Barring Reporters From Briefings: Does It Cross a Legal Line?

“It has been held impermissible,” Federal Judge J. Paul Oetken wrote, “to exclude a single television news network from live coverage of mayoral candidates’ headquarters and to withhold White House press passes in a content-based or arbitrary fashion.”

Feb 24’s developments at the White House crossed that legal line, said Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University. “That was unconstitutional,” he said. “If you exclude reporters from briefings that they otherwise have a right to attend because you don’t like their reporting, then you have engaged in viewpoint discrimination.” Viewpoint discrimination by the government in a public forum is almost always unconstitutional. Public officials are not required to give reporters perfectly equal access, of course, and exclusive interviews and selective leaks are commonplace and lawful. But First Amendment experts said the allocation of government resources like press passes and access to public forums like news conferences must be based on neutral criteria rather than discrimination based on what the journalists had written.