil
Nov 19 2018 at 12:57pm
CNN certainly lost property by the exclusion of their agent, Acosta. For the media, direct access to the president is extremely valuable. Property need not be tangible. Any economic interest that is harmed counts.
When a government singles out an individual and harms their economic interests, that government needs to follow due process which involves proper notice and an opportunity to be heard. According to the judge, the White House could not explain the criteria for revoking credentials.
Mark Bahner
Nov 19 2018 at 4:23pm
They had a nice little condo in the press room, with a great view of the podium? 😉 Seriously, what property did they own that was taken?
A few questions. First, what evidence is there that the people who wrote the Fifth Amendment had that interpretation in mind when they wrote the Fifth Amendment? Second, the President and the rest of government do things all the time that “harms economic interest.” For example, the President has repeatedly trash-talked Amazon. My guess is that such talk harms Amazon’s stock (at least briefly). Do you think that means that Amazon can sue for economic damages, or to require the President to perform some process before he speaks? If not, how is that different from the “economic harm” (allegedly!) suffered by CNN?
J
Nov 17 2018 at 3:38am
I agree with you about Prager and that Acosta/CNN probably should lose their case, but I think the particular argument you make about Acosta may not work.
To help see why, I would think of something along the lines of a limited public forum (I know that isn’t the case here) or some form of licensing in which everyone is eligible for the license, but under which there are conditions. For instance, we’d say everyone has a “right to become a doctor” or to use public space for a protest, but may reasonably also think that there are still conditions that the right-haver can legitimately be required to meet.
So it seems to me that when you say it doesn’t make sense to assert a right to something, you’re basing that claim too much on the government getting to set conditions and not considering that some conditions might be unconstitutional. (I don’t mean to imply that I believe Acosta has necessarily been dealt with unconstitutionally. Im not sure what to think.) To say it one more way, I think “Olson would have to argue everyone has such a right” is wrong, if you differentiate between a “background” right to do something and th “specific” right to do it in a concrete way, subject to legitimate regulation.
Thabks for the post! I always enjoy reading you. Sometimes I can’t resist carping a little.
Vivian Darkbloom
Nov 17 2018 at 4:59am
David,
The text of the First Amendment is as follows:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Please note that there is a distinction (separated by the conjunction “or”) between “freedom of speech” and “freedom of the press”.
That said, there is no definition of what the “press” is, or how one should be credentialed as a member of “the press” (colloquially, a “journalist”). Given the internet, today virtually any blogger could be reasonably considered a “journalist” for purposes of the First Amendment. In this respect, you are correct about the “right” and “privilege” distinction.
I watched the exchange between Trump and Acosta several times. Acosta’s behavior was deplorable. In effect, he disrupted the freedom of press of everyone else present and the freedom of speech of the President. As far as I know, there is no right of any journalist, even a journalist admitted to the White House Press Corps, to pose questions verbally (necessarily to the exclusion of others). Freedom of the press is the right to write and publish what you want. This is not the right (or even privilege) to inhibit the rights of others to participate in the speech and press processes. As I saw it, that’s exactly what Acosta did (aside from just being plain rude and disrespectful).
But, that First Amendment issue has not yet been ruled on. The only thing the ruling by Judge Kelley does is grant the request for a temporary restraining order against taking Acosta’s White House pass. This was based on 5th Amendment due process and APA issues and not CNN’s First Amendment claim.
Alan Goldhammer
Nov 17 2018 at 9:24am
Wasn’t the original mistake Trump calling on Acosta for a question? It seems simple enough for Trump and his press Secretary Ms. Sanders to just say no to Acosta’s questions and then the issue goes away without all the Constitutional matters of the First and Fifth amendments.
Regarding getting credentials to be in the White House Press Corps, the list is quite long but a lot of those who are credentialed do not attend press briefings. A lot of years ago I had a good friend who was a former WaPo reporter and started a couple of newsletters when he retired in the mid-1970s so that he could maintain his White House credential. He invited me to one of the White House Correspondent Dinners (I think it was right after Clinton was elected, maybe 1993).
David Henderson
Nov 17 2018 at 10:27am
You write:
Sure. But I wasn’t addressing whether Trump made a mistake. I’m addressing the free speech and freedom of the press issue.
