White House not obligated to press access but ban stands on shaky ground

Oct. 1 (UPI) -- President Donald Trump's press ban has challenged the more than century-long relationship between the media and the White House, a relationship that has often been tense.

The White House ban of CNN, MS NOW and Politico remains on hold on Thursday, blocked for 14 days by a court order. The White House has until Friday to file a response to a court filing by the media outlets requesting an injunction.

In the meantime, reporters from CNN, MS NOW and Politico have resumed their duties, mostly as normal. Over the weekend the Trump administration blocked CNN reporters from the press pool when the president was boarding Air Force One on his way to a college football game in Tennessee.

The White House alleges that reporting by the three news outlets presents a national security risk and the president has alleged that they have reported inaccurate or false information, using his oft-cited "fake news" label.

"President Trump is the most accessible president in history -- holding open press events, regular gaggles and interviews, taking questions nearly every day, and speaking directly to the American people through social media," an unnamed White House official told UPI.

"But if a reporter walks into an interview with their headline and narrative already decided, why do they need to be in the room? They can write their garbage from anywhere. Even after outlets were given access to the White House, they declined to cover various events proving this isn't about access. It's performative and dishonest."

The president has singled out the three major news outlets but others have stood in solidarity.

Last week, the TV press pool, including reporters from an array of outlets, did not cover events that were designated for pool coverage of the president in response to the press ban. This included Fox News, a network that has covered Trump more favorably throughout his political career.

"The bottom line is no news organization could operate under the threat of being physically expelled from the White House entirely because the president doesn't like what they wrote," Gabe Rottman, vice president of policy for the Reporters Committee for Freedom of the Press, told UPI. "There's some precedent also for this kind of collective action."

Rottman referred to an incident in 2009 when the Obama administration sought to exclude Fox News from participating in a pool interview with Kenneth Feinberg, the administration's special master for the Treasury's Troubled Asset Relief Program. Other networks refused to participate in the interview in solidarity with Fox News and the decision to exclude Fox News was changed.

Rottman said that while disputes between the White House and press are common, he is not aware of entire networks ever being blocked from their duties at the White House completely.

"Certainly not in a way where the president himself has said it's because we don't like what you report," Rottman said. "Every administration has tensions with the press which are good and healthy. An adversarial press is good for everybody. An adversarial and independent press makes government better."

In its justification for the ban, the White House issued a press release "White House Access Is a Privilege -- Not a Right." It lists instances of Democratic administrations restricting access for individual reporters and networks, including the Obama administration's tiff with Fox News.

However, the Obama administration and President Barack Obama continued to interact with Fox News throughout his two terms in the White House. Fox News' exclusion from the Feinberg interview was also not a broad or general ban on the network. There was no litigation over this incident.

"No president is required to host a hostile operation on the grounds," the White House press release reads. "Access has always been a privilege -- and President Trump is applying that rule."

It is true that the White House does not have an obligation to give the press access on its grounds, Katie Fallow, deputy litigation director at the Knight First Amendment Institute at Columbia University told UPI. Once it does open itself up to the press, as it did in 1896 when it designated space for journalists to work on the grounds, it cannot exclude them without due process or based on their viewpoints.

U.S. District Court Judge Timothy Kelly said in his ruling blocking the media ban last week that the lawsuit by news organizations is likely to succeed in showing that they were banned "without constitutionally adequate due process."

Fallow said the Supreme Court has established that the government may completely shut down a nonpublic forum, so long as it does not do so for retaliation or based on viewpoint.

"Now the question is if you try to shut down a forum, if your government tries to shut down a forum or limit it as a way to retaliate against or disfavor certain views, the courts may stop them from doing that because that goes against this central principle," Fallow said. "But they are not obligated under the First Amendment to keep it open forever."

As for the Trump administration's claim of a national security concern, the courts have already established a standard for demonstrating that the concern is legitimate. First Amendment rights may be restricted in cases when a legitimate national security risk presents a clear and present danger but this is rare.

"The court has cautioned that you can't just say 'national security.' You have to actually give a reason for why that particular person is a threat to national security," Fallow said. "In this current dispute with CNN, MS NOW and Politico, the White House has said 'We're justified in excluding or kicking out these outlets because they have reported on things that threaten our national security.' If you look at what they point to, it shows that this administration is trying to use the term national security when it really is referring to reporting that it does not like."

Fallow notes that even in cases where the press has published classified documents, such as the Pentagon Papers, those releases have been recognized as protected under the First Amendment.

"The courts have been extremely protective of First Amendment rights and the only time that they ever seem to give less than full-throated protection to speech is when it's a matter of national security," Fallow said.

The White House's comments to UPI note that reporters have shown they can report on the White House without access to its grounds. It is true that reporting can be done remotely in some cases, one of the most critical roles of the White House Press Corps is to pose questions directly to government officials, pushing for clarity, accountability and transparency, challenging them in the name of the public.

"It's important to focus on the fact that they aren't just observing or acting as stenographers for the president or his staff," Fallow said. "They are also asking questions. From my perspective, it's very important, not necessarily for each news outlet but for members of the public to know they have a press corps that is independent and not unduly biased by government interference."

The ability to report remotely also does not weaken reporters' ability to demonstrate harm in a legal setting.

"Mostly, my answer is no. You could say if you're still able to get some news reporting from the White House or -- journalists certainly have the ability to report on the Trump administration without having a White House press pass," Fallow said. "But in terms of First Amendment law, in general, the courts have rejected the claim that if the government says you can't publish this particular book and then in its defense says you could speak in another place -- usually courts reject that."

"Here, the balance is struck in favor of free speech," she continued.