I love the First Amendment; nobody loves it better than me. Nobody. I mean, who uses it more than I do?
—Donald Trump, in speech to conservative activists, Feb. 24, 2017
“phony and non-existent ‘sources’” “Failing” “Wrong!” “Failing” “Bad Reporting” “Another false story” “wrong so often” “the pipe organ for the Democrat Party” “Failing” “has totally gone against the Social Media Guidelines that they installed” “a virtual lobbyist” “many of their biased reporters went Rogue!” “naive (or dumb)” “hates the fact that I have developed a great relationship with World leaders like Xi Jinping” “weak and ineffective!” “Failing” “failing” “Failing” “Failing” “Fake News” “Collusion?” “anti-Trump” “Failing” “massive unfunded liability” “non-existent sources” “failing” “Fake News” “totally inept!” “made every wrong prediction about me including my big election win” “failing” “big losses” “Failing” “every story/opinion, even if should be positive, is bad!” “Failing” “Failing” “sick agenda” “don’t even call to verify the facts of a story” “A Fake News Joke!” “failing” “writes false story after false story about me” “failing” “Fake News” “Fake News” “just got caught in a big lie” “has been calling me wrong for two years” “Failing” “failing” “has disgraced the media world” “failing” “Gotten me wrong for two solid years” “their coverage was so wrong” “Now worse!” “failing” “would do much better if they were honest!” “failing” “failing” “failing reputation” “has become a joke” “Sad!” “failing” “the enemy of the American People!” “failing” “FAKE NEWS” “Failing” “failing” “failing, does major FAKE NEWS” “Now they are worse!” “was forced to apologize to its subscribers for the poor reporting it did on my election win” “failing” “making up stories & sources!” “writes total fiction concerning me” “failing” “have gotten it wrong for two years” “is still lost!” “FAKE NEWS” “bad and inaccurate coverage of me” “DISHONEST” “got me wrong right from the beginning and still have not changed course, and never will” “dwindling subscribers and readers” “so false and angry” “FAKE NEWS!” “wrong about me from the very beginning” “failing”
—Words used by Donald Trump to describe The New York Times, according to a Times news article (first year of his presidency only)
BY THE TIME February 24 rolled around, it was pretty clear that Inauguration Day had not just been one bad and regrettable go-home-and-sleep-it-off moment in the life of Sean Spicer—some random screw-up caused by first-day jitters, an impossible boss, and the emotional drain of an inauguration. For a month, the battle inside the White House press room had raged on with no sign of an armistice. The president’s bad-mouthing of the press spewed forth unchecked on Twitter. Any hopes had disappeared that Trump was going to become a different man once the word “president” was attached to the front of his name or that being in the White House and feeling history’s hand would somehow magically transform Trump’s staff into the keepers of democracy’s best traditions. The administration’s push-and-shove with the press was not about politics or reporters with bad manners, as much as the president and his supporters wanted to frame it that way. Reporters got in Sean Spicer’s face. Reporters asked rude questions. Got it. There were some charm-school dropouts in the White House press corps. (There were also a few stunningly unqualified lapdogs who had no business being there.) But it’s hard to be a check on power if you’re not, at times and in some fashion, confrontational. And it’s hard to have a democracy if there are no checks. The day-to-day interactions between the press and the new administration had begun to feel like a low-burn war, a war about truth and the independence of the press and, in the darker moments, the future of democracy. Little of it seemed to have much to do with the law or with lawyers, which was, in and of itself, telling of how much democracy was built not on rules and laws but on shared beliefs and values and the well-tested customs and habits of freedom. And then came February 24, when all the ugliness, when everything that had gone off course, was thoroughly and glaringly on display for the whole world to see. By day’s end, Sean Spicer would be barring reporters from a press briefing, and journalists would start calling their lawyers for real.
My day had begun like too many days over the past decade, with an unhappy note about troubles abroad. It was five in the morning when I got a message from our local lawyer in Turkey.
Dear David,
I hope you are well. I would like to update you about the recent developments in Turkey. Safak Timur informed me last week and said that she was not allowed access to a reception at the presidential office despite the invitation on security reasons but without no further explanations …
Kind regards,
Safak was one of the local journalists in Turkey who worked for The Times. I worried about her and the other locals. They labored under real hardships to try to tell the story of what was going on there. Turkey had been a more or less constant issue for The Times for nearly two years. Threats from the Erdogan government. Hateful media attacks on The Times and its reporters. The barring of a veteran Times reporter from even entering the country. Now our Turkish reporter was being locked out of a presidential press event. It was infuriating, outrageous, wrong. But it was Turkey. No surprises there. Turkey, once a model of an emergent democracy, was in an endless downward spiral, with a government intent on controlling the press through intimidation, arrest, denunciation, and every other tool in the autocrat’s toolbox.
