The First Amendment and White House Press Access

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Welcome to FedSoc Forums, a Federalist Society podcast. I'm Elizabeth Slattery,
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Vice President of Practice Groups. Be sure to subscribe wherever
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you get your podcasts so you won't miss an episode.
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Now please enjoy today's conversation.
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Good afternoon, everyone, and welcome to FedSoc Forums. Thank you
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for joining us. Today, September 24th, 2026, we are thrilled
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to host what is a very timely conversation entitled The
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First Amendment and White House Press Access. My name is
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Emma Blake-Warren. I'm an Associate Director of Practice Groups at
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the Federalist Society. As always, please note that all expressions
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of opinion are those of the experts on today's call,
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as the Federalist Society takes no position on particular legal
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or public policy issues. In the interest of time, I
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will keep our introductions brief, but if you'd like to
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know any more about any of our panelists, you can
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access their full bios at fedsoc.org. Today, we are fortunate
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to have Michael Francisco and Robert Shibley with us as panelists.
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Michael is a partner at First and Fourteenth PLLC. He
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served as a law clerk to Supreme Court Justice Neil
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Gorsuch and to Judge Timothy Timkovich of the United States
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Court of Appeals for the Tenth Circuit. Robert is special
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counsel for campus advocacy at the Foundation for Individual Rights
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and Expression, or FIRE. Our moderator today is Casey Maddox.
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Casey is vice president for legal strategy at Stand Together.
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And one note for our audience, before we begin, if
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you have any questions throughout the webinar that pertain to
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the topic at hand, we ask that you please submit
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them through the Zoom Q & A function below, located
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at the bottom of your screen, not the chat, so
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that we'll be able to access them later in the program.
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And with that note, I will turn things over to
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our speakers to start the conversation. Casey, thank you so
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much for joining us and for moderating.
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Absolutely.
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Thank you, Emma, for kicking us off. Thank you to
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FedSoc and to our first of them at Pride Disc
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Group for hosting. So this is obviously a.
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Very, very timely conversation.
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It is entirely possible that the story will be changing
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while we are here. And as a matter of fact,
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one of the things that our audience may be most
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helpful in is apprising us of that fact. The rest
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of you have access to information. The rest of us
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don't because we're on this panel. So if you've got
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another screen open and you can tell us as things
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play out, that the landscape has shifted, we would probably
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welcome that information. So please do drop your comments, your
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questions into the Q & A. We will certainly try
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to get to as many as we can. But I
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wanted to start off with a question basically tied to
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the fact that we do have a decision last night.
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So let me back up a little bit in case
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you somehow missed it and just stumbled into this because
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you thought, oh, that sounds like an interesting general topic.
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I think September 18th, if I'm not mistaken, the president
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announced he would be banning, what was the term that
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he used? CNN, Politico, and MSNOW. from White House press access.
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And over the last six days, a lot has happened
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on that front.
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Last night, we.
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Had a TRO issued from Judge Kelly in D.C. that
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ordered the press credentials restored for those outlets. So first question,
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and I'll maybe come to you, Robert, and then Michael,
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for what the decision said. But we have a TRO.
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What did Judge Kelly decide? And where does that leave
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our conversation here?
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Yeah, sure.
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Thanks, Casey.
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So, Judge Kelly, this is about, my understanding, it's about 1.30
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in the morning when this came out. He must have
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been thrilled writing that late. Granted, the TRO that CNN, MSNOW,
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and Politico had asked for on the grounds of due
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process rather than straight First Amendment grounds. And he ordered
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the White House to restore the revoked hard passes. Those
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hard passes are the, you may have heard these discussed
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ever since the Jim Acosta stuff back in, I think, 2019.
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Hard passes are passes the reporters get that essentially allow
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them to come and go at will from parts of
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the White House. They had been revoked and they were
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ordered to be restored for 14 days while they do
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the briefing for the preliminary injunction.
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I believe the.
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Government had also asked that they stay.
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The TRO, in other words, make it so that they
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did not have to give the hard passes back right away.
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But the judge said no to that. And he said,
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we're going to do 14 days and the ban is
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over for now. This got adventurous this morning because Around
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6 a.m. is my understanding, and this is my understanding
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from X, etc., CNN showed up and their hard passes
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were not reactivated. And there was some drama over that.
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I think Politico also got told their hard passes were reactivated.
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But I think by noon or so, the access had
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been restored. Whether or not that was a bureaucratic snafu
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or it was 1.30 a.m. to 6 and nobody was awake, etc.
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This morning, it was like, oh, is this the constitutional crisis?
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But it looks like crisis averted for now.
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Who knows?
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It might be back on at 2.06 p.m.
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Michael, anything else from you on the decision last night?
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Well, the government had also requested if the judge was
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going to issue the temporary restraining order that he converted
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to a preliminary injunction, which would have allowed them to
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appeal it immediately to the D.C. Circuit, and he declined
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to do that. So that will mean that there'll be
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continued litigation, presumably in the district court for the 14
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days or so. And then if the opinion holds, there
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could be an appeal at that point, but not yet.
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Okay, so we don't actually have an answer on the
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First Amendment question. We have an answer on the due
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process question, which may sharpen the First Amendment question. If
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there is a process provided and then we've got, we
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end up with the same result, right? If they go
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through the process and then say, and we've now concluded
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that you pose the threat.
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That we said before.
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I can go into detail-wise.
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Just what they found is that the case that the
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court keeps coming back to and has been coming back
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to in these press access cases, this case from the 1970s,
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Cheryl is the name of the case. I forget that
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the other part is, but in the Cheryl case.
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Go ahead.
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Yeah, I think Cheryl B. Knight, I think. Cheryl B. Knight,
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that's right.
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And in the case, That case, we'll probably get into
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that a little bit more in detail later, but what
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that case came down to was actually a very similar
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finding to what was here, which was this person had
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their press pass, died, withdrawn, etc., was not told why,
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and the court, the D.C. court in that case, said
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that you couldn't do, there basically, there had to be
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some level of due process involved that happened and that
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there needed to be the chance to both know what
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led to the suspension and a chance to challenge it
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before that suspension or denial actually took effect. And that
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needs to happen before the action actually takes place. And that's,
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I think, Judge Kelly, he cited that and made very
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similar arguments here, not the Trump administration or made some effort.
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They sent letters after they announced the ban. They sent
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letters to the three news outlets, supposedly explaining what it
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was that they did that caused them to be banned,
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lose their press access. They accused them of violations of decorum, etc.
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It was a mix, if you look through these letters.
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of objections to the tone of their coverage or the
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nature of their coverage being negative, but also complaints about
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areas where the White House argued that it could compromise
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national security. They had reported on things that are classified
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or could be classified. So they mixed security and viewpoint-based
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reasons there, and the judge called that out. Actually, Judge
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Kelly called that out in his TRO and said it's actually,
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since they're mixed, it's not actually clear whether it's really
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about the security or about the objections to the viewpoint
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of the different news organizations.
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Okay, so once we get over to the First Amendment
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questions in this case, which I think are almost certainly
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coming soon, I think one of the big questions for folks,
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the way this keeps getting discussed is as a press case,
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is the Is this a press case or is this
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a free speech case? Is the press clause of the
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First Amendment doing any actual work here? Or is this
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basically just a First Amendment case that involves, a free
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speech case that involves the press?
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So Michael, Francisco, or Michael.
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Or Robert, either one of you, if you want to
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jump in on that question, how do we understand the
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First Amendment claim here?
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Well, I know the webinar is sponsored by the Free
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Speech Group, but it probably should be sponsored by the
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Due Process Group because A shocking number of these high-profile
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fights between the press and the executive branch all end
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up getting decided on procedural due process issues, not the
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First Amendment. It's probably because the due process standards are
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exceedingly malleable and judges can do whatever they want. It's
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much easier to write those opinions for the clerks. In
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terms of your press clause question, Casey, I think it's
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doing a little bit of work because let's... What is
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this case about?