ToKen
Nov 17 2018 at 9:52am
If I want to hold a protest march in a public park, I usually need to get a permit from the police department. There are reasonable public policy reasons to require permits for that kind of thing. And there are reasonable cases where the police may deny a permit — if the protest march is likely to create a dangerous situation, or if it will overcrowd the park, etc. If the police deny my permit and I think they had no good reason to, I could seek relief from the court. That’s what Acosta did, and the court said that it’s an open question whether the “police” (Trump) improperly denied Acosta’s right to express himself in the Briefing Room. It is true that not everyone can express themselves in the Briefing Room, and if I apply for a press pass and the Trump administration denies me, I can sue if I think they didn’t have a good reason. But Acosta was allowed to until last week and then suddenly denied. It seems like a question that deserves adjudication whether that was done on reasonable grounds or not.
David Henderson
Nov 17 2018 at 10:29am
I think Jon Murphy above implicitly handled your point. CNN can sue if Trump didn’t use due process to deny him his life, liberty, or property. Which of those do you think the White House denied?
Robert EV
Nov 17 2018 at 11:44am
A press pass is property, isn’t it? More broadly the right to be in the white house press room during briefings is property, isn’t it? (Akin to the property right in California to have access to all beaches)
As to whether the right to particular property is a right or a privilege, based on the above interpretation I’d have to say that having the use of property is not a right, because property isn’t fungible. I don’t have a right to use a particular piece of land, or a particular object. I have a right to use my piece of land (rented though it is) and my objects. And if the another duly grants me the right to occupy a particular piece of property, for an express purpose, then I have to abandon that purpose to lose the right to have it. Or some other right (previously acknowledged expiration date, an employer’s right to terminate employment for any cause in at-will states, etc…) has to intercede.
The federal government isn’t an employer of Acosta. And otherwise people have the right to due process whenever the federal government takes any action whatsoever that’s harmful to them. Unless the ability to take such action without due process is explicitly granted to the federal government in the Constitution (e.g. the suspension of habeas corpus in times of rebellion).
Vivian Darkbloom
Nov 17 2018 at 11:58am
From the plaintiff’s complaint in CNN v. Trump et al:
“64. Plaintiffs have protected liberty and property interests in Acosta’s press credentials and the access it affords to the White House. The credentials allow Acosta access to his office in the White House and allow him to do his job effectively. Absent his credentials, he cannot serve as a White House correspondent.”
By focusing on whether one has, in theory, a legal right to a press pass to the White House in the first place you ignore the simple and important fact that a hard press pass *had already been issued* to Acosta and, until it was later taken back by the White House, that pass was valid. The pass is, for example, as much property as your bank card, a license to do business, a driver’s license, etc. While I don’t agree with CNN’s First Amendment claim, I think they are on much stronger ground in arguing that taking away an existing pass implicates both liberty and property as has been historially understood under due process cases and that revoking it requires some minimal due process, both under the 5th Amendment and the APA. Judge Kelley apparently agrees.
Alex
Nov 17 2018 at 2:10pm
“The pass is, for example, as much property as your bank card, a license to do business, a driver’s license, etc”
This is true but Acosta has the burden to prove that he was issued a pass that cannot be revoked. Just like if someone lets you in his house one day it doesn’t mean that he must let you in forever.
It is obvious to me that the person in charge of the presidency has full discretion over who gets to enter the White House and who doesn’t.
Robert EV
Nov 17 2018 at 2:37pm
No, the government has the obligation to prove that it has the right to revoke the press pass. And the only way it can do this is via due process.
The government isn’t private business. It’s the Constitutionally empowered and controlled government. It can license more easily than it can revoke.
To draw a parallel: Homesteads were the grant of ‘public’ land to private use. The government could grant those individual property rights with a simple congressional bill. But making that private property public again requires either buying it outright, or the due process of the takings clause.
Robert EV
Nov 17 2018 at 2:43pm
The white house is owned by the public. The executive branch merely has the license to use it to do business, and as a personal home for the president and family. How is it obvious that this license is absolute and exclusive?
Vivian Darkbloom
Nov 17 2018 at 2:51pm
“This is true but Acosta has the burden to prove that he was issued a pass that cannot be revoked.”
The burden of proof is always initially on the plaintiff in civil cases (however, that burden can be shifted in the course of the trial with respect to specific issues). However, in this case, claiming lack of procedural due process has nothing at all to do with “proving that the pass cannot be revoked” (especially in italics!). The relevant Fifth Amendment and statutory issues are whether Acosta and CNN were afforded the minimum procedural rights deemed necessary to revoke the pass. If one were to accept your logic, it would be like saying a criminal defendant on appeal has the burden to show he’s innocent when the issue is, for example, whether he was denied a jury trial.