For a decade and a half, I had worked with reporters who found themselves in jams in hard places around the world as they tried to report freely on countries that rarely even feigned an interest in the truth or transparency. Threats, detentions, attempts at censorship—the world worked that way these days. But I did worry that something had changed abroad. Whether there was a Republican or Democratic administration in office, I had always known that we could count on the State Department to stand with us, sometimes openly, sometimes quietly, in protecting journalists. More than that, diplomats in the past had thought it was part of their mission to encourage a free press in the countries where they served. Now? Who could blame Erdogan if he thought a good way to curry favor with the American government in 2017 was to attack The New York Times? From everything I could see, he was probably right in his calculation.
But nothing was going to help us this day. Reporters being barred from a presidential event? Just another day in Turkey.
There was a second early morning email, this one from one of our journalists based overseas, who was sending me details about an upcoming trip: his flights, his cell phone numbers, his plan for staying in touch. It was a precaution. He was a Canadian with an Indian name and dark skin. He was about to take what was once a routine trip but was now fraught and unpredictable: he was coming to New York. He was going to let me know when (if?) he got through customs at JFK.
Meanwhile, at the White House, the president was up and tweeting:
The FBI is totally unable to stop the national security “leakers” that have permeated our government for a long time. They can’t even find the leakers within the FBI itself. Classified information is being given to media that could have a devastating effect on U.S. FIND NOW.
It could not have come at a worse time. We were in the midst of doing a sensitive national security story, the kind of story we had done dozens of times before, and our reporters were talking to White House officials. It was standard operating procedure with a story like that to give senior government officials a chance to comment on what we intended to publish, and as much as officials hated the idea that we were about to publish classified information, they understood the value of engaging. Only now the rules seemed unclear, or maybe there were no rules. With all of that going on in the background, Trump’s tweet was jarring.
The president was due to speak later that morning at the annual meeting of the Conservative Political Action Conference. The chances that he was going to forgo another anti-press rant were about zero. He had capped off the week before with the notorious and chilling tweet labeling news organizations “the enemy of the American people.”
Nothing about that tweet afforded even a dash of hope that it was the product of a bad moment, a misfire in the presidential synapses. He had just arrived at Mar-a-Lago on a Friday afternoon. At 4:32 p.m., he posted the first version of the tweet:
The FAKE NEWS media (failing @nytimes, @cnn, @nbcnews, and many more) is not my enemy, it is the enemy of the American people. SICK!
Moments later the tweet disappeared, only to be replaced in 16 minutes with a more permanent version, adding ABC and CBS:
The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!
Put aside for a moment that he was talking about the press. Accept that any president is entitled to express his displeasure with anyone, citizen or otherwise. That was not the point. The point was this: when had it become acceptable for a president to denounce an entire group of American citizens—any group, pick one—as traitors? I had resisted, in my raging moderate style, all those overheated comparisons to Nazi Germany that too many of my liberal friends offered up much too easily. Now I was no longer sure.
Most everyone I knew in the press tried to make light of it, dismiss it as just more Trump noise, loved by his base and dismissed or ignored by everyone else. The next morning I was emailing with a government lawyer who noted I had been at my computer at 5:30 on a Saturday morning and wanted to know why. “The enemy of the people never sleeps,” I tapped out. The response came immediately: “Jesus. I am laughing at the absurdity of this.” At some level, though, the smear stung. It was a hateful justification just waiting there for those in the alt-right who were already programmed to abuse reporters. It demonized and divided, the classic bully stratagem to create us versus them.
As the president was making his way to CPAC, I worked with Phil Corbett, our standards editor, to try to figure out how to fashion an editor’s note for a story that the paper could no longer vouch for. The last thing we needed was a full-blown retraction of a story. It didn’t really matter what the story was about. It fed into the presidential narrative that reporters made things up and could not and should not be trusted. The article had been done by a freelancer and was far removed from the paper’s political coverage, but what did it matter? It was the wrong time to have to fall on a sword.