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Are they.
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restricting CNN or Politico from speaking? No, no, they could
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speak all they want. They can publish whatever they want
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critical of the president. What this is really about is
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whether CNN has a cool background for their little video
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feed talking about the press, because they get to be
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in front of the White House for their video feed.
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It's a little bit about whether they can be in
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the room to ask questions, which of course the president
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and the press secretary don't ever have to call them
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or answer their questions. But that all sounds like news gathering,
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at least the answering the questions. the questions part. I
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find their interest of fancy backdrops to be a little
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bit lacking, certainly as an irreparable injury for a TRO.
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So in that sense, this is a case about their
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ability to engage in news gathering. I don't think it
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is truly a case about restricting their ability to speak.
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This case gets a lot of attention because the media
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loves itself. No surprise there, but most of the things
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they're talking about covering are live broadcast these days on
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the internet anyway. So it really is not as if
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lacking a hard pass somehow makes it a mystery to
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CNN what's going on or Politico.
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Robert, your thoughts?
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Yeah, I guess I have a, I'm less sanguine about
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the idea of telling these groups that they don't actually
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need to be there in person in order to break
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the kind of news that they want to break. I
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do think that we all know it'd be better to
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do this webinar in person if we could do that.
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There is definitely a, there's a difference in being, I think,
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one of the cases that the judge put it in
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the room where it happens. I think that was Judge
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Rao in the Budovich case. And there is some importance
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to that. I don't think that the principles should change
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just because it is so easy for everything to be
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live streamed now. So I think there is definitely an
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impairment being put on CNN, Politico, MSNOW compared to other
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outlets by being totally banned. Every single employee of theirs
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banned from all of the White House grounds.
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OK, one of the questions that I've Actually, we even
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have a question in the chat that I think from
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Andrew Yurko that I think hints in this direction. But
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one of the common arguments here, and we've already maybe
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even heard it a little bit already amongst us, is
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that there's no right to press access. Press doesn't have
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a right to a press credential. You don't have a
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right to be able to go to the White House
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and certainly be on Air Force One or interview the president, right? Instead,
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it's a privilege to be able to have that sort
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of access. How does that affect the First Amendment analysis here? Robert,
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I'll come back to you on that one first.
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Yeah.
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Okay.
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So in terms of the First Amendment analysis, I think
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where the rubber is most likely to hit the road
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is in the area of retaliation, is the idea that
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I think in most of these cases, everybody has agreed
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that the president, the executive branch doesn't actually have to
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allow anybody to on the anybody on the White House
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grounds or in these these areas that are not necessarily
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private or excuse me, not necessarily public areas. And there's
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actually a discussion about what parts of the White House
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are a non-public forum versus not even a forum at all.
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And given that form analysis really governs how we understand
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the way the First Amendment applies, those findings are pretty
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important as to how they do that. But either way,
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like the principle that while the government might be able
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to do something for arbitrary or no reason or for
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a reason that you don't like versus an impermissible reason
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has been established for a really long time. And it
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goes back to, as we were saying, doing the research
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for this, this case Spicer versus Randall back in 1958,
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this was about California having a, they were offering tax
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exemptions on property tax, but they said you had to
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sign their loyalty oath. This was obviously during the Red
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Scare era and said that, well, okay, we, they don't have,
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then the court found that they don't have to give
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these exemptions to property tax, but if they're going to,
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They can't deny them based on something that has to
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do with disfavoring expression. And I think that's where things
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are going to come down here, especially because President Trump
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has made it so easy by saying over and over again,
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he's the main witness. about how this is about their
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viewpoint and his dislike of their editorial viewpoint. So I
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think that makes it a really easy thing for courts
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to rest on is saying, hey, a lot of times
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we don't, you might not have the evidence to say
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this is an impermissible reason behind this retaliation, that it
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was viewpoint discrimination. But here you have the president saying, yeah,
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I don't like your viewpoint and that's why I'm doing this.
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Michael, do you have a Since on that broader question,
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and I guess some degree on this kind of specific
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question about the president's comments and how that impacts the
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kind of viewpoint-based... The.
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President's comments, as has happened before, make the job of
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his attorneys a little bit more complicated to defend the action.
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But look, is the retaliation here? I don't know. Retaliation
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sometimes is a bit of a cop-out when you don't
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actually have a real First Amendment claim. You just say, oh, look,
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they don't like me. This is retaliation. The AP case, actually,
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it's ironic. Robert mentioned Judge Rao's quote that they want
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to be in the room where it's happening because the
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AP lost that case. They're still losing that case. So
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that case is about press access to the parts of
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the White House, Oval Office, Air Force One, Mar-a-Lago, and
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the like. And the president there has a different position.
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He has kicked out the AP from that smaller set
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of journalists, sometimes known as the press pool. And he
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doesn't have any qualms about it. It's pure viewpoint discrimination.
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It's because they won't recognize the Gulf of America in
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their standards. And I bet most people here didn't realize
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the APs lost that case. In the district court, they
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got an injunction that's been frozen by the D.C. Circuit.
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The D.C. Circuit declined to lift that injunction and lost
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in the current time being because the case was argued
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on the merits to a panel with Judge Rao and
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Katzis last November. or December rather, and they have not
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issued an opinion. So we know the president can engage
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a viewpoint discrimination, at least in the initial opinion from
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Judge Rao and Katzis, as to certain parts of the
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White House. So is it retaliation here? I think obviously
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the president's comments are being construed as retaliation.
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And the president's.
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Lawyers explain that what seems like retaliation to you is
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us enforcing standards of decorum and professionalism. And they say
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that these, in the letters they've Their stated reasons are
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that these outlets trafficked in verifiable falsehoods about national security
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and published sensitive classified information. So if you want to
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say that there's retaliation, the government says it doesn't matter
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because we have valid reasons other than the president's statements
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that you're pointing to revoke the passes, and that's all
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we need to do.
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On AP versus Bidowich, Robert, your reaction to it, and
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I guess kind of the further or The distinctions between
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this case and that case, is it basically just that case,
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at least as it has developed, is now more specific
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to specific areas? And this is a, in total, you
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lose your credentials. Is that a fair understanding of kind
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of the difference between the two at this point? I
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think that's part of it. The reason the AP versus
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Budovich case, at least to me, has... so much valence
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here is my understanding.
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Is that while the government is quote unquote winning in
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that the AP has been allowed to be booted out
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of the press pool, et cetera, the original restriction on
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them was not just the press pool, but it was
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partially about the access to the briefing room, et cetera.
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It was similar to this in that It seemed like
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it was started out as the idea that we're going
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to keep them out of every part of this.
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And the D.C.
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Circuit, and we'll see what the merits come out, said
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that for most things, you don't have to invite the AP.
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You can basically use your bully pulpit.
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You can use.
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this sort of reward of giving access to the president
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in the Oval Office on Air Force One, et cetera.
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But you can't do it in the, I think they
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said the East Room, maybe the Brady Briefing Room. I'm
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not sure if those are the same thing, et cetera.
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But they got into the nature of the individual different
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parts of the White House And what the nature of
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those are as a forum, whether they are a non-public forum,
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which more or less they let the D.C. district courts
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determination that the briefing room or East Room was a
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non-public forum and therefore you couldn't do viewpoint discrimination. They
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allowed that to stand. So they'd be still allowed to
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go to the briefings, et cetera. But they can be
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kept out of the rest of the less public. public
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areas of the White House. And one of the things
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I think they'll be determining is what is the nature
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of the forum? There was even discussion there, and maybe
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this is a little bit off topic over it, whether
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the forum is something that has to be an actual
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geographic location, a particular room of the White House or,
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you know, Air Force One itself, versus I think the
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AP had been arguing that the forum was arguably the
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press pool itself. And it was wherever the press pool is,
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there is the forum. And the two-judge majority there, they
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acued to the more geographic location. But I guess we'll
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see how that comes out. I do think this is
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one of those areas where it would be nice if
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the courts were operating a little more quickly. And that
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would certainly benefit, I think, everybody in the government to
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be actually paying more attention to where things are on
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these areas, because a lot of the past cases, as
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you read them, They keep coming back, as Michael said,
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to this idea that we didn't actually have any clearly
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established rules. You didn't know it's not fair to punish
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somebody for something. They didn't know what the extremity of
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it would be. They didn't actually know the outer boundaries
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of it. It's very vague and undefined what decorum might mean, obviously,
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for a reporter, sometimes being rude and asking rude questions.
