A White House Press Pass Has Nothing to do with the First Amendment
A federal judge today ruled the White House must temporarily re-instate the press pass of CNN reporter Jim Acosta's, who had been barred after an argument with Donald Trump in the press room. The judge ruled the White House had violated due process by banning Acosta.
CNN, however, had requested a ruling saying that Acosta more or less had a constitutional right to a press pass, and that the First Amendment guaranteed CNN and its reporters access to the White House press conference room.
Judge Timothy Kelly disagreed. According to the Washington Post:
In explaining his decision, Kelly said he agreed with the government’s argument that there was no First Amendment right to come onto the White House grounds. But, he said, once the White House opened up the grounds to reporters, the First Amendment applied.
On the due process issue, Kelly is mostly right on this one. But Kelly gets it wrong when he says that the First Amendment potentially applies wherever the White House has opened up access to reporters overall.
How Can Press Room Access be a "Right" If Only Allowed to a Privileged Few?
It's difficult to see, though, how something so limited and so unavailable to nearly everyone could be called a right. After all, not even all reporters can hope to secure a White House press pass. And non-reporters have even less chance of ever getting access. Access to White House media facilities and forums are a privilege reserved for a select few —and most of those few are wealthy operatives of extremely powerful media corporations.
A press pass is clearly not a right in the same sense as a trial by jury, a right to be secure in one's personal property, or a right to peaceably assemble. In theory at least, those rights apply to everyone unless voluntarily waived, or unless revoked through some sort of public due process.
Nor is it the case that just anyone who is recognized as a journalist gets access to the White House press room. The room, of course, is of a finite size — there are 49 seats — and access is limited. Only a select group of people is allowed in, and the credentialing process is controlled in part by the White House Correspondents' Association which hardly hands out credentials as if they were a human right.
Thus, if the First Amendment guarantees access to the White House press room, how is it that the overwhelming majority of journalists in the country can never hope to enjoy this right?
Moreover, government judges and officials have refused to rule with finality on the idea that anyone can be a journalist. This leaves open the opportunity for governments themselves to define who gets to be a journalist and who doesn't. Not surprisingly, US Senator Dianne Feinstein has suggested that only paid, professional journalists ought to be considered "real" journalists.
If access to the White House is to rise to the level of a right, though, it certainly can't be reliant on the whims of Senators and judges as to who gets to exercise that right. Nor could the White House Correspondents' Association, or any other group, be allowed to limit this right to a few influential reporters.
If CNN is going to insist in court that a press pass is a right, is the organization willing to take this idea to its logical conclusion? If that were the case, we'd be hearing about how CNN thinks the press room ought to be opened up to any small-time blogger who wants to ask the president a few questions.
The Press Room Exists for the Benefit of the President
But even if everyone who wanted it were somehow magically given space in the White House press room, it's hard to see how hobnobbing with the White House communications staff forms a pillar of a free press or free inquiry.
In other words, the very premise that a White House press pass is a critical component of a free press is questionable at best.
After all, the press room, the communications staff, and the entire White House media apparatus exists to make the president look good. It's not there to offer a frank exchange of information, or to divulge any information the White House doesn't want released.
To find that sort of information, one would have to engage in real investigative journalism in which journalists uncover facts that powerful government officials would rather not be uncovered. That, of course, is what Julian Assange has done. But you won't find many establishment American journalists defending him. No, in the minds of the Jim Acostas of the world, "journalism" consists of repeating the official talking points released at official press conferences.
And this is a lucky thing for presidents, many of whom have long understood that the purpose of White House communications is to manipulate the press.
In his book Who Speaks for the President, The White House Press Secretary from Cleveland to Clinton, W. Dale Nelson examines the history of press relations between the president since the late nineteenth century.
According to Nelson, press relations were considerably more informal in the nineteenth century, with presidents inviting reporters to have occasional conversations in various areas of the White House.These meetings eventually took on a more recognizable modern form with Theodore Roosevelt, who as a master propagandist, used reporters skillfully to his advantage. According to Nelson, "Roosevelt, who had seen reporters twice daily while in Albany, realized that the news columns of newspapers were what mattered, as much as the editorial columns, if not more."
Roosevelt thus introduced a custom in which reporters were welcome to see him while he was being shaved just before lunch. "The sessions," Nelson writes, which "came to be called presidential séances ... were limited to a favored few correspondents known to their colleagues as 'the fair-haired.'"
Overall, though, Roosevelt was happy to spread his own opinions around promiscuously, and as former Roosevelt aide Archie Butt remembered it: "Mr. Roosevelt understood the necessity of guiding the press to suit one's own ends..."
Roosevelt was slowly inventing the concept of the presidential press conference, and he understood that its purpose was to advance his own interests. After all, the very concept of the press conference has always been primarily founded on the idea of one-way communication. This is true for every organization that holds a press conference. Private companies, of course, only hold press conferences to get out the word of a new product or to do damage control. In any case, the purpose of these events are to manipulate and shape the news.
In fact, according to historian Daniel Boorstin, press conferences aren't really news events at all. They're a "pseudo-event" — a 20th-century invention — which is a manufactured event designed by a certain person or organization to create news that is favorable to those who plan them.
US presidents have been among the most effective pioneers behind the psuedo-event, although some have been better than others. According to Boorstin:
In recent years our successful politicians have been those most adept at using the press and other means to create pseudo-events. President Franklin Delano Roosevelt, whom Heywood Broun calls "the best newspaperman who has even been President of the United States," was the first modern master. While newspaper owners opposed him in the editorials few read, F.D.R. himself, with the collaboration of a friendly corps of Washington correspondents, was using front-page headlines to make news read by everybody. He was making "facts" — pseudo events — while editorial writers were simply expressing opinions. It is a familiar story how he employed the trial balloon, how he exploited the ethic of the off-the-record remarks, how he transformed the Presidential press conference from a boring ritual into a major national institution which no later president dared disrespect, and how he developed the fireside chat. Knowing that newspapermen lived on news, he helped them manufacture it. And he knew enough about news-making techniques to help shape their stories to his own purposes.
Needless to say, repeating what is said at these events was never "journalism." It was simply repeating what the president wanted repeating. Nor have reporters been much troubled by this fact. If anything, they've become even more reliant on it as news has become a 24-hour-per-day business. Thus, in recent decades, reporters have begun to rely more and more on interviews, press conferences and other types of pre-packaged "pseudo events" that could give media outlets something new to report on. And then, of course, the politicians themselves — and the public relations people who work for them — are more than happy to supply the media with "pre-cooked" news, press conferences, prepared statements, and opinions.
In other words, the presidential media event has always existed for the benefit of presidents. Reporters who fancy themselves as people getting a "scoop" by taking notes at a press conference greatly overvalue their own work. But it's not hard to see why they imagine the First Amendment describes a special "right" applicable only to them and their friends.