The piece was from December and was about fentanyl overdoses on Long Island. Questions had been raised about its accuracy by another newspaper. Mostly the story checked out, but editors at The Times had been unable to locate or confirm the existence of two people who were named and quoted. The writer continued to insist that the sources were real, but, as a long editor’s note would soon explain, the editors “concluded that The Times cannot vouch for the accuracy of those sources, and that material has been removed from the online version of the article.” It was the right thing to do. Our readers needed to know. None of that made the episode any less painful.
As if on cue, just as I was reviewing the note, the president went onstage at CPAC and was not a minute into his speech before it started again:
Sit down, everybody. Come on. (Applause.) You know, the dishonest media, they’ll say he didn’t get a standing ovation. You know why? No, you know why? Because everybody stood and nobody sat, so they will say he never got a standing ovation, right? (Applause.) They are the worst.
And I want you all to know that we are fighting the fake news. It’s fake—phony, fake. (Applause.) A few days ago, I called the fake news “the enemy of the people”—and they are. They are the enemy of the people. Because they have no sources, they just make them up when there are none. I saw one story recently where they said nine people have confirmed. There are no nine people. I don’t believe there was one or two people. Nine people. And I said, give me a break. Because I know the people. I know who they talked to. There were no nine people. But they say, nine people, and somebody reads it and they think, oh, nine people. They have nine sources. They make up sources.
They are very dishonest people. In fact, in covering my comments, the dishonest media did not explain that I called the fake news the enemy of the people—the fake news. They dropped off the word “fake.” And all of the sudden, the story became, the media is the enemy. They take the word “fake” out, and now I’m saying, oh, no, this is no good. But that’s the way they are. So I’m not against the media. I’m not against the press. I don’t mind bad stories if I deserve them. And I tell you, I love good stories, but we won’t—(laughter)—I don’t get too many of them.
On and on it went. The president meandered to his declaration that he was a lover of the First Amendment (“Who uses it more than I do?”) and some faint praise for a couple of reporters from Reuters who had just interviewed him. There was, as far as I could tell, no after-speech Q&A in which a razor-sharp CPAC member might ask how the president knew who the sources were even though the sources didn’t exist and had been made up? Trump had doubled down on the “enemy of the American people” bit. I didn’t need to follow the coverage in real time.
Emily Bazelon was doing a long magazine piece on how the Trump White House was angling to use the Department of Justice, or DOJ, to carry out its political agenda. Her editor, Ilena Silverman, asked me to look at a final proof of the story as it headed toward publication. It was titled “The Department of Justification,” and it carefully laid out the case for the ways in which politics could reshape the DOJ. It was a stark reminder of the damage that can be done in a democracy when the institutions designed to be a brake on executive power are attacked, undermined, and compromised. On a day that had begun with the president doing a Twitter-scream at the DOJ about leakers—“FIND NOW”—it was a lesson worth remembering.
Only I was about to learn another lesson: the meaning of the term “gaggle.” Word had started trickling up from D.C. in the afternoon that something had gone terribly wrong during a press briefing at the White House. Not much was very clear except (1) we knew that a Times correspondent and others had been barred by Sean Spicer from attending a press event and (2) it was outrageous. A minor scrum had broken out when the White House press staff let the approved journalists move from the White House briefing room to Spicer’s office for the briefing while the others were turned away at the door by a press aide. Soon the Secret Service was pulled into action to herd the unwelcome reporters out of the way.
The first details to reach me were hazy, and there were conflicting accounts of who got in and who got excluded and why. But whatever the answers to those questions were, I knew right away there was going to be another, harder question coming my way, one that would demand an answer in short order: was The New York Times prepared as an institution to sue the president of the United States over what Spicer had done? And once you started turning that question over in your mind, it was impossible not to entertain a second: what the hell would we do if we lost?
In the next day’s paper, The Times would put the whole event into blunt context: “Hours after the [CPAC] speech, as if to demonstrate Mr. Trump’s determination to punish reporters whose coverage he dislikes, Sean Spicer, the White House press secretary, barred journalists from The New York Times and several other news organizations from attending his daily briefing, a highly unusual breach of relations between the White House and its press corps.”