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We would all think that's part of what a reporter
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is supposed to do. But there probably is some point
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at which decorum would be, you could argue that there's
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decorum stuff has gone too far. So it would be,
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it would have been, I think, wise for the administration
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if they actually wanted to have decorum rules.
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Here to actually promulgate those rules.
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And make it clear what they were, but it seems
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like that's almost never actually been done and it hadn't
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been done in the seventies and it still doesn't really
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seem like it's been done now.
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Yeah.
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Okay.
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So we got to get to this question because to me,
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this is I'm this is such a wonderful FedSoc nerd
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question that I'm excited to, to ask both of you.
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The first amendment begins. Congress shall make no law.
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Is there a federal law enacted by Congress that is
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actually involved here? And if not, why is, why does
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the first amendment apply? When you have incorporation to the states,
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you're at least incorporating the first amendment usually to, to
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state laws or state actions taken pursuant to state laws.
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I guess sort of hiding, hiding behind this is if
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it says Congress shall make no law, are there certain
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things that the president just does that by its terms,
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the first amendment doesn't apply to on its face? Michael,
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I'll come to you first, and then come to Robert after.
400
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I'm pretty sure, Casey, you forgot about Article 3, Section
401
00:21:11.500 --> 00:21:15.359
47 that says anything President Trump does or says is
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00:21:15.400 --> 00:21:18.990
subject to immediate challenge, whether it be a press statement
403
00:21:19.130 --> 00:21:21.750
or an executive order that directs an agency to consider
404
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taking an action. I don't recall where the courts decided
405
00:21:26.390 --> 00:21:29.650
to apply the First Amendment extended from Congress to the
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executive branches. off the top of my head, Casey. I'm
407
00:21:32.660 --> 00:21:35.500
sure we made that misstep in the 60s or before.
408
00:21:35.960 --> 00:21:39.000
I would say, to generalize it a little bit, part
409
00:21:39.019 --> 00:21:41.559
of the question here is really, does the First Amendment
410
00:21:41.579 --> 00:21:45.180
apply to this part of the White House and this activity?
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The AP case, who knows exactly how it will ultimately
412
00:21:48.579 --> 00:21:53.769
end up, but we're talking about the courts micromanaging the
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00:21:53.849 --> 00:21:56.410
White House. I don't think that should be lost here.
414
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The case is not just that you can't have a
415
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discriminatory reason to exclude the Sherrill case that we're talking about.
416
00:22:05.000 --> 00:22:07.619
That case just makes up from whole cloth, the standard
417
00:22:07.640 --> 00:22:10.839
that says the president has to have a quote, compelling
418
00:22:11.420 --> 00:22:15.619
reason in quote, to take away somebody's hard pass and
419
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the hard pass.
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I mean, of.
421
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All the journalists in the world, we're talking about a
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thousand people that have this so-called hard pass that have
423
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the privilege of getting to go on the white house.
424
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And by the way, if it's a privilege and not
425
00:22:26.880 --> 00:22:29.109
a right, then the president's going to win this case ultimately.
426
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There has to be a constitutional right here for any
427
00:22:31.599 --> 00:22:33.779
of these cases to make sense. And the main right
428
00:22:33.799 --> 00:22:36.640
they press is the property right in this pass. The
429
00:22:36.660 --> 00:22:39.920
press fool, that's the AP case about the Oval Office.
430
00:22:40.180 --> 00:22:42.680
Now that's an even smaller subset. That's 20 or so
431
00:22:42.740 --> 00:22:47.180
people that the president selects. And I hear Robert saying, OK, well,
432
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that makes sense. The president can decide who he wants
433
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in that pool of 20. First Amendment doesn't apply there.
434
00:22:52.640 --> 00:22:56.309
Viewpoint discrimination, I guess, is OK, because that's a small
435
00:22:56.349 --> 00:22:59.859
number of people. And it's the Oval Office. That's different.
436
00:23:00.359 --> 00:23:02.619
I just don't think it's different. I think the president
437
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controls the White House. He controls the access to it.
438
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And I think there's a good case to be made
439
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that the form analysis and certainly this made up standard
440
00:23:10.809 --> 00:23:14.549
of a compelling reason shouldn't apply to the president for
441
00:23:14.609 --> 00:23:17.890
this particular activity. I don't think it's the First Amendment
442
00:23:17.930 --> 00:23:20.410
does not apply is my take on what the first
443
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principles would say here. There's a lot of case law
444
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that's going to have to get adjusted for that to
445
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be the case. But this is a conflict.
446
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Of the branches.
447
00:23:28.240 --> 00:23:30.190
It is striking when you read these cases that you
448
00:23:30.230 --> 00:23:35.289
have courts micromanaging who the president should let in his
449
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own building. I think it's a little bit crazy that
450
00:23:38.509 --> 00:23:41.190
we're at the place now where courts feel free to
451
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micromanage to this level.
452
00:23:42.910 --> 00:23:44.680
Well, you know, thank you, Robin, coming to you here.
453
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But I think that to reframe just a little bit,
454
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I think very often we're dealing with executive branch action, right?
455
00:23:52.339 --> 00:23:55.740
But it's executive branch action that's at least pursuant to
456
00:23:56.730 --> 00:24:01.549
Congress telling the agency, here is.
457
00:24:00.670 --> 00:24:02.529
A program for you to run, right?
458
00:24:02.930 --> 00:24:06.789
So at least the authority behind whatever the agency is
459
00:24:06.849 --> 00:24:11.059
doing flows from Congress, right? So in that sense, the
460
00:24:11.099 --> 00:24:15.000
First Amendment applying in that context still makes sense. Are
461
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we a step beyond that here when you get to the,
462
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take the, maybe the hardest possible question in this context,
463
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the president just decides I will not sit for an
464
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interview with anyone from X network because I do not
465
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agree with, because they don't like me and I don't
466
00:24:32.829 --> 00:24:33.230
like them.
467
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Right.
468
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I don't like their viewpoint.
469
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There's, there may be no money involved other than whatever
470
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Congress appropriates to keep the lights on in the white
471
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house or something.
472
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Right.
473
00:24:42.839 --> 00:24:44.440
So if there really.
474
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Is no Congress connection to the story at all, is
475
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that a situation where the first amendment just by its
476
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terms doesn't apply?
477
00:24:53.799 --> 00:24:55.420
Well, It's an interesting question.
