Reporters received their latest tongue-lashing by White House Press Secretary Sean Spicer recently, after pressing him on the President's wiretapping claims.
The recent clash raises questions about whether Spicer might retaliate in the way he did last month, when he pointedly excluded the outlets most critical of the President from an informal "gaggle" of reporters in his office.
The exclusion of journalists offends First Amendment values that sanctify public information about government and enjoin the state from punishing reporters for what they print. But First Amendment law sometimes diverges from First Amendment values. From a legal standpoint, Spicer is probably in the clear — for now. That could change if he does not proceed carefully.
At first blush, it might seem that if the reporters excluded from the gaggle, or similar interviews in the future, their case would be a slam dunk. The facts clearly meet the three traditional elements of a First Amendment retaliation claim against a government official.
First, the journalists could convince a court of "causation," meaning that Spicer excluded them because of their reporting, and not for some other reason. Days before excluding reporters from the gaggle, President Trump had denounced the media as "the enemy of the American people."
In the gaggle itself, Spicer complained about a CNN story about the White House pressuring the FBI to disavow a story. As a law professor and former media lawyer, I could use these facts to prove a retaliatory motive with both hands tied behind my back.
As for the second element, the reporters could show that the Constitution protects the speech that triggered the retaliation. The First Amendment undoubtedly extends to news articles critical of the government.
Modern First Amendment doctrine grew largely judicial interpretations our country's repudiation of the Alien and Sedition Acts, which the John Adams administration used to punish political dissent.
Some First Amendment theories, like the one championed by the late federal judge Robert Bork, place political speech at the core of the First Amendment and relegate other communication (like art, humor, and TV commercials) to its periphery.
The journalists could meet the third and final element of a retaliation claim by showing that exclusion from press briefings would deter a person of "ordinary firmness" from further speech criticizing the President. A reporter's access is her lifeblood, and losing it can be fatal.
To be clear, I'm not predicting that the correspondents will back down, but that's because any journalist who chooses to report on the White House in the first place has a thicker-than-average skin. The legal test is "ordinary firmness."
On top of that, the reasons for the government's action are highly suspect. Generally speaking, the law divides motives for censorship into three categories—regulation that is content-neutral (don't blare your music on the train), regulation that is content-based but viewpoint-neutral (don't wave your campaign signs inside the polling place, regardless of which candidate you support), and regulation that is viewpoint-based (you can protest, just not about Democrats).
Spicer's exclusion of reporters based on critical stories might raise judicial eyebrows because it falls in the final category—classic viewpoint discrimination.
All of that said, most judges would throw out the case if the reporters sued Spicer. While the traditional retaliation analysis seems straightforward, establishing legal rules for press access to government officials is devilishly complicated. Consider exclusive interviews, which politicians give all the time.
The First Amendment does not require Spicer to put the names of every self-proclaimed "journalist" interested in an exclusive with President Trump into a hat and then go with whomever he pulls out first, whether it’s Sean Hannity, Dan Rather, or Ricky from Connecticut.
Favoritism becomes unavoidable because perfect objectivity cannot be achieved. Not only is some favoritism acceptable in deciding who gets an exclusive interview, but judges would be at a loss to distinguish between permissible and impermissible favoritism.
From a legal standpoint, a "gaggle" with Spicer may not be so different from an exclusive interview—some get access, others do not, and courts will not want to referee the process.
If the retaliation expands, however, the administration could find itself on shaky legal ground. Gaggles are one thing, but if Spicer banned disfavored journalists from briefings held in the White House press room with large groups of journalists, viewpoint-based exclusions from a forum traditionally open to a wide range of reporters could cross the legal line.
Spicer could also land in hot water if he did the same thing less overtly—that is, if he abolished traditional briefings and replaced them as a matter of course with gaggles with friendly journalists.
Spicer may not have violated the First Amendment in a legal sense, but excluding reporters rightly offends people who believe in a free press. The White House has sent a message to reporters: We'll hurt you if cross us.
David M. Shapiro is the director of appellate litigation for the Roderick and Solange MacArthur Justice Center and a clinical assistant professor of law at Pritzker Northwestern School of Law, Chicago. Previously, he defended reporters and media outlets as a First Amendment lawyer in private practice. He is a Public Voices Fellow.
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