June 8, 2020: D.C. Circuit Upholds Injunction Blocking White House From Revoking Reporter’s Press Pass
On June 5, the D.C. Circuit upheld a lower court’s decision to block the Trump administration from suspending Playboy correspondent Brian Karem’s press pass. The administration attempted to revoke Karem’s pass following a heated altercation between him and a right-wing commentator during an event at the White House last year.
“Karem’s due process claim is likely to succeed because, on this record, nothing put him on notice of ‘the magnitude of the sanction’ – a month-long loss of his White House access, an eon in today’s news business – that the White House ‘might impose’ for his purportedly unprofessional conduct at the non-press-conference event,” U.S. Circuit Judge David Tatel wrote for a three-judge panel.
Sept. 4, 2019: Federal Judge Orders White House to Restore Brian Karem