Every administration is tempted to confuse two different questions:
Does the press have the right to be in the White House?
Does the president have the right to punish the press for what it publishes?
The first question is easy. The White House is not a public park. It is an office, a residence, a high-security facility, and the symbolic crown of our republic. No news organization has an entitlement to a permanent pass, a briefing room seat, or questions at a press conference. Those have always been privileges, given through a credentialing process that involves discretion, limited space, and security review. Any president or his administration can limit the number of reporters in the Oval Office, or the Briefing Room, and decide who gets face time.
The second question is harder, and it is the one now before Judge Timothy Kelly.
On Sep 18th, President Trump announced that CNN, MS NOW, and Politico would be barred from White House grounds. On Sep 19th, their reporters were stopped at the gate and their passes taken. On Sep 21st, the three organizations sued, seeking a temporary restraining order.
The White House is arguing the first question. The outlets are arguing the second. Under precedent, the second is what controls.
In Sherrill v. Knight in 1977, the D.C. Circuit confronted almost exactly this scenario. A reporter was denied a White House pass. The court held that while the White House does not have to open its doors to everyone, once it creates a system of access for the press generally, it cannot administer that system arbitrarily, or in a way that discriminates based on viewpoint, without due process.
Judges appointed by presidents of both parties have reaffirmed that holding, including Judge Kelly himself in 2018, when he ordered the restoration of Jim Acosta’s pass. The principle is not that CNN is entitled to a chair in the briefing room, but that the government- having created the privilege of access, cannot take that access away because it dislikes what is being said.
That is why the administration’s own statements will matter more than its legal briefs. The president said the outlets were being barred because they write “FICTION and LIES” and “fake news.” He later described the action as an assault on “FAKE NEWS” that is a “threat to our National Security.” If the court finds that the revocation was motivated by disagreement with coverage, that is the textbook definition of viewpoint discrimination. The First Amendment does not prevent the president from criticizing coverage. It does, however, prevent him from using state power to retaliate.
None of this means the press is above accountability. Reporters can be wrong, outlets can be biased, and viewers are free to change the channel. Presidents are free to say loudly that they think the reporting is garbage too, because they also have First Amendment protection. The White House is also free to reform the credentialing system itself on neutral grounds, by reducing numbers, enforcing conduct rules, or rotating press groups. Under current law, it is not free to look at three organizations, declare their coverage false, and remove them while leaving more favorable organizations in place.
Some of this week’s fallout illustrates why courts have been cautious here. After CNN was removed from the television pool rotation, the other networks declined to provide pool coverage in solidarity. The result is less independent video of the presidency for the public, not more. The White House filled the gap with its own 24/7 stream, “TrumpTV.” That may be effective communication, but it is not, by definition, independent journalism, and the public interest in having independent observers in the room is precisely why Sherrill defined limits in the first place.
President Trump said at the United Nations that he would “probably” comply if the court orders the passes restored. That language is dangerous, because it suggests that complying with a legal ruling is optional. It is also dangerous because the alternative is a precedent that will not stay with one party and will continue with presidents not being held accountable by anyone.
If a pass can be taken away because one president calls coverage fake, it can be taken away because the next president calls different coverage disinformation or a threat to democracy. The credential will become less a tool for coverage and more a reward for compliance. Whichever outlets publish the most favorable coverage will get the most access, and those that question policy will find themselves on the sidewalk far from the next press briefing.
Access to the White House will always be a privilege. The right to keep that privilege from being taken away as punishment for what you publish is what the First Amendment protects. That’s what freedom of the press means.
Replacing our sometimes radical, flawed, and often biased press with government-sponsored and tailored broadcasting will produce spoon-fed propaganda in no time at all. When Washington D.C. becomes the authority on what people hear in the news, Washington D.C. will start feeling more like Pyongyang.
Then, we’ll really have Fake News.
Collin Duprel is a guest columnist for the Rapid City Post. Opinions expressed may not necessarily represent the views of the Rapid City Post, its affiliates, or advertisers.
