Access Denied: Trump's Clash with the Press and the Constitutional Limits of Presidential Authority

The American media-state relationship has always been an uneasy one but the latest White House fight shows why that tension is built into the American system.

The relationship between the American government and the media has never been an easy one, nor was it meant to be. The White House needs journalists as a conduit to the people. The pressure of presidential power must be projected to the outside world and, in turn,  journalists need access to the levers of power, as reporting on the government from outside of it is difficult.

Illustration by The Geostrata

Yet the press is also supposed to be institutionally separated from the government, which it reports on; between the power it is given access to and the power it is charged to examine, there is a contradiction built into the system. Presidents in the US have always sought to limit that reliance. Franklin Roosevelt appealed to Americans via radio. Successive presidents took to television and then satellite broadcasts.

Today, social media allows presidents to directly communicate to the nation in a heartbeat, without newsrooms having to pass along the message. That direct presidential-to-public communication, however, has always stood alongside independent reporting: the president explains what the administration wants the nation to hear, but the press explains what is absent.

That's partly why what is physically close to the President has mattered for such a long time. The White House press pool arose simply because no one news organisation can travel with the President every step of the way. A small group of journalists and broadcasters moves with the President, shooting footage of what happens and sharing it with the others. This system was in place before John F. Kennedy's assassination in 1963, but JFK's death showed why the physical proximity of the press to the President matters in moments of crisis.

The rule remains simple: if the President is exercising power, independent journalists should be near enough to see him.

That system has been integrated into a far greater debate. President Donald Trump, on September 19, said that he was suspending the White House press credentials for three news organisations, which were CNN, MS NOW and Politico, over what he described as "fake news and the fact that their reports were total fiction and a lie." Reporters for those organisations soon lost access to the White House grounds. This is a key point as the freedom to access government buildings isn't open-ended.

The White House has long been a press-controlled building; the administration can exercise valid security, capacity, and presidential movement restrictions. The journalists from CNN, MS NOW and Politico said that the expulsion was an act of retaliation for their reporting and sued under the First and Fifth Amendments. The First Amendment question asks whether the government's entry was a form of punishment for the journalists' protected expression or whether the administration penalised a particular ideology; the Fifth Amendment question asks whether the government followed the necessary legal procedures.

That is what the case is now about.

THE FIRST AMENDMENT

The First Amendment is part of the American Bill of Rights. It begins with the words, "Congress shall make no law" restricting freedom of religion, speech, the press, peaceful assembly or the right to petition the government.

It does not, however, guarantee that news organisations or journalists will always be truthful, nor does it require the public to trust their reporting. The President is equally free to criticise newspapers, challenge their reporting or call their coverage false.

What the First Amendment restricts is the government's ability to use its authority to punish journalists for their protected expression. The constitutional distinction is therefore not whether the President can criticise the press, but whether the government can decide which forms of expression deserve access to the institutions journalists are tasked with covering. This is where the distinction between ordinary access restrictions and viewpoint discrimination becomes important.

A journalist may be denied entry to an event because of limited space, security concerns, or other legitimate, consistently applied rules. Such restrictions are not automatically unconstitutional. However, if a news organisation is excluded because officials object to its reporting or editorial position, the government may be using access as a means of penalising protected expression. That is the central First Amendment question in this case. The news organisations have raised it in court, but it remains to be resolved.

THE FIFTH AMENDMENT

The Fifth Amendment enters the fray through the question of due process. The amendment protects against the federal government depriving an individual of "life, liberty, or property, without due process of law." Ultimately, due process relates to the rules the government must follow when it exercises its powers under the law. The government may have the power to decide something and yet still be required to give notice and an opportunity to object before removing some protected interest.

That became the immediate issue before Judge Timothy Kelly. On September 24, Kelly gave the Trump administration 14 days to restore the access of CNN, MS, and Politico to the White House. His order temporarily stopped the officials from implementing the ban.

In his order, Kelly pointed out that it is more likely than not that the outlets will succeed in proving that their White House credentials were revoked without the process protected by the Fifth Amendment.

That distinction matters because that ruling is much narrower than the political battle that followed it. The court didn't say it's OK for journalists to have a free pass to the White House. It said that even when the government does have the power to control access, it can't arbitrarily deny access without complying with constitutional safeguards.

The government also tried to defend what it had done on national security grounds, but Kelly rejected the argument that those claims, in that form, warranted overriding the procedures at issue. For now, the court has delineated a boundary on the scope of the government's action, while leaving open the question of why the outlets were subject to First Amendment exclusions.

WHY THE PRESS POOL MATTERS

The row took on more significance when CNN was cut from its assigned role in the White House television pool, when Trump traveled to New York for the UN General Assembly. A television pool is a rotating group of networks that hold the covering rights to presidential events. The pool consists of ABC, CBS, CNN, Fox News, and NBC; each reporting network supplies footage for the others to use. When CNN was cut, the other networks did not immediately fill its slot.

That response has moved the problem from one of control over access by a particular outlet to control over the very system of presidential reporting. If the White House can decide which body takes part in the pool, then it is not just managing entry to a building. It is taking control of the process by which the presidency is officially chronicled and passed on to the rest of the press.

The impact of that was immediate, as one Presidential speech was apparently inaudible to TV audiences as it was missing the usual independent pool coverage. The episode showed something quite practical: the White House doesn't always need government video, but a pool isn't always the best option. The White House has the video, but the point of a pool is to cover a story from outside a government news operation.

THEN CAME TRUMP TV

Adding a further layer to the dispute is the launch of "TRUMP TV: The Essentials Station". The White House has created a digital 24-hour stream of presidential addresses, administration content, and coverage of the President's day. The White House is adding to its arsenal of direct engagement tools. In part, this is nothing new: the President is "courting the people without the filter of mainstream media. What is new is the ability to do this non-stop with 24/7 broadcasting capacity. Now a White House can give itself the ability to show its own content (what it puts out there is still its version of events) without a third-party media filter.

WHAT THE DISPUTE IS REALLY ABOUT

The larger argument is therefore not whether the White House has the right to control its own premises. It does. Nor is it whether the media should be immune from criticism. It should not be. The more difficult question is whether access to the presidency can become a form of leverage over the organisations covering it. The First Amendment raises the question of whether the government can use that access in response to a particular editorial viewpoint.

The Fifth Amendment asks whether, regardless of the government's underlying justification, it followed the required process before withdrawing access. The latest ruling answers only part of that question, but it is an important part.

The White House has been told that its control over access does not mean it can exercise that control without constitutional procedure, and the First Amendment dispute meanwhile remains open.

That is what makes this episode worth watching beyond the personalities involved, as the American system has always depended on a certain separation between political power and the institutions that report on it. Presidents communicate, journalists question, and access sits somewhere between the two, but that arrangement has never been frictionless; the friction is part of how the system works, and the current dispute is testing where that boundary sits when a President can restrict access to the presidency while also communicating directly with the public through his own media infrastructure.

The question is no longer simply who gets through the White House door. The question is whether the government can decide who gets close enough to power to report what is happening behind it.

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BY GUNJAN

TEAM GEOSTRATA

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