That was not how the White House saw it, not surprisingly. The details get tedious, but here is what you need to know: There are gaggles and there are standard press briefings. The standard briefings were the ones in which Spicer fielded questions from the press, his head always looking as if it were on the verge of exploding as the questioning grew more contentious. America knew about those. Spicer’s daily performance had become a staple of TV viewing for hundreds of thousands of Americans and, for those with better things to do in the afternoon, the briefings had become a rich comic vein for Saturday Night Live, with Melissa McCarthy cast as a gum-chewing “Spicey” outfitted with a motorized lectern on wheels. Those were the standard briefings. Then there were gaggles, more informal and smaller gatherings of reporters, often with no cameras present. “Pool reporters,” who are designated by the White House Correspondents Association, would cover the event and then share notes with those who had not been present.
In the aftermath of the showdown with reporters at the White House, Spicer and his team embraced a “Gaggle Defense.” There had been no lockout of reporters, the White House announced. There was a gaggle, just a gaggle. The pool reporters represented the entire press corps, just like always. It was business as usual. “Claims that outlets were excluded are not factual,” Stephanie Grisham, a White House press aide, told one reporter, sounding strangely restrained and diplomatic for someone whose boss would never reach for the tongue-twisting “not factual” when “fake news” would do the job just fine. She also sounded seriously untruthful (or, as she would put it, “not factual”). The reporters herded into the hallway and then moved along by the Secret Service were excluded, factually and in every other way.
The short story is this: The White House decided to do something of a super-gaggle. It would still include the designated pool reporters, but the Spicer team had invited a few of its favorite apple-polishing news outlets to come along. Only no one seemed to know who exactly was going to get an invitation to be part of the event. The Times asked about being included. The request was met with silence. At one point, the session was going to take place in the briefing room—suggesting that everyone with press credentials was welcome—but was then shifted to the cozier confines of Spicer’s office.
By the time the appointed gaggle hour rolled around, a crowd of White House reporters, not sure whether they were invited and suspecting—rightfully—that something not good was brewing, had gathered in the briefing room. The White House press office began culling the crowd. The invitees—the designated pool reporters and a group of White House faves—were ushered toward Spicer’s office; the excluded were physically prohibited from attending. Those left behind began demanding to know what criteria were being used to separate the favored from the unfavored. The press staff stonewalled them, suggesting they submit their questions by email. Some of the barred reporters understandably lingered nearby hoping that somebody would finally explain how it was the White House could decide to reward certain reporters with access to a news event while punishing others by prohibiting their attendance. The press office had the Secret Service move them along.
Largely because of the traditional pool arrangement, the gaggle had included some of the Twitter-slapped “fake news” outlets most scorned by the president. NBC was in. So were CBS and ABC. But the special invitees tilted heavily toward the president’s go-to news sources: Breitbart, Fox, The Washington Times, and One America News Network. Pointedly not on the approved list were news organizations that had consistently done tough reporting on the new Trump administration: Buzzfeed, The Guardian, CNN, BBC, the New York Daily News, Politico—and The New York Times. Even some of those reporters who made the cut were incensed by the White House’s crude attempt to divide and conquer. The Wall Street Journal and the McClatchy news organization had their reporters in the gaggle but announced they would not play Spicer’s game again in the future. The reporters for Time and the Associated Press, who were among those to be let in, turned and walked away when they learned what was happening.
Confronted with the facts about the ugly turn of events, Spicer quickly lapsed into Inauguration Day Crowd Count Mode. “I think we’ve gone above and beyond when it comes to accessibility and openness,” he said. Not that Spicer and the White House were hiding their motivation for excluding The Times and others: they didn’t like what they read. “We’re not just going to sit back and let false narratives, false stories, inaccurate facts get out there,” he said in defending the briefing room blockade. Although the administration was barely a month old, people had quickly learned that terms like “false narratives, false stories, inaccurate facts” were just code words. Loosely translated back into real people’s English, they meant, “We don’t like the facts that you are reporting.” Earlier that month the president had tweeted, “Any negative polls are fake news, just like the CNN, ABC, NBC polls in the election.” As for the lovable bunch of conservative outlets allowed to join and turn a regular gaggle into a super-gaggle, that, Spicer said, was just his prerogative.
But was it? Did the law really allow the White House to favor some news organizations and punish others with exclusion?
Back in New York, as the story broke across the internet, it was raining lawyers. One of the things that makes being a lawyer for The New York Times either easier or harder than working elsewhere is that when there is a day like February 24, media lawyers all across America drop whatever they happen to be doing for their paying clients and start sending in free legal advice. It’s a mixed blessing. Many just want to help. Some are hoping to land work as outside counsel. A few are showing off. Others fail miserably in trying to hide the fact that what they are really saying is that you don’t know how to do your job. They do.