478
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First, I want to say that I was I actually
479
00:24:58.200 --> 00:25:03.000
think there is probably some I am not OK with
480
00:25:03.460 --> 00:25:07.549
necessarily just waving off the concerns about somebody being booted
481
00:25:07.609 --> 00:25:10.230
out of the press pool for their viewpoint. I think
482
00:25:10.309 --> 00:25:13.430
courts have allowed that to happen. And I do think
483
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there's maybe some prudential reasons for it. But I don't
484
00:25:16.390 --> 00:25:19.869
know that it is different in kind kicking somebody out
485
00:25:19.930 --> 00:25:23.529
of the smaller press pool. than it is kicking them
486
00:25:23.730 --> 00:25:27.880
out of the larger brief room, etc. I suspect there's
487
00:25:27.890 --> 00:25:30.640
a lot of sort of results-based jurisprudence that's happening there
488
00:25:30.720 --> 00:25:33.779
because for the very reason that I do agree that
489
00:25:33.980 --> 00:25:36.900
I don't see, I have a hard time arguing, I
490
00:25:36.920 --> 00:25:38.900
would have a hard time arguing, and I think courts
491
00:25:38.920 --> 00:25:41.680
would have a very hard time finding that the president
492
00:25:41.740 --> 00:25:44.759
had to sit down for an interview. So you've got
493
00:25:44.799 --> 00:25:47.630
this this sort of issue as we often have in
494
00:25:47.650 --> 00:25:51.970
these free speech areas where there is an extreme that
495
00:25:52.170 --> 00:25:55.940
nobody really wants to say. It doesn't make sense. President
496
00:25:55.960 --> 00:25:57.720
Trump has to talk to Jim Acosta, has to have
497
00:25:57.759 --> 00:25:59.559
us sit down for a one-on-one interview, or they have
498
00:25:59.579 --> 00:26:02.019
to roll the dice and everything has to be a lottery,
499
00:26:02.059 --> 00:26:04.700
whatever it would take to make it fair. Nobody wants
500
00:26:04.720 --> 00:26:07.769
to push it that far. And I don't think the
501
00:26:07.809 --> 00:26:11.630
Constitution requires that. But it's one of those issues where,
502
00:26:11.750 --> 00:26:14.700
you know, just because they're There's not clear when something
503
00:26:14.740 --> 00:26:17.950
is red versus something is orange doesn't mean that there
504
00:26:18.009 --> 00:26:21.569
isn't a red and an orange that exists out there.
505
00:26:21.730 --> 00:26:21.970
Right.
506
00:26:22.049 --> 00:26:23.470
And this is one of those where do you draw
507
00:26:23.490 --> 00:26:27.109
the line of law school questions where what is the
508
00:26:27.150 --> 00:26:29.730
kind of form that's being created here? I just I'm
509
00:26:29.779 --> 00:26:33.819
not comfortable more generally, particularly given the size of the
510
00:26:34.000 --> 00:26:37.440
administrative state that we have, I think. And like Michael,
511
00:26:37.480 --> 00:26:39.920
I don't remember exactly what the case is where we
512
00:26:39.960 --> 00:26:44.400
decided that the First Amendment applied purely to executive branch issues.
513
00:26:44.700 --> 00:26:46.440
But I would want to say that the White House
514
00:26:46.559 --> 00:26:49.569
is also not owned by President Trump. It is funded
515
00:26:49.660 --> 00:26:53.569
by appropriations from Congress. It's not as though there is
516
00:26:53.710 --> 00:26:58.009
no nexus at all. Congress is that was our primary
517
00:26:58.109 --> 00:27:00.990
branch is the one that's most representative for us. And
518
00:27:01.049 --> 00:27:03.410
they're given that power of the purse. And so I
519
00:27:03.450 --> 00:27:06.109
think they always have some that the If it just
520
00:27:06.150 --> 00:27:08.690
comes down to Congress shall make no law, I do
521
00:27:08.710 --> 00:27:10.650
spend a lot of time, because I deal with students
522
00:27:10.710 --> 00:27:12.910
all the time, explaining that, okay, when the First Amendment
523
00:27:12.930 --> 00:27:16.049
says Congress shall make no law, it also means that
524
00:27:16.089 --> 00:27:19.029
the University of North Carolina shall make no rule. You
525
00:27:19.069 --> 00:27:21.549
just need to be aware of that. And I allied
526
00:27:21.670 --> 00:27:23.829
over all that because it is complicated how that all
527
00:27:23.869 --> 00:27:26.680
became put together. But I do think that there is,
528
00:27:26.869 --> 00:27:28.890
we do need to understand that, like, all of this
529
00:27:28.990 --> 00:27:35.460
is stemming from the power, the inherent power of the legislature.
530
00:27:35.900 --> 00:27:38.700
to make those appropriations and establish that there is a
531
00:27:38.740 --> 00:27:41.059
White House at all, for instance.
532
00:27:42.519 --> 00:27:42.779
Okay.
533
00:27:42.819 --> 00:27:45.119
Please do drop your questions into the Q & A.
534
00:27:45.160 --> 00:27:48.400
We will get to those very soon. Let's entertain the hypothetical.
535
00:27:48.539 --> 00:27:51.599
Let's assume that what the president is saying is what
536
00:27:51.619 --> 00:27:55.130
he initially said is true. This is fake news. These
537
00:27:55.230 --> 00:27:59.329
are intentionally negative stories that are being put out by
538
00:27:59.369 --> 00:28:02.789
these outlets. Would that itself be a valid basis?
539
00:28:03.410 --> 00:28:03.930
First Amendment.
540
00:28:04.299 --> 00:28:07.559
Wise, let's assume the first movement of lies and the
541
00:28:07.599 --> 00:28:10.720
president's assertion that this is a free speech, this is
542
00:28:10.740 --> 00:28:11.339
fake news, right?
543
00:28:11.359 --> 00:28:13.799
This is a pre-press, this is fake news. Would that
544
00:28:14.559 --> 00:28:15.079
pass muster?
545
00:28:15.099 --> 00:28:19.000
I mean, the first amendment purist in me says, no,
546
00:28:19.200 --> 00:28:21.240
it doesn't matter what they'd say. And I was actually
547
00:28:21.279 --> 00:28:24.640
thinking about this a little bit before the broadcast here.
548
00:28:24.900 --> 00:28:29.140
And is there some area where reporting could be so
549
00:28:29.279 --> 00:28:34.329
shoddy or so deliberately dishonest that you can make the
550
00:28:34.430 --> 00:28:37.450
argument that it violates some sort of professionalism or decorum
551
00:28:37.490 --> 00:28:40.029
that they could take official notice of it and it
552
00:28:40.069 --> 00:28:43.029
would not necessarily be viewpoint discrimination and i may get
553
00:28:43.069 --> 00:28:45.289
kicked out of the first amendment lawyers club for this
554
00:28:45.329 --> 00:28:47.390
i think there probably is i was thinking if there
555
00:28:47.410 --> 00:28:50.049
was somebody with a hard pass or with access to
556
00:28:50.089 --> 00:28:53.150
the briefing room it was reporting that i was there
557
00:28:53.230 --> 00:28:56.509
and i saw the president having sex with underage space
558
00:28:56.589 --> 00:29:00.480
aliens And doing all of these awful things is really extreme.
559
00:29:00.559 --> 00:29:05.279
I can imagine there being outlandish enough, just completely dishonest
560
00:29:05.359 --> 00:29:10.349
reports that a court would say, no, okay, at a
561
00:29:10.369 --> 00:29:12.630
certain point, you pushed it a little bit too far.
562
00:29:12.950 --> 00:29:14.589
I wouldn't want to go to, let's put it this way.
563
00:29:14.609 --> 00:29:19.099
I wouldn't want to be representing that reporter in court.
564
00:29:19.200 --> 00:29:22.259
That said, you are, that's just the very beginning of
565
00:29:22.279 --> 00:29:25.500
the slippery slope that goes down to what is, we
566
00:29:25.539 --> 00:29:29.059
should acknowledge that, The media does not get everything right.
567
00:29:29.319 --> 00:29:31.279
And they do have an agenda often.
568
00:29:31.579 --> 00:29:34.099
And it's clear to anybody who's watching it that often
569
00:29:34.140 --> 00:29:36.309
they are out to get somebody. Now, we think that's
570
00:29:36.650 --> 00:29:39.549
at least I think that's a legitimate.
571
00:29:39.009 --> 00:29:39.930
Area for the media.
572
00:29:40.569 --> 00:29:41.109
To be doing.
573
00:29:41.130 --> 00:29:45.799
We want them, agenda-based journalism is journalism nonetheless. But I
574
00:29:45.839 --> 00:29:49.099
do think it's, there probably is some point, I think
575
00:29:49.140 --> 00:29:53.259
it's hard to imagine that being likely to come to fruition,
576
00:29:53.299 --> 00:29:55.579
although who knows what may happen next year.
