Legal Experts Say Spicey’s Press Gaggle Ban May Be Unconstitutional

In recent weeks, Donald Trump–either himself or through his minions–has made some downright scary statements about the press. It started in late January, when brownshirt-in-chief Steve Bannon told the press that it should “keep its mouth shut” until it understood why Trump won. His information minister, Kellyanne Conway, openly called for the firing of journalists who criticized Trump during the campaign. His counterterrorism adviser, Sebastian Gorka, warned the media that any critical stories will be considered “fake news.” Trump himself got into the fray by declaring that the news media wasn’t his enemy–but the “enemy of the American people.”

With rhetoric like that, it was only a matter of time before the White House crossed the line into blatant disregard for the First Amendment. A number of legal experts think press secretary Sean Spicer crossed that line on Friday, when he booted a number of media organizations that had been critical of Trump from a daily press gaggle.

When Jameel Jaffer, head of the Knight First Amendment Institute at Columbia University, found out about this, his verdict was immediate–this wasn’t just dirty and nakedly aggressive, it was unconstitutional. Specifically, by locking out reporters “because you don’t like their reporting,” Spicer and the White House engaged in “viewpoint discrimination”–which has long been considered blatantly unconstitutional in a public setting.

Scott Gant of Boies Schiller & Flexner, a media law expert, was equally unsparing. If the White House’s decision was the product of “disagreement or displeasure with their coverage of the administration,” then, Gant believes, it “may well have crossed an important constitutional line.” First Amendment lawyer Floyd Abrams was even more blunt. He called Trump’s entire strategy of attacking the press “novel and dangerous.”

One of the few contrarian voices came from Michael McConnell of Stanford. He claimed that there was a difference between criticizing the press and attacking it, and suggested that the media answer Trump by “doing the best, most professional job it could do.” I’d really like to know how calling the press “the enemy of the American people” is merely a criticism.

The White House claims that there was enough seating to accommodate only news organizations who had previously been confirmed. But that claim is belied by a recording one of the reporters made of Spicer’s remarks. Spicer said that the White House intended to “aggressively push back” and do what it could to prevent “false narratives, false stories, inaccurate facts” from getting on the air or in print.

It’s partly for that reason that freelance photojournalist Jamie Nicholas sees a connection between how he had his NYPD press pass yanked and what happened on Friday. Nicholas filed a federal civil rights suit against the NYPD, and federal judge J. Paul Oetken issued a preliminary finding that the NYPD violated Nicholas’ First Amendment rights. This sentence from Oetken’s ruling should make the White House take notice.

“It has been held impermissible to exclude a single television news network from live coverage of mayoral candidates’ headquarters and to withhold White House press passes in a content-based or arbitrary fashion.”

Hmmm–Spicer’s move sounds pretty arbitrary to this layman’s eyes. Moreover, previous precedent doesn’t bode well for Trump. For example, in 1997, the D. C. Circuit told the Clinton White House that it couldn’t refuse a press pass to The Nation magazine just because it objected to what that outlet wrote. While there’s no indication that the excluded outlets plan to take Trump to court–yet–precedent would be heavily on their side if they did.

All things considered, if Trump does end up going to court over this issue, he’d better be prepared to pay out of his own pocket. After all, the courts have not been keen on attempts to restrict speech and press freedom.

(featured image courtesy DonkeyHotey, available under a Creative Commons BY-SA license)

Darrell is a 30-something graduate of the University of North Carolina who considers himself a journalist of the old school. An attempt to turn him into a member of the religious right in college only succeeded in turning him into the religious right's worst nightmare--a charismatic Christian who is an unapologetic liberal. His desire to stand up for those who have been scared into silence only increased when he survived an abusive three-year marriage. You may know him on Daily Kos as Christian Dem in NC. Follow him on Twitter @DarrellLucus or connect with him on Facebook. Click here to buy Darrell a Mello Yello.