Before the afternoon was finished, I had received emails from lawyers in various cities citing cases they thought would be helpful and theories they thought might power a First Amendment case against the president. Some of the nation’s top firms said they were ready to jump in. Others, like me, were just trying to figure out what had happened. “Declaration of war or shot across the bow?” read the subject line on the first email to come through. A friend from Iowa sent a case from 1971 in which the police chief of Davenport, Iowa, refused to provide any information to an alternative newspaper called Challenge while letting reporters from the mainstream papers and TV stations have access to the records. Challenge had only $10 in its bank account at the time, but its leadership knew something about the Constitution. The paper went to federal court and won a ruling that the city was violating Challenge’s constitutional rights. “An old one but a good one. Go get them,” my friend wrote. He knew that I had once worked as a journalist in Davenport and would be a sucker for a strong decision filled with Iowa common sense.
Others admitted to having no particular expertise, but they thought the whole exercise in the White House press office stank all the same. “Of the many troubling things Donald Trump’s White House has done since his coronation, I find this the most troubling,” wrote a New York lawyer. “It would seem to me that choosing who will report the news is how dictators get their start. While I am neither a constitutional nor media lawyer, I am hopeful that the Times will take swift legal action to help declare this type of conduct unconstitutional.”
Every lawyer in my position wants his or her Pentagon Papers moment. Jim Goodale, The Times’s general counsel in 1971, had been convinced that the First Amendment allowed The Times to publish the classified documents that had been leaked to the newspaper, even after The Times’s longtime outside counsel refused to take the case and told him that the paper was committing a crime. History had proved Jimmy right. To bring a case now challenging the president’s exclusion of journalists—to draw a line on what a president could do to suppress voices he did not like—would have been an extraordinary legal undertaking, a bright, shining moment for press freedom.
If we won.
If we lost … it was hard to imagine a bigger misstep at that particular moment. Not only would we have lined up as a legal adversary to the White House, playing right into the Trump narrative, we would also be responsible for the courts’ giving their legal blessing to Spicer’s bad behavior, opening the door to even more abuse. Two of the most senior lawyers I knew in the media bar worried that one of the excluded media outlets from outside the mainstream would go rushing into court in anger, stumble on the law, and make everything worse for everybody.
My colleague Ian MacDougall and I were scrambling to figure out what the law actually said about excluding reporters from press events. As always, the text of the First Amendment itself offered no clue. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Decades of court decisions had breathed life into those words—and also turned the law into a minefield of complexities. One of those complexities stared us squarely in the eyes: elected officials don’t lose their First Amendment rights, at least not all of them, when they step into office. They remain Americans free to speak, to criticize, and, yes, to tweet and to choose not to speak when the spirit moves them, just like the rest of us. They are not required to give access to everyone who claims to be a journalist—that would be just about everyone with a Facebook account or a Twitter feed—no matter how much the wannabe journalist wants to ask the president or Sean Spicer a few questions. No law says every citizen, or even every journalist, is entitled to a White House press pass.
Court decisions had broadly protected the right to speak and to publish under the First Amendment. But the legal landscape changes dramatically, and the going gets substantially harder for the press, when the question is whether there is an affirmative right to obtain information or a right to capture the news in a particular way. Television has been around for decades, the Supreme Court has been reshaping the contours of American life year after year, and no one has seen a broadcast of a single argument. It is not because CNN, NBC, and all the others don’t want to be there with their cameras. As for the particular legal dilemma that faced us that afternoon—the exclusion of reporters from press events—the decisions from prior cases were a crazy quilt with no particular pattern.
Ten years earlier, Robert Ehrlich, the governor of Maryland, had engaged in a particularly egregious act of political hackdom: ordering all state employees to stop talking to two reporters for The Sun of Baltimore. His edict left little room for doubt:
Effective immediately, no one in the Executive Department or Agencies is to speak with [The Sun reporter] David Nitkin or [The Sun columnist] Michael Olesker until further notice. Do not return calls or comply with any requests. The Governor’s Press Office feels that currently both are failing to objectively report on any issue dealing with the Ehrlich-Steele Administration. Please relay this information to your respective department heads.