577
00:29:55.599 --> 00:29:59.240
Okay, so we have a question about, Michael, did you
578
00:29:59.259 --> 00:30:01.180
have a response to that?
579
00:30:02.920 --> 00:30:04.960
I would just say that there's a lot of work
580
00:30:05.000 --> 00:30:08.599
being done by the pretext and the distrust of the
581
00:30:08.660 --> 00:30:12.390
president's motives here. If you just consider, again, the letters
582
00:30:12.430 --> 00:30:14.829
that they gave notice to these three groups when they
583
00:30:15.490 --> 00:30:18.789
had their access revoked, it talks about publishing sensitive or
584
00:30:18.829 --> 00:30:24.180
classified information. That's literally a crime the First Amendment doesn't support,
585
00:30:24.420 --> 00:30:29.299
and reporters aren't special. If they're violating... the laws that
586
00:30:29.319 --> 00:30:33.369
restrict access to national security sensitive information, I think it's
587
00:30:33.380 --> 00:30:36.509
an absolutely legitimate basis to take away any sort of
588
00:30:36.569 --> 00:30:40.210
government access or pass on that basis. Now, obviously, the
589
00:30:40.250 --> 00:30:44.130
courts have found that there were other reasons or motivations
590
00:30:44.279 --> 00:30:46.599
that are in the mix. But in terms of the
591
00:30:46.640 --> 00:30:49.180
stated motivations, yeah, there are limits to what you can
592
00:30:49.220 --> 00:30:52.240
do in terms of free speech and be protected for
593
00:30:52.279 --> 00:30:52.640
doing it.
594
00:30:53.519 --> 00:30:55.539
The letters, so I looked at the letters before this,
595
00:30:55.940 --> 00:30:59.599
and they do come up with a number of arguably
596
00:30:59.640 --> 00:31:03.940
national security-related justifications, but some of them are quite old.
597
00:31:03.980 --> 00:31:06.440
There's ones that go back to 2025, which sort of
598
00:31:06.460 --> 00:31:08.160
brings up the question of why now?
599
00:31:08.220 --> 00:31:10.650
What was it that happened just now to make this happen?
600
00:31:10.670 --> 00:31:13.539
And then you've got, again, this problem where they're mixing it,
601
00:31:13.630 --> 00:31:17.750
the letter to Politico has a complaint that this month
602
00:31:17.890 --> 00:31:21.470
they relied on unnamed sources to paint the Republican midterm
603
00:31:21.490 --> 00:31:25.150
convention in Dallas as a disaster when media reporting showed
604
00:31:25.190 --> 00:31:28.119
that the convention had over 100 million livestream views. I
605
00:31:28.160 --> 00:31:30.740
don't see any way to understand that other than as
606
00:31:30.960 --> 00:31:35.519
a simple... disagreement, like a difference of opinion over what
607
00:31:35.579 --> 00:31:38.690
constitutes a disaster, etc. That doesn't strike me as being
608
00:31:39.069 --> 00:31:43.089
something that would be unprofessional and certainly not risky in
609
00:31:43.150 --> 00:31:44.130
a recognizable way.
610
00:31:44.170 --> 00:31:45.809
But there it is in the letter to Politico.
611
00:31:46.609 --> 00:31:48.609
Yeah, the way that Judge Kelly talks about it, too,
612
00:31:48.690 --> 00:31:52.640
is you had the letters would basically say you've compromised
613
00:31:52.680 --> 00:31:59.079
national security. And also engaged in dishonest reporting, right?
614
00:31:59.529 --> 00:32:01.250
And so you're left with, which is it, right?
615
00:32:01.269 --> 00:32:05.009
If it's just the national security basis and there is
616
00:32:05.089 --> 00:32:08.410
a road for that, when you have two answers and
617
00:32:08.450 --> 00:32:10.799
it's a choose your own adventure, which of the two
618
00:32:10.819 --> 00:32:12.619
you get to use is when you have like the
619
00:32:12.650 --> 00:32:15.380
list and it's, there are all kinds of bases for
620
00:32:15.420 --> 00:32:18.200
which we can deny your permit. And then, and some
621
00:32:18.220 --> 00:32:20.839
of them are very explicit, but then at the end it's,
622
00:32:21.279 --> 00:32:22.440
or anything else we choose.
623
00:32:22.519 --> 00:32:22.740
Okay.
624
00:32:22.799 --> 00:32:24.839
I just negated everything else you just said, right? We
625
00:32:24.880 --> 00:32:26.920
don't have. So I think that's probably part of it.
626
00:32:26.920 --> 00:32:27.559
The due process.
627
00:32:28.200 --> 00:32:32.279
Decision may help us here because to the extent that
628
00:32:32.299 --> 00:32:34.619
they are given notice, have to go through a process,
629
00:32:34.960 --> 00:32:37.559
and then we end up with the same conclusion, then
630
00:32:37.579 --> 00:32:41.140
it'll probably be more on paper that this is the basis,
631
00:32:41.359 --> 00:32:44.259
this is the rationale, and then we can evaluate it
632
00:32:44.299 --> 00:32:46.619
from there. Clay asked a question, and I think we
633
00:32:46.680 --> 00:32:49.500
have answered this question a couple of times, but I
634
00:32:49.539 --> 00:32:50.680
wanted to point it out because I.
635
00:32:50.640 --> 00:32:53.059
Think it continues to come back up, right?
636
00:32:53.420 --> 00:32:56.200
I think when we talked about this before, this privilege
637
00:32:56.240 --> 00:33:00.640
versus a right, Clay Halverson is describing it as dancing
638
00:33:00.660 --> 00:33:04.410
around the core issue. Do you have a right for
639
00:33:04.450 --> 00:33:08.230
the press to be present? I think the answer to that, Robert,
640
00:33:08.289 --> 00:33:10.130
at least from your perspective, and Michael may have a
641
00:33:10.170 --> 00:33:13.349
different perspective on that, but I think the answer from
642
00:33:13.710 --> 00:33:18.480
Robert was basically that you could shut down, the president
643
00:33:18.500 --> 00:33:22.259
could decide, I don't want anyone on.
644
00:33:22.259 --> 00:33:27.059
White House grounds at all other than my family, period.
645
00:33:27.440 --> 00:33:27.960
End of sentence.
646
00:33:28.380 --> 00:33:28.559
Right.
647
00:33:28.960 --> 00:33:29.599
He could do that.
648
00:33:29.619 --> 00:33:33.980
He could exclude everybody from the White House altogether. The
649
00:33:34.029 --> 00:33:34.650
question is, all.
650
00:33:34.609 --> 00:33:38.029
Right, well, when you when you are making.
651
00:33:37.750 --> 00:33:41.609
A decision based on presumptively for this purpose, the viewpoint
652
00:33:41.849 --> 00:33:44.130
of the people involved, can you do that?
653
00:33:44.269 --> 00:33:44.450
Right.
654
00:33:44.869 --> 00:33:48.190
Is that sort of a fair understanding of your perspective?
655
00:33:48.589 --> 00:33:50.380
Robert and Michael, I'll let you respond to that as well.
656
00:33:51.039 --> 00:33:51.799
Yeah, I think so.
657
00:33:51.900 --> 00:33:54.660
And we see that sort of strain going through first
658
00:33:54.779 --> 00:33:57.690
amendment law. That's in Sherrill, but I'm thinking of a
659
00:33:57.930 --> 00:34:00.650
case much more recent. It's similar in some ways, the
660
00:34:00.769 --> 00:34:04.720
Mattal versus Tam case. which was about if the government
661
00:34:04.829 --> 00:34:08.730
is going to give you a trademark, do they have
662
00:34:08.769 --> 00:34:11.849
the discretion to say, well, they're not going to give
663
00:34:11.869 --> 00:34:14.239
you a trademark for disparaging marks?
664
00:34:14.260 --> 00:34:15.980
This was about a band.