Appropriately, the White House appears to be moving to remedy any procedural deficiencies if such a case arises again. To wit, they apparently plan to create rules of conduct for reporters and procedural steps to remove credentials if those established rules are violated. It is unfortunate that grown adults who are supposedly our country’s leading lights (politicians and journalists) behave like they are engaged in a cafeteria food fight, such rules might not be a bad idea.
Alex
Nov 17 2018 at 3:32pm
“The white house is owned by the public. The executive branch merely has the license to use it to do business, and as a personal home for the president and family. How is it obvious that this license is absolute and exclusive?”
It is obvious because the alternative would be absurd. Otherwise, each room in the White House would need a set of rules.
Like you say, the White House is owned by US citizens, who delegate its use for four years to whomever they chose as president. During this four years the president can use this place and let in whoever he or she wants, and if he or she doesn’t want to let someone in then this person cannot enter. After four years, the citizens of the US can evaluate if the president made good use of his office and reelect him/her or vote him/her out. After the president is out of office, he/she needs to get out of the White House and cannot get in unless he/she is invited by the next president.
But ok, lets assume that the press room is different, its an enclave in the White House over which the president has no control. Well, its very simple: the president can start giving press conferences somewhere else.
Dan Culley
Nov 17 2018 at 3:33pm
I’m not sure I follow. The government can impose reasonable time, place, and manner restrictions as long as they are content- and viewpoint-neutral. For example, they can grant press passes only to representatives of an organization with over a certain amount of distribution. That doesn’t somehow make it a “privilege” that is subject to arbitrary revocation.
Moreover, they cannot after granting the pass then turn around and revoke a press pass based on the viewpoint that the person with the pass expresses. That’s a pretty clear first amendment no-no.
Michael Sandifer
Nov 18 2018 at 1:32am
I see the issue of revoking Acosta’s press pass as being unconstitutional under the 5th amendment’s due process clause. Trump doesn’t have to take questions from reporters, but if he does, he’s limited in how he can discriminate.
He’s also limited with regard to the reasons he might refuse to grant access in the first place. He cannot refuse to take questions from black reporters, for example, but he can refuse access to those in the media below a certain threshold level in terms of audience. He, in fact, must work within the space constraints in the White House.
BC
Nov 18 2018 at 1:49am
Agree with Dan Culley on the viewpoint-neutral criterion. The White House can limit who gets a press credential, but it can’t exclude someone like antiwar.com for viewpoint reasons. In the Acosta case, there is a question whether the White House revoked his press pass purely for his behavior or, at least in part, because they didn’t like his generally anti-Trump viewpoint. That’s why due process is important — so that revoking press passes can’t be used to punish journalists for their views.
On the Google censorship, I don’t think it’s as simple as saying that, as a private entity, Google can censor however it sees fit. Google and other internet companies like Facebook have come under government scrutiny for the content on their sites. I think one congressperson even warned Facebook that, if Congress wasn’t “satisfied” with Facebook’s efforts to control content, then Congress would step in with more regulation. There is a danger that the government will pressure (or already have pressured) internet companies to censor content in a way that it would be unconstitutional for the government to do directly itself. I don’t know how to determine whether Google is censoring content because it wants to or because it thinks government is pressuring it to, but many government officials are at least trying to pressure it to.
Second, Google does hold YouTube out as a public forum dedicated to freedom of expression. Google is a public company, and investors view apolitical companies differently from companies established to advance a particular viewpoint, say a conservative or liberal media company for example. One could argue that, when companies describe themselves as engaging in apolitical businesses but start advancing political agendas instead, that they are misleading investors, which is securities fraud. As a private company, Google does have the right to censor content on its websites. However, if Google views part of its reason for doing business as advancing or suppressing certain political viewpoints, then it should describe itself that way to investors. It’s a material fact whether a company is liberal, conservative, or apolitical.
Bedarz Iliachi
Nov 19 2018 at 2:15am
Google, Facebook etc are trying to do two mutually contradictory things. They wish to curate their websites and also to be not held liable for the content they do host. I believe, legally speaking this maneuverer is slippery. Either, you declare yourself not to be liable for the content you do host but then you must accept all content that does not fall foul of the law. Or if you do content-policing you must accept liability of the hosted content.
Phil
Nov 20 2018 at 3:06pm
Condo? No. But Acosta did have an office in the White House that he was temporarily forbidden from using.
Whether the authors of the Fifth Amendment had this in mind at the time is inviting me to argue for or against orginalism as a proper form of constitutional interpretation. I’m not biting.
Finally, the President’s trash talk is so ubiquitous as to have no real effect, so the question is moot.
Comments are closed.