When Nitkin tried to get information from state officials, he was told that “the ban is still in effect” or “I can’t talk to you.” He was barred from one press briefing and not invited to a second. The Sun sued. The case finally made its way to the Fourth Circuit Court of Appeals, which acknowledged that a government violates the law when it responds to a reporter’s “constitutionally protected activity with conduct or speech that would chill or adversely affect his protected activity.” But it was all downhill for The Sun after that. The court looked at how reporting got done on the ground and how journalists and government officials interacted in real life. “Government officials frequently and without liability evaluate reporters and reward them with advantages of access. Government officials regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters’ expression,” the court wrote.
That, the court said, was not punishment or retaliation but just the way of the world when it came to covering government. The judges fretted that if they ruled in favor of The Sun, every interaction between government employees and reporters angling to beat their competitors would become a matter of constitutional rights. The Sun’s case was not helped by the fact that neither writer claimed that the governor’s directive had chilled their speech or that The Sun was able through other reporters to carry out the work of covering the statehouse. As for Ehrlich’s written directive, the court embraced the First Amendment—the First Amendment rights of Governor Ehrlich, that is. His “pique, criticism, and explanation” for the ban was just the governor doing what the First Amendment allowed him to do. In other words, a case that was meant to vindicate the First Amendment rights of reporters blew up in the media’s face like a box of Acme dynamite in a Road Runner cartoon. The Sun had made First Amendment law with a decision that affirmed the First Amendment rights of thug politicians to punish reporters they don’t like much. Not exactly the outcome I would be looking for in The New York Times Company v. Donald J. Trump.
Lawyers at other media organizations were not ready to be deterred by the Sun decision. I knew that Buzzfeed and other of the newer media companies were particularly jazzed about finding some way to take on Spicer’s ban in court. No wonder. Trump had singled out Buzzfeed for a special heap of abuse after it published the famous “dossier” compiled by the British spy Christopher Steele outlining links between the Trump campaign and the Russian government. Buzzfeed’s reporter had been among those banned from the gaggle.
If you could get beyond the Baltimore case, there were other decisions that gave some hope. Those cases had been decided by judges who read the First Amendment very differently than the judges who decided The Sun’s appeal. In Louisiana in the 1980s, a federal judge had torpedoed the rationale that Spicer would embrace 30 years later: that a public official was free to bar reporters whom he found to be inaccurate. The Louisiana case involved Harry Lee, the longtime sheriff of Jefferson Parish who had earlier gained some well-deserved national attention by ordering his deputies to randomly stop black men in white neighborhoods. The order was later rescinded, but Lee said he never figured out why the media had criticized him for what he thought of as just “good police practice.”
By 1987, the focus of his attention was The Times-Picayune, the New Orleans daily. Unhappy with the coverage his department was getting in the paper, Lee shut out Times-Picayune reporters, banning them from press conferences, forcing them to make written requests for information, and generally doing what he could to impede their work. He was not a person known for his subtlety. When a Times-Picayune reporter sought the sheriff’s comment for a story, Lee told an underling to tell the reporter, “Sheriff says screw press. Has no comment under any circumstances.” The underling duly noted in his log that he had “called [the reporter] back and relayed the non-message.”
When the paper sued in federal court, Lee explained that he felt he was entitled to ban the reporters because they had factual errors in their work. The court wasn’t buying it. Before a reporter could be banned, the judge said, the sheriff would need to demonstrate that the ban served “a compelling governmental issue.” Promoting accuracy or objectivity did not meet that test—especially “when the governmental official enforcing the discrimination is himself the subject of the news reporting which he purportedly wishes to purify of inaccuracy.” And just in case the sheriff wasn’t fully grasping the point, the judge added: “This is the essence of censorship forbidden by the First Amendment and so abhorred by the founding fathers.”
At least one other federal case, out of Hawaii, had come to the same conclusion, but the lawyers who were eager to battle Trump in court kept pointing to a decision that was nearly 40 years old, Sherrill v. Knight. Bob Sherrill was a veteran Washington correspondent who was denied a White House press pass even though he had press credentials to cover the House and Senate. It turned out that the Secret Service had recommended that Sherrill not be allowed into the White House press room because of an unfortunate incident—these things used to happen in journalism—in which he had assaulted the press secretary to the governor of Florida. Sherrill filed a lawsuit over his exclusion from the White House, and an appeals court in D.C. found that Sherrill could not be denied the pass unless he was given due process. That meant the White House needed to have a written policy setting forth the reasons a pass could be denied, and a reporter in Sherrill’s shoes had to have a chance to challenge the denial, presumably a chance that didn’t involve fisticuffs.