665
00:34:16.039 --> 00:34:17.940
It was a group of Asian Americans who had a
666
00:34:17.960 --> 00:34:20.739
band called The Slants, but they couldn't get a federal
667
00:34:20.800 --> 00:34:24.409
trademark on it because- The trademark office decided that was
668
00:34:24.550 --> 00:34:29.730
a disparaging mark, and the Supreme Court ultimately overturned that
669
00:34:29.789 --> 00:34:33.530
restriction on disparaging marks. And I think the general principle
670
00:34:33.570 --> 00:34:36.610
there is if the government is going to give something
671
00:34:37.030 --> 00:34:41.030
to a class more generally or make something available to
672
00:34:41.070 --> 00:34:43.309
a class, whether you want to call it a right, privilege,
673
00:34:43.349 --> 00:34:46.590
something else, the important thing is they're not allowed to
674
00:34:46.610 --> 00:34:51.710
then discriminate based on somebody's viewpoint.
675
00:34:52.320 --> 00:34:55.389
In order to take back that grant from them.
676
00:34:55.469 --> 00:34:59.630
It's this idea that you've got an interest in being
677
00:34:59.710 --> 00:35:03.070
treated equally to other people who are similarly situated. And
678
00:35:03.110 --> 00:35:05.030
I think it is important to try to hold the
679
00:35:05.070 --> 00:35:07.869
line on that. If not, I think there's all kinds,
680
00:35:07.909 --> 00:35:11.630
the amount of mischief that government at all levels could
681
00:35:11.670 --> 00:35:14.679
get up to is just absolutely astronomical.
682
00:35:16.559 --> 00:35:18.179
Yeah, you got the, we do have this kind of
683
00:35:18.280 --> 00:35:21.099
series of this kind of right versus a privilege debate.
684
00:35:21.579 --> 00:35:25.059
conversation throughout the law, you've got decisions. All of the
685
00:35:25.099 --> 00:35:29.500
public employee cases, for example, you have virtually no right
686
00:35:29.599 --> 00:35:32.179
to a government job of any kind, but you can't
687
00:35:32.199 --> 00:35:35.360
be denied those jobs in many cases based on your
688
00:35:35.400 --> 00:35:39.119
views or exercise another constitutional and protected right in many cases.
689
00:35:39.820 --> 00:35:42.260
You've even got cases, I think, from the 90s where
690
00:35:42.619 --> 00:35:44.420
people had contracts with city government.
691
00:35:44.599 --> 00:35:46.780
Yeah, I was going to bring that up. And they
692
00:35:46.820 --> 00:35:49.780
had written a letter to the editor, I think.
693
00:35:49.840 --> 00:35:51.989
And yeah, you get some of these cases where, You
694
00:35:52.030 --> 00:35:55.269
have absolutely no right to a contract with city government,
695
00:35:55.309 --> 00:35:57.769
but if city government cancels the contract because they saw
696
00:35:57.809 --> 00:35:59.590
an op-ed you wrote and they don't like the op-ed,
697
00:36:00.170 --> 00:36:02.559
that's where the first vote potentially comes in, right? So
698
00:36:02.599 --> 00:36:04.920
it's the exact same kind, in my mind anyway, the
699
00:36:04.960 --> 00:36:09.619
same kind of conflict. I think it's important because it's
700
00:36:09.659 --> 00:36:13.059
a totally different conversation if you're talking about the press
701
00:36:13.099 --> 00:36:15.429
in a public park, right, where they have a right
702
00:36:15.489 --> 00:36:17.829
to be there just period, and the president says, I
703
00:36:17.869 --> 00:36:20.809
ban you from public parks. That's a whole separate thing.
704
00:36:21.400 --> 00:36:23.139
But even if you don't have a right to be somewhere,
705
00:36:23.199 --> 00:36:26.820
if it's for an express, the question, is there an
706
00:36:26.980 --> 00:36:29.980
unconstitutional basis for the decision that.
707
00:36:29.880 --> 00:36:31.599
You could otherwise make for valid reasons?
708
00:36:32.380 --> 00:36:33.780
Michael, I'm going to come back to you on this
709
00:36:33.860 --> 00:36:36.139
because a lot of people have pointed out that you
710
00:36:36.199 --> 00:36:39.969
have both the Obama and Biden administrations that have made
711
00:36:40.289 --> 00:36:44.110
all kinds or made other decisions about restricting press access,
712
00:36:44.269 --> 00:36:47.929
either temporarily or not, for Fox News and other outlets
713
00:36:48.369 --> 00:36:51.760
over time. and have basically compared these and said, look,
714
00:36:52.260 --> 00:36:56.260
this is, there's a, it's, if nothing else, it's a,
715
00:36:56.269 --> 00:36:58.170
if it's good for the goose, good for the gander
716
00:36:58.630 --> 00:37:01.829
kind of situation. But if you had thoughts on sort
717
00:37:01.869 --> 00:37:04.090
of what kind of led us to this moment in
718
00:37:04.150 --> 00:37:08.820
terms of from the Trump administration's perspective anyway, the decisions
719
00:37:08.860 --> 00:37:11.239
made by prior administrations.
720
00:37:10.880 --> 00:37:11.599
In the same thing.
721
00:37:13.260 --> 00:37:16.679
Yeah, the factual circumstances varied quite a bit. I can't
722
00:37:16.760 --> 00:37:19.400
say When I never had the opportunity to be a
723
00:37:19.440 --> 00:37:23.800
First Amendment press right practitioner, despite being at the first
724
00:37:23.840 --> 00:37:26.800
and 14th law firm, I typically have other First Amendment cases.
725
00:37:27.000 --> 00:37:30.469
But I was surprised reading up on how varied the
726
00:37:30.489 --> 00:37:33.889
circumstances are. And some of the press lose these cases
727
00:37:33.969 --> 00:37:37.269
about their right to access or the restrictions. Some of
728
00:37:37.289 --> 00:37:41.429
them prevail. An interesting change came from the AP case
729
00:37:41.449 --> 00:37:44.960
that we haven't talked about, which is I learned that
730
00:37:45.059 --> 00:37:48.599
typically the White House Correspondents Association actually picked who was
731
00:37:48.639 --> 00:37:50.760
going to be in the traveling press pool, the subset
732
00:37:50.780 --> 00:37:54.139
of 20 people. The Trump administration changed that, and now
733
00:37:54.179 --> 00:37:57.409
it is the administration directly picking who gets to be
734
00:37:57.449 --> 00:37:59.489
in that group of 20. And that's actually what allowed
735
00:37:59.530 --> 00:38:03.650
them to kick out the Associated Press for the Gulf
736
00:38:03.690 --> 00:38:07.489
of America issue. And that decision to change who decides
737
00:38:07.690 --> 00:38:10.210
to be in the role of 20 has not really
738
00:38:10.250 --> 00:38:13.670
been challenge that I think will probably be continued in
739
00:38:13.710 --> 00:38:18.659
the future in terms of different administrations control the access
740
00:38:19.579 --> 00:38:21.900
in different ways is the point behind that. And even
741
00:38:21.920 --> 00:38:27.460
that 1,000 hard press passes, ironically, the White House declines
742
00:38:27.519 --> 00:38:30.079
to have any mechanism to determine whether you're part of
743
00:38:30.099 --> 00:38:33.400
a legitimate bona fide media operation. And so they have
744
00:38:33.519 --> 00:38:37.599
outsourced that, get this, to the Supreme Court Press Gallery
745
00:38:37.659 --> 00:38:40.619
and the House and Senate Press Gallery. And so if
746
00:38:40.739 --> 00:38:42.860
one of the other branches of government has decided you
747
00:38:42.900 --> 00:38:46.039
work for a legitimate media outfit, then you could apply
748
00:38:46.059 --> 00:38:50.139
to get one of these 100,000 or so hard press passes.
