Suppose you purchased a movie ticket using an annual movie pass you’ve used for years at your local theater. You are a loyal attendee of this theater and have seen dozens, possibly hundreds of movies over the years. Some of the movies you’ve seen have been really good, others have been just plain awful. After seeing the movie, you go home and blog about what you thought. You don’t pull any punches. Supposing it’s a good movie, you point out its successes and things you like about it. Additionally, you may point out some things that you didn’t like, such as plot holes, continuity issues, anachronisms, and other revealing mistakes. Supposing the movie is terrible, your blog post really digs into the movie’s mistakes and your issues with them. But then suppose the representatives of movie theater emails you and tells you they have suspended your movie pass and officially bar you completely from attending the theater. They have read one of your blog posts of a movie they showed recently, one you found to be terrible and were critical of in your post. Because of your criticisms, your movie pass has been revoked.
Seem ridiculous? In recent years, this same scenario has happened to several bona fide journalists in their struggle to retain White House press passes. Journalists who seek access to White House press briefings need to meet a certain criteria in order to be granted access. Additionally, these criteria prevent journalists from being barred from entering White House press briefings based on arbitrary or selective decisions. In short, journalists can’t be left out of White House press briefings just because they, or their written content, is not liked. Unfortunately past and current presidential administrations have unlawfully revoked journalists’ press credentials, and may even make it more difficult for journalists to gain access to the White House.
By looking at modern and decades-old cases, we can determine patterns that lead to unlawful revocation of press passes and why they pose a danger to both the First and Fifth Amendments.
Self-described “independent radical journalist” Robert Sherrill was unafraid to reputationally eviscerate powerful figures in the public arena. As a reporter, contributor, and author for multiple newspaper and magazine publications, Sherrill was a fierce contrarian who demonstrated a keen skill in revealing corporate and political greed. His efforts landed him a spot on Richard Nixon’s master list of political opponents. His lack of journalistic decorum and constant antagonism earned him the ire of politicians on both sides of the aisle. Upon his death in 2014, Ralph Nader told the Washington Post that “[Sherrill] took the shibboleths of liberalism and exposed them as what he felt they were. He took liberals and progressives down a peg or two, or 10 pegs or two.” While working as the White House Correspondent for The Nation in 1966, Sherrill was denied press credentials by the Secret Service.
When asked why his credentials were being revoked, the Secret Service refused to reply. When he applied for press credentials again in 1972, he was again denied. Feeling his First and Fifth Amendment rights were infringed upon, Sherrill tamed with the American Civil Liberties Union, thus starting a decade long legal battle. Today, Sherrill v. Knight sets an important precedent for White House Press pass revocation by dictating that the White House must have a compelling governmental interest in revoking White House press credentials, must notify the journalist and offer adequate time for a response, and must explain why the credentials have been revoked. In its ruling, the court stated,
“White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the First Amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons,”
This case bears a striking resemblance to the 2018 lawsuit, CNN v. Trump, a case which stemmed from CNN’s White House correspondent Jim Acosta having his press credentials revoked following an altercation with President Donald Trump during a White House press conference on November 7th, 2018. During the press conference, Jim Acosta, a journalist well-known journalist and contrarian questioned President Trump’s designation of the recent Central American migrant caravans as an “invasion”. While Acosta began asking follow up questions, Trump refused to answer and proceeded to move on to the next reporter. When Acosta persisted, Trump signaled for White House interns to take his microphone. After his mic was taken Trump berated Acosta and CNN, and following the press conference, a secret service agent confiscated his press pass.
CNN sued the White House on violations of both First and Fifth Amendments. However, Judge Timothy Kelly declined to rule on CNN’s 1st Amendment claim. However, Kelly ruled that Acosta was deprived of his Fifth Amendment rights of due process and ordered that Acosta’s pass be returned. Yet Trump’s slams on Acosta and CNN and its content did raise First Amendment concerns on whether Acosta’s pass was revoked on content-based criteria. Either way, both Acosta’s and Sherrill’s revocations were designated as “arbitrary and capricious”.
Other cases and incidents similar to Sherrill v. Knight and CNN v. Trump have surfaced since 2018, all involving the illegal revocation of White House press passes, and all for arbitrary and capricious reasons. Last year, the White House imposed stricter guidelines on obtaining press credentials. The Washington Post reported these new guidelines when it said,
“Journalists will qualify to renew their hard passes only if they have entered the White House grounds at least 50 percent of the time in the 180 days before renewal, effectively once every other day. If they fall short of this, their hard passes will not be renewed.”
Additionally, those journalists who do not have “hard passes”–a subscription based pass used by major networks, usually lasting several years–will have to apply for either daily, weekly, or six-month basis.
Ad hoc press pass revocations, stricter press pass guidelines, and threats made by the President to revoke more White House press passes raise concerns for media outlets and the general public. While the characters involved in press pass revocation may be contrary, cantankerous, and critical to the President and his policies, they play a necessary role in democracy and cannot be exempt from the marketplace of ideas because they aren’t liked. Senator John McCain, a politician known for his spats with the media, said that “if you want to preserve democracy as we know it, you have to have a free and many times adversarial press. And without it, I am afraid that we would lose so much of our individual liberties over time. That’s how dictators get started.”
America is a powerful and dramatic film, with some good parts and some bad parts. Every person, even those that may be considered hyper-critical deserve a seat in the theater without fear of being kicked out. White House correspondents from multitudinous news outlets get to sit front row to history, and have a constitutional right to document it. While administrations past and present have attempted to “abridge” this right, courts of law have continued to protect the peoples’ right to document about and disagree with their elected leaders. Whether you think the movie is good or bad, it’s still something we all get to participate in together.