At first blush, the ruling seemed to be the legal hook we were looking for. It was about the access granted to those carrying press passes. Everyone in the press room that day, whether going to the gaggle or being barred from it, had press credentials, but the practical effect of Spicer’s invitation system was that some press passes carried more privileges than others, or, to line it up with the decision in Sherrill’s case, some pass-holders were arbitrarily denied privileges given to some of their colleagues. That all sounded good unless you happened to keep reading the decision in Sherrill. As the court went on, you could almost hear the air going out of our potential argument: “Nor is the discretion of the President to grant interviews or briefings with selected journalists challenged. It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all.”
Other complications could not be ignored. Some of the facts behind Spicer’s stunt would undercut our arguments. Pool reporters were allowed in. By long tradition they were required to work as the reporters for all the news organizations that were not present. And no one with a press pass was being banned from the regular press briefings that Spicer continued to have. We also knew that any suit against the Trump administration would be met with one of Trump’s favorite battering rams: what about Obama? In fact, Obama had declined to let Fox News anchor Chris Wallace participate in a round of Sunday talk show interviews that Obama did in 2009. “We simply decided to stop abiding by the fiction, which is aided and abetted by the mainstream press, that Fox is a traditional news organization,” Dan Pfeiffer, the deputy White House communications director, said at the time. The Obama White House tried a similar tack when the networks were invited to interview Ken Feinberg, who was overseeing executive pay for those companies bailed out by the federal government during the 2009 financial crisis. When other news organizations found out that Fox was to be excluded, they threatened a boycott. The Obama team relented.
Yet one fact was not in dispute from the Day of the Gaggle: the White House and Spicer had acted terribly. Maybe it was not illegal, but between Trump’s tweeting and Spicer’s office blockade, they were tearing at the fabric of democracy. We shouldn’t be emulating Turkey. The First Amendment was written into the Constitution not to assure the rights of the lapdog press to flatter the people in power but to protect the voices of those who were intent on challenging the sitting government, fairly or unfairly, accurately or inaccurately, politely or stridently. Even presidents with hateful relationships with the press seemed to get that, until now. The law was an imperfect vehicle for forcing a president to respect the norms and values that democracy depended upon. The First Amendment can be stretched just so far. At some point, democracy assumes that people in power will honor democratic norms and values without being forced to do so by laws and lawsuits. Sometimes democracy assumes wrong.
The day after the gaggle, a lawyer for some of the other news organizations wanted to know whether The Times would be willing to sign on for some sort of joint legal effort. I balked. “I thought the NYT response [from executive editor Dean Baquet] yesterday—undertaken with no input from Legal—was right: a strong statement about policy and norms from our executive editor,” I wrote. “I may be wrong but I think the media won that round. The Trump administration embarrassed itself and this is likely to go down as a ham-handed one-off (as happened when Obama tried to exclude Fox from the TV interview in 2009). If it continues, then there will be something for lawyers to do.”
Baquet had struck just the right note on February 24, a day otherwise devoted largely to everything that was going wrong for people who cared about a free and independent press. “Nothing like this has ever happened at the White House in our long history of covering multiple administrations of different parties,” he said in a statement. “We strongly protest the exclusion of The New York Times and the other news organizations. Free media access to a transparent government is obviously of crucial national interest.”
Floyd Abrams, the lawyer who has made the single greatest contribution to press freedom in our lifetimes, also laid out the case neatly: “Unhappiness with and criticism of the press by American presidents has been the norm, not the exception,” Floyd told The Times. “But daily denigration of the press as the enemy of the American people and statements that the use of confidential sources by journalists ‘shouldn’t be allowed’ is both novel and dangerous.”
Nobody filed a lawsuit. The gaggle blockade proved to be a one-off. The correspondents went back to their daily pitched battle with Spicer, trying to claw out a few truths from a White House whose instincts ran in a different direction. Saturday Night Live continued to have great material to work with.
In the midst of the uproar over Spicer and Trump on February 24, another email had come in, barely noticed in the hurly-burly of the craziness in D.C. The ACLU was offering to train reporters from various news organizations about what they should do if they are stopped at U.S. customs as they come back into the country and government agents want to seize or inspect their laptops and cell phones. Was The Times interested?
How could we not be?