749
00:38:50.199 --> 00:38:53.300
So I think there's going to continue to be conflict
750
00:38:53.340 --> 00:38:56.510
between the press and the president. That goes back to
751
00:38:56.550 --> 00:38:59.170
the very beginning of the Republic when we had good
752
00:38:59.250 --> 00:39:03.409
old newspapers named after political parties. But I think the courts...
753
00:39:03.769 --> 00:39:07.690
are going to continue to struggle to micromanage these processes.
754
00:39:08.690 --> 00:39:10.530
Yeah, and here is a very interesting question about the
755
00:39:10.570 --> 00:39:14.750
White House Correspondents Association. And because I think for a
756
00:39:14.750 --> 00:39:17.789
lot of folks who probably practice in the separation of
757
00:39:17.829 --> 00:39:21.909
powers world, that feels private, non-delegation-y.
758
00:39:22.309 --> 00:39:22.789
If we're going to.
759
00:39:22.769 --> 00:39:26.929
Apply everything the same from the White House itself that
760
00:39:26.969 --> 00:39:29.809
we would apply in the executive branch more generally, the
761
00:39:30.039 --> 00:39:33.940
idea that you've got this really important thing like access
762
00:39:34.340 --> 00:39:37.079
to be able to follow the president, be part of
763
00:39:37.860 --> 00:39:41.619
that group, and that government is saying, well, we defer
764
00:39:41.679 --> 00:39:44.639
to a private outfit to make the determinations about who's
765
00:39:44.679 --> 00:39:47.360
qualified and who's not. I think that's no longer the
766
00:39:47.380 --> 00:39:50.340
rule during the Trump administration, but I think does seem
767
00:39:50.380 --> 00:39:53.989
to raise some questions there about, you know, could very
768
00:39:54.030 --> 00:39:58.550
well just be viewpoint discrimination, but delegated to a private
769
00:39:58.590 --> 00:40:01.750
outfit to do the viewpoint discrimination, right? And so that
770
00:40:01.789 --> 00:40:05.969
would be sort of its own separate problem. Scott Blackburn asked, basically,
771
00:40:05.989 --> 00:40:09.860
if you have a retaliation kind of framework for this,
772
00:40:10.099 --> 00:40:14.300
if the concern is that the decision is based on
773
00:40:14.539 --> 00:40:18.889
a retaliation framework, does that lead you to a worse outcome?
774
00:40:20.090 --> 00:40:23.590
place for press protection in the long term, because, and
775
00:40:23.630 --> 00:40:25.400
maybe you can kind of tie this together, there are
776
00:40:25.440 --> 00:40:27.679
probably a number of ways that the president could have
777
00:40:27.739 --> 00:40:32.380
achieved what he was trying to achieve here without being
778
00:40:32.440 --> 00:40:34.440
quite so direct about it. And then it's a lot
779
00:40:34.460 --> 00:40:38.469
more difficult to be able to demonstrate the retaliation, right?
780
00:40:38.489 --> 00:40:39.719
If you assume there is a person who has a
781
00:40:39.760 --> 00:40:43.030
problem here, the president has been very helpful in saying,
782
00:40:43.530 --> 00:40:46.210
I don't want them here because of their reporting. Are
783
00:40:46.250 --> 00:40:48.949
we actually in a better place if it's a lot
784
00:40:48.989 --> 00:40:51.320
less clear and obvious what's going on.
785
00:40:51.880 --> 00:40:53.039
Robert, your thoughts on that?
786
00:40:53.420 --> 00:40:56.150
I think it is a legitimate concern and that it's
787
00:40:56.639 --> 00:40:58.400
part of the reason that when you get in a
788
00:40:58.500 --> 00:41:01.199
sort of arms race like this, that it's easy for
789
00:41:01.599 --> 00:41:06.119
everybody to lose. I think people who think that the
790
00:41:06.179 --> 00:41:10.460
press has been or previous presidents, they'll say, why is
791
00:41:10.480 --> 00:41:12.989
it not OK when Trump does this, but it's OK
792
00:41:13.030 --> 00:41:15.349
when other presidents do this in more clever ways? I
793
00:41:15.389 --> 00:41:17.889
think the first answer is it actually isn't OK. We
794
00:41:17.929 --> 00:41:20.949
should be we should be willing to say no. That
795
00:41:20.989 --> 00:41:23.550
was also wrong for them trying to be locking out
796
00:41:23.590 --> 00:41:26.000
Fox News, but if they are getting more clever about it,
797
00:41:26.000 --> 00:41:30.119
I think this does encourage that sort of cleverness. That said,
798
00:41:30.139 --> 00:41:36.110
I think it's probably asking too much of the courts
799
00:41:36.210 --> 00:41:39.829
and the law and just generally people feeling like there's
800
00:41:39.889 --> 00:41:43.710
credibility in the law meaning what it says if you
801
00:41:43.769 --> 00:41:47.110
have the evidence out there that is so hard to
802
00:41:47.190 --> 00:41:49.829
ignore i'm doing this because i do not like your
803
00:41:49.889 --> 00:41:53.409
viewpoint it's hard to say even if on a cosmic
804
00:41:53.429 --> 00:41:57.130
level you can imagine that openness being better if we
805
00:41:57.190 --> 00:42:00.550
are going to say that's the wrong way to be
806
00:42:00.570 --> 00:42:03.840
i think it It makes sense that courts are going
807
00:42:03.860 --> 00:42:06.500
to take notice of the evidence when it's there. And
808
00:42:06.559 --> 00:42:09.159
I do think, to be clear, I think that previous
809
00:42:09.179 --> 00:42:12.780
administrations have been much more, quote unquote, clever about the
810
00:42:12.820 --> 00:42:15.019
way that they have controlled access to the press.
811
00:42:15.539 --> 00:42:17.659
And that just, I think, President Trump.
812
00:42:17.469 --> 00:42:21.170
Is unusual in that he does not seem to be
813
00:42:21.250 --> 00:42:23.869
inclined that way and likes to just come out and
814
00:42:24.110 --> 00:42:26.789
say what other people might be doing a little bit
815
00:42:26.849 --> 00:42:29.869
more surreptitiously. Could it lead us to a point where, yeah,
816
00:42:29.889 --> 00:42:32.639
there's no press access? Yeah, but you've also got the
817
00:42:32.679 --> 00:42:35.539
checks and balances of the fact that if there's any
818
00:42:35.780 --> 00:42:39.050
president who has a more of a symbiotic relationship with
819
00:42:39.070 --> 00:42:41.969
the press, in some ways, it's President Trump. He interacts
820
00:42:41.989 --> 00:42:45.170
with the press far more than President Biden, for instance.
821
00:42:45.329 --> 00:42:47.969
And you get the sense sometimes that they love having
822
00:42:48.010 --> 00:42:50.190
each other to hammer on. And the idea that any
823
00:42:50.250 --> 00:42:52.429
president would say, I'm not going to be, I'm going
824
00:42:52.449 --> 00:42:54.659
to eliminate everyone from the White House and therefore be
825
00:42:54.679 --> 00:42:58.039
in the news less, even though I would as a conservative,
826
00:42:58.059 --> 00:43:00.039
would kind of like to hear about the president less.
827
00:43:00.099 --> 00:43:03.630
I think that's probably unlikely to happen anytime in the
828
00:43:03.670 --> 00:43:04.570
foreseeable future.
829
00:43:05.110 --> 00:43:07.070
Yeah, he's not exactly Calvin Coolidge, right?
830
00:43:07.110 --> 00:43:09.670
You can't imagine President Trump just sliding off into the
831
00:43:09.690 --> 00:43:12.010
background and excluding the press.
832
00:43:11.969 --> 00:43:14.300
And quietly doing things in the White House.
833
00:43:14.320 --> 00:43:16.059
There is a relationship there.
834
00:43:16.559 --> 00:43:19.440
Okay, we've got maybe time for, again, drop your questions.
