During a testy press conference the day after the 2018 midterms, Jim Acosta of CNN asked President Donald Trump about a supposed migrant caravan heading to the United States, as alleged by Republicans and their media boosters in the weeks leading up to the elections. The migrant caravan never materialized, and reports about it quickly faded after the elections. Republicans lost decisively in the House’s midterm elections, though they retained control of the Senate.
The White House, however, said it was revoking Acosta’s press credentials and access to the White House briefing room. CNN sued over the retaliatory actions, claiming the efforts to revoke his access violated free speech and due process rights. CNN quickly prevailed, and the case was ultimately settled, with the White House restoring Acosta’s access.
While the attacks on otherwise free institutions might each look somewhat distinct, the institutions have largely taken two different paths in response. Some have fought back, while others have sought the route of appeasement.
Trump, now six weeks from another midterm election that sees his party’s control of both houses of Congress at risk, has picked another fight with the press. On Friday afternoon, he issued a post on his social media site stating that he was revoking the White House credentials of reporters from CNN, Politico and MS NOW, and on Saturday morning those outlets were denied access to the White House, their reporters’ credentials revoked. These news organizations have now filed a new lawsuit, asserting that the administration’s actions violate the First Amendment and the organizations’ due process rights. And their case is before the same judge who decided the Acosta case. It isn’t hard to see them securing a similar result as CNN and Acosta did in 2018.
But it’s not just the First Amendment’s press freedoms that the administration tramples on, often unsuccessfully.
In the second Trump term, the administration has echoed its punishment of journalists by attacking private law firms he doesn’t like, seeking to revoke their access to federal buildings and withhold their federal security clearances. The administration has also gone after institutions of higher education, in the name of fighting antisemitism, even as a whistleblower has alleged that these arguments were a pretext. The administration has even attempted to cancel contracts with the artificial intelligence company Anthropic for defying the Defense Department’s insistence that it be able to use the company’s technologies in weapons systems, without restriction — despite explicit agreements with Anthropic that the military would not do so.
And when it comes to the media more generally, the administration has applied pressure on broadcast companies, threatening their licenses for carrying content that does not align with the administration’s political goals, or even allowing guests on their programming who don’t. Of course, such efforts have failed miserably in the court of public opinion, like when the administration tried to get Jimmy Kimmel’s show canceled and the network that carried it resisted after public pressure. When that same show decided not to air an appearance by the Democratic candidate for the U.S. Senate in Texas, James Talarico, out of concern the Federal Communications Commission might retaliate, Kimmel’s interview of the candidate has now been viewed more than 12 million times since being released on YouTube.
While the attacks on otherwise free institutions might each look somewhat distinct, the institutions have largely taken two different paths in response. Some have fought back, while others have sought the route of appeasement.
More than a half-dozen law firms that weren’t even the subject of any direct assault by the administration nevertheless sought peace with Trump, in an effort to appease him before finding themselves the subject of his wrath. Brown and Columbia universities also capitulated to the administration’s demands regarding admission, disciplinary and hiring policies, while Yale University is reportedly in talks with the administration to cut a deal. Harvard University, to its credit, continues to fight the administration’s bullying. Consistent in nearly all of these situations: The institutions that fought back have tended to win, largely on First Amendment grounds. Many of these cases are still working their way through the courts, including the lawsuits filed by four private law firms and Harvard, though the administration has generally lost them in the lower courts. When they make it to the Supreme Court, and many of them are likely to do so, there’s a precedent from just two years ago that strongly suggests the administration is on thin ice legally.
In National Rifle Association v. Vullo, the Supreme Court weighed in on efforts by New York state officials seeking to punish business associates of the NRA, following the shooting at Marjory Stoneman Douglas High School in Parkland, Florida. The NRA had offered its members insurance policies that were underwritten by private companies. When the commissioner of New York’s Division of Financial Services — which regulates insurance companies — told those NRA affiliates that regulators might take action against them because of their relationships with the NRA, the NRA sued, saying that it was being singled out because of its views on gun rights.
In a unanimous decision written by Justice Sonia Sotomayor, one of the court’s liberal justices, the state government’s efforts to punish the NRA for its views was found unconstitutional as a type of viewpoint discrimination prohibited by the First Amendment.
There are also other cases that speak directly to the administration’s efforts to deny press access to the White House. In 1977 the federal appeals court in the District of Columbia issued a decision, Sherrill v. Knight, that established that members of the press had both First Amendment and due process rights regarding their access to the White House, which could not be denied based on the content of a reporter’s work.
This is the same court that is likely to hear any appeals in cases involving MS NOW, CNN and Politico — and that is currently hearing an appeal over the administration’s revocation of The Associated Press’ access for its refusal to call the Gulf of Mexico the Gulf of America. There, the appellate court has already ruled on a preliminary basis that the AP’s access cannot be restricted by the White House, except in a narrow set of physical locations involving the president, like Air Force One, the president’s private residence and the Oval Office itself.
But the current bans extend well beyond those locations.
The banned news outlets will have the wind of precedent at their backs, not just from decisions like Sherrill v. Knight, but also from the broader principles articulated by the Supreme Court in NRA v. Vullo.
These attacks on the press, like those on private law firms, universities, media companies and businesses, all suffer from the same legal infirmities. Should it find itself ruling on these assaults, even this Supreme Court would find it hard to ignore its own unanimous decision from just two years ago. That’s not to say that core constitutional rights will not have been diminished in the interim, even if they are restored months or perhaps years afterward.
Nevertheless, the administration is likely to find itself, once again, on the losing end in these cases, should they get that far; that is, if the administration doesn’t capitulate itself in the face of overwhelming legal precedent — and the public relations blowback from these actions that it has already produced.
The post Trump’s attacks on the First Amendment go well beyond just freedom of the press appeared first on MS NOW.
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