David Post

Does the recent “Gaggle Order” — the decision to ban the New York Times, CNN, Politico, Buzz Feed, and the Los Angeles Times reporters from Sean Spicer’s press “gaggle” — violate the First Amendment? Turns out that’s a close question.

It certainly looks, at first glance, like a prohibited content-based (or possibly even viewpoint-based) discrimination limiting the affected outlets’ ability to receive information, which would subject it to the highest form of First Amendment scrutiny and require some “compelling” justification to be constitutional. On the other hand, surely the First Amendment doesn’t prevent a president (or his press secretary) from, say, granting an exclusive interview (or providing a “leak”) to one (favored) reporter or paper or TV network and not another.