835
00:43:19.500 --> 00:43:21.760
If you have them, I'll ask one more and then
836
00:43:22.000 --> 00:43:24.059
see if we have others that have popped up. But
837
00:43:24.550 --> 00:43:27.989
Donald Kroll, I think, asks, is judicial enforceability one way
838
00:43:28.030 --> 00:43:31.010
to think about drawing the line here? It certainly seems
839
00:43:31.090 --> 00:43:34.380
like a lot of the, you could have, again, viewpoint
840
00:43:34.400 --> 00:43:38.599
discrimination in context where, but the court just can't fix that.
841
00:43:38.699 --> 00:43:41.139
A court can give you back a press badge and
842
00:43:41.199 --> 00:43:43.880
a spot in a room full of people. It can't,
843
00:43:44.760 --> 00:43:47.340
very unlikely that a court is going to grant the
844
00:43:47.380 --> 00:43:50.869
TRO ordering the president or the White House press secretary
845
00:43:50.909 --> 00:43:52.809
to call on you or to sit for an interview
846
00:43:53.050 --> 00:43:54.530
or to give you a spot on Air Force One.
847
00:43:55.010 --> 00:43:58.070
Maybe the same viewpoint discrimination question, but it may be
848
00:43:58.690 --> 00:44:01.570
just a question of judicial authority.
849
00:44:01.989 --> 00:44:03.980
And so how do you think about that, Michael?
850
00:44:05.739 --> 00:44:07.980
Trump administration tried to frame this as a bit of
851
00:44:08.019 --> 00:44:11.579
a political question, I think, getting at the same issue. I've,
852
00:44:11.800 --> 00:44:14.639
in this presentation, called it micromanaging the White House, but
853
00:44:14.739 --> 00:44:16.440
they're all talking about the same thing. The courts won't
854
00:44:16.559 --> 00:44:19.889
enjoin the president directly. but that's a super easy solution.
855
00:44:19.909 --> 00:44:22.969
You just name Susie Wiles, problem solved. Everybody does the
856
00:44:23.050 --> 00:44:26.849
case the same way. I do think this case is,
857
00:44:26.989 --> 00:44:30.780
for First Amendment purposes, is just different because it's at
858
00:44:30.820 --> 00:44:33.780
the White House, and maybe some purists will say that
859
00:44:34.239 --> 00:44:36.400
this is an unfair way to draw the line. But look,
860
00:44:37.000 --> 00:44:39.039
I don't hear anybody out there saying the First Amendment
861
00:44:39.079 --> 00:44:41.590
compels the president to sit down with a particular reporter.
862
00:44:41.619 --> 00:44:44.530
So we all have that to start from. You get
863
00:44:44.550 --> 00:44:46.650
to the press pool of 20, the next biggest set,
864
00:44:47.289 --> 00:44:49.280
the The courts at least temporarily have sided with the
865
00:44:49.300 --> 00:44:52.139
president on that. That's a small set. More people seem
866
00:44:52.159 --> 00:44:54.179
to be willing to say, yeah, the president can pick
867
00:44:54.679 --> 00:44:57.920
who he wants there. Both sides cited Theodore Roosevelt. It
868
00:44:57.940 --> 00:45:03.260
was a WWTD situation. And because Theodore Roosevelt initiated the
869
00:45:03.300 --> 00:45:05.349
press for him in the White House, but he also
870
00:45:05.389 --> 00:45:08.449
initiated the practice of having his handpicked favorite press come
871
00:45:08.469 --> 00:45:10.809
during his shaving hour in the middle of the day.
872
00:45:10.829 --> 00:45:13.010
And this is recounted in the government brief in this case.
873
00:45:13.070 --> 00:45:16.090
It's a colorful story. And so he was using the
874
00:45:16.110 --> 00:45:19.980
power to pick people. press based on viewpoint to his advantage.
875
00:45:20.659 --> 00:45:22.849
And I just think the cases that involve the White
876
00:45:22.889 --> 00:45:25.210
House have to be different. This is not Trinity Lutheran.
877
00:45:25.230 --> 00:45:28.130
It's not a generally available government benefit that you have
878
00:45:28.150 --> 00:45:32.449
a right to. And I don't think that John Adams
879
00:45:32.550 --> 00:45:35.840
or James Madison are turning to their grave because Politico
880
00:45:35.880 --> 00:45:38.920
doesn't have one of the 100 hard passes to have
881
00:45:38.960 --> 00:45:42.440
a better background for their reporting. I just, I don't
882
00:45:42.500 --> 00:45:45.460
think it is the end of the First Amendment to
883
00:45:45.519 --> 00:45:46.440
have what's happened here.
884
00:45:47.929 --> 00:45:50.590
Robert, I'll give you a last word. Looks like we
885
00:45:51.010 --> 00:45:51.750
are out of questions.
886
00:45:52.809 --> 00:45:55.889
Yeah, I think that there is some extent to which
887
00:45:55.949 --> 00:46:01.269
this is a sort of made-for-media contretemps, and it presents
888
00:46:01.690 --> 00:46:05.670
a lot of this ability to caricature both sides. Is
889
00:46:05.690 --> 00:46:07.110
it going to be the end of the world? Will
890
00:46:07.130 --> 00:46:10.699
we not have any media coverage If the White House
891
00:46:10.760 --> 00:46:14.619
is entirely closed to reporters, if the worst happens in
892
00:46:14.659 --> 00:46:17.519
that sense of openness. And I think the answer is no. Obviously,
893
00:46:17.559 --> 00:46:20.440
we'll still have plenty of media coverage, etc. But will
894
00:46:20.480 --> 00:46:23.000
something be lost if we do that? And is something
895
00:46:23.059 --> 00:46:26.980
lost when we decrease the sort of overall openness and
896
00:46:27.019 --> 00:46:31.130
transparency in the media? access to these areas, I think yes.
897
00:46:31.210 --> 00:46:34.030
And I think that we ought to be very cautious
898
00:46:34.309 --> 00:46:38.389
about the power we want to give federal officials to
899
00:46:38.489 --> 00:46:42.559
make those decisions based solely on the viewpoint that they
900
00:46:42.579 --> 00:46:42.980
don't like.
901
00:46:44.960 --> 00:46:45.239
All right.
902
00:46:45.280 --> 00:46:47.820
Well, thank you very much, Emma. The floor is back
903
00:46:47.860 --> 00:46:49.760
to you. But thank you both for joining us. And
904
00:46:49.780 --> 00:46:51.380
thanks to everyone.
905
00:46:51.030 --> 00:46:51.489
For being here.
906
00:46:52.440 --> 00:46:55.699
Thanks, Casey. And on behalf of the Federalist Society, thank
907
00:46:55.940 --> 00:46:57.340
all of you. I want to thank all of our
908
00:46:57.380 --> 00:47:00.679
experts for sharing their time and their expertise with us today.
909
00:47:00.780 --> 00:47:04.230
We really especially appreciate you joining us on fairly short
910
00:47:04.289 --> 00:47:07.829
notice to discuss such a timely and rapidly evolving issue
911
00:47:08.349 --> 00:47:11.030
and for helping us to make sense of the latest developments.
912
00:47:11.579 --> 00:47:14.119
Thank you also to our audience for joining us and
913
00:47:14.159 --> 00:47:17.260
for your thoughtful participation. If you have any feedback, we
914
00:47:17.280 --> 00:47:22.039
always welcome it by email at fedsocforums at fedsoc.org. As always,
915
00:47:22.059 --> 00:47:24.280
we ask that you please keep an eye on our
916
00:47:24.320 --> 00:47:27.460
website and on your inboxes for any announcements about upcoming
917
00:47:27.500 --> 00:47:30.570
virtual events. Thank you all for joining us today. We
918
00:47:30.610 --> 00:47:32.809
really appreciate your time. And with that, we are adjourned.
919
00:47:33.349 --> 00:47:37.130
Thanks for listening to FedSoc Forums, a Federalist Society podcast.
920
00:47:37.510 --> 00:47:40.030
Be sure to subscribe wherever you get your podcasts so
921
00:47:40.070 --> 00:47:44.260
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