“It has been held impermissible,” Judge Oetken wrote, “to exclude a single television news network from live coverage of mayoral candidates’ headquarters
and to withhold White House press passes in a content-based or arbitrary fashion.”
Last Friday’s developments at the White House crossed
that legal line, said Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University.
“It is common knowledge,” Judge Paul V. Niemeyer wrote for a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., “that reporting is highly competitive,
and reporters cultivate access — sometimes exclusive access — to sources, including government officials.
“White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news gathering under the First Amendment guarantee of freedom of the press, requires
that this access not be denied arbitrarily or for less than compelling reasons,” Judge Carl E. McGowan wrote for a unanimous three-judge panel.
“Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the First Amendment in assuring
that restrictions on news gathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information.”
Scott Gant, a lawyer with Boies Schiller & Flexner
and the author of “We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age,” said Friday’s developments were troubling.
“The exclusion of certain news organizations from press briefings, if motivated by disagreement or displeasure with their coverage of the administration,
may well have crossed an important constitutional line — potentially constituting violations of the First Amendment,” he said.