Column: Do reporters have a right to be at press conferences?

-A A +A

It already seems like a long time ago, but it’s only been a month since the Trump administration’s long-simmering clash with CNN reached a new level, with the cancelation of reporter Jim Acosta’s “hard pass” that gave him access to the White House.
The pass was restored temporarily on the orders of a federal judge when CNN sued over the action, and then permanently when the White House press office deescalated the confrontation.
But it’s important to not let this incident go without examining the legal issues involved, since there’s the possibility that it might happen again, either at the White House or in county offices and city halls around the country.
CNN argued that the removal of Acosta’s regular access to the White House violated both the First Amendment rights to freedom of speech and the press and the Fifth Amendment’s right of due process, since the pass was rescinded without warning and without an opportunity for him to argue against the action.
But the judge based his ruling granting a preliminary injunction restoring Acosta’s pass only on the Fifth Amendment grounds, holding that a prior case established the principle that “the government must provide Mr. Acosta due process if it is to revoke his hard pass.”
“I want to make very clear a couple of things,” the judge said in his ruling from the bench. “I have not determined that the First Amendment was violated here.…”
That prior case was Sherrill v. Knight, a 1977 appeal of the Secret Service’s denial of a White House press pass to The Nation correspondent Robert Sherrill. The appeals court held that the Secret Service must establish formal criteria for grants or denials of White House press passes, give reasons for its decisions, and also establish an appeals process. The appeals court rooted its decision in both the First and Fifth amendments.
The Acosta and Sherrill cases are not the only ones in which public officials have attempted to limit reporters’ access to press rooms and press conferences.
In 2007, Carleton Finkbeiner, the mayor of Toledo, Ohio, refused to notify a local radio station about scheduled press conferences, while informing other news outlets. He also refused to allow a reporter from the station to attend the press conferences when he found out about them anyway. The mayor actually disbanded a press conference when the reporter was able to gain access, turning it into a “briefing,” which only selected reporters were permitted to attend.
A federal judge issued a temporary order requiring Finkbeiner to notify the reporter of press conferences, and allow him to attend. He then issued a permanent order,  and then awarded the reporter attorney’s fees. The mayor’s actions, the court held, likely violated the First Amendment.
A federal court in Hawaii held in 1974 that there were similar First Amendment concerns when the mayor of Honolulu excluded a specific newspaper reporter from news conferences.
But while courts have held that public officials excluding a particular reporter or news outlet from press conferences and other information-gathering processes that are generally open to other media raises First Amendment concerns, they have also held that public officials are free to refuse to answer questions from a particular person or outlet, as long as that person or outlet is not excluded from attending press events.
In a 2006 decision, a federal appeals court held that the governor of Maryland’s refusal to answer questions from reporters for the Baltimore Sun was not a First Amendment violation. Federal judges in Ohio reached similar conclusions in 2004 and 2005 when the mayors of Cleveland and Youngstown separately issued orders barring city employees from speaking to particular news outlets.
To summarize: there is a limited right of access by the media to government information. This includes a right to receive information that is generally made available to the public or to other media outlets. The government cannot deny a particular media publisher access to routine information, such as press releases, made available to the media because of the particular publisher’s viewpoint.
Nor can the government deprive a particular media outlet access to places where other press representatives routinely gather news. However, it is also clear that a particular media outlet has no right to interviews or comments that are not generally available to the public. Nor is it unconstitutional to deny a particular publisher preferential, non-routine information even if the reason for the denial is dissatisfaction with the publisher’s coverage.
While the storm over Jim Acosta’s access to the White House has passed, the many instances in the past when public officials have taken similar steps against specific reporters or media outlets indicate this issue will likely arise again.

Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication.