A new lawsuit against Trump invokes the First Amendment rights of the public, not just the press

Among the most enduring principles of First Amendment law is that freedom of the press and of speech are for everyone, not just credentialed journalists. This was addressed forcefully in Branzburg v. Hayes, a 1972 case in which Justice Byron White, writing for a 5-4 majority, rejected the notion that reporters have a constitutional right to protect their anonymous sources. The reason: Reporters do not have more First Amendment rights than ordinary citizens.

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

Now a lawsuit brought on behalf of six members of the public argues that White House restrictions against some news organizations violate not just the right of those organizations to report but also the public’s right to news and information.

The plaintiffs are being represented by the Knight First Amendment Institute at Columbia University. Katie Fallow, deputy director of litigation at the institute, and independent journalist Dan Froomkin, who’s one of the plaintiffs, were recent guests on “E&P Reports,” a podcast that’s part of the trade publication Editor & Publisher. The case is known as Roth v. Trump.

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Froomkin’s involvement is interesting. Though he’s a journalist, he doesn’t have a White House press pass, and he’s arguing that he depends on the news organizations that have been fighting bans. Those include The Associated Press, which has been dealing with restrictions since it refused to accede to Trump’s demand that it refer to the Gulf of Mexico as the “Gulf of America,” and CNN, MS NOW and Politico. The bans, which are currently being litigated, involve access to the White House and to Air Force One as well as to their right to participate in the rotating press pool that covers presidential events.

Not only does Froomkin, who writes the blog Press Watch, say that he depends on other news outlets, but he also observes that the atmosphere of intimidation that the White House is fostering denies him and the public of the independent monitoring that is needed in a democracy since journalists may avoid confrontation lest they run afoul of Trump’s gatekeepers. “Maybe don’t ask that question quite that way” is how Froomkin put it to “E&P Reports” host Mike Blinder.

Fallow says the various bans amount to “viewpoint discrimination,” which the courts have ruled consistently is unconstitutional. The new wrinkle, again, is that she’s not arguing on behalf of news outlets seeking to restore their access. Rather, she’s representing members of the public that depend on unfettered journalism.

The lawsuit itself says:

Defendants’ Policy of restricting the access of disfavored news organizations deprives the public of the reporting of those organizations, and it inevitably deprives them of the independent reporting of other news organizations as well, since every  journalist  who  reports  from  the  White  House  must  now  account  for  the  possibility  that  a critical or ill-advised word about the president may result in their access being summarily restricted or revoked….

All of the Plaintiffs rely on the White House press corps for  independent  reporting  about  the  president  and  his administration,  and  all  of  them  use  that reporting in a variety of ways in their scholarship, teaching, journalism, or advocacy.

In addition to Froomkin, the plaintiffs are Kenneth Roth, a human-rights advocate and legal scholar affiliated with Yale University; Beverly Gage, a Pulitzer Prize-winning historian at Yale; Peter Schmidt-Nowara, a civics and social-studies teacher in Brooklyn; Benjamin Wittes, editor-in-chief of Lawfare and a senior scholar at the Brookings Institution; and Ethan Young, a student at the University of Pennsylvania and editor-in-chief of The Daily Pennsylvanian.

The lawsuit strikes me as innovative and important, and I hope it advances. Like the journalists who’ve lent their names to the suit, I depend on independent reporting by others to do much of my work. I’m especially intrigued by the argument that even those news outlets that are not banned may water down some of their journalism so as not to run afoul of White House restrictions. As Chief Justice Charles Evans Hughes wrote in the 1931 case of Near v. Minnesota, “it would be but a step to a complete system of censorship.”

This lawsuit bears watching.