There he goes again: Why DeSantis’ Fox News stunt may be unconstitutional

Florida Gov. Ron DeSantis’ decision to give Fox News an exclusive as he signed his state’s new voter-suppression law was a sleazy piece of political gamesmanship. But was it unconstitutional? Maybe. A 1974 court ruling established the principle that government officials may not ban members of the press from events that are customarily open to the media. I wrote about it a year ago in a case involving — yes — DeSantis.

What makes this unusual is that the law envisions an official who singles out a specific reporter or news outlet for exclusion. DeSantis’ stunt involves the granting of special privileges to one news outlet. That’s generally allowed, as with agreeing to an interview. But a bill-signing is the sort of public event that is almost always open to the press, so it’s possible that DeSantis may have stepped in it again. Anyway, here’s my earlier item.

Florida governor’s ban on reporter violates the First Amendment

March 30, 2020

Florida Gov. Ron DeSantis’ decision to bar a reporter for the Miami Herald and the Tampa Bay Times from a news conference that was otherwise open to the press was a flat-out violation of the First Amendment.

Although the question of whether public officials can ban specific journalists from media events has never been taken up by the Supreme Court, a 1974 federal district court ruling is generally regarded as good law. I wrote about it a few years ago when a similar situation arose in New Hampshire.

Several decades ago, a similar situation unfolded in Hawaii, where an aggressive reporter for the Honolulu Star-Bulletin named Richard Borreca butted heads with the mayor, Frank Fasi. Fasi decided to ban Borreca from regularly scheduled news conferences at his City Hall office. The Star-Bulletin went to court. And in the 1974 case of Borreca v. Fasi, U.S. District Court Judge Samuel King ruled that Fasi had to open his news conferences to all reporters. King wrote:

A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective. They are subject to criticism, and the right of a governmental official to criticize is within First Amendment guarantees.

But when criticism transforms into an attempt to use the powers of governmental office to intimidate or to discipline the press or one of its members because of what appears in print, a compelling governmental interest that cannot be served by less restrictive means must be shown for such use to meet Constitutional standards. No compelling governmental interest has been shown or even claimed here.

Judge King made it clear that no member of the press was entitled to special privileges. If the mayor wanted to grant interviews to some reporters but not others, that was his prerogative. If he refused to answer a reporter’s questions, that was within his rights as well. But he could not discriminate against some members of the press when scheduling a formal, official event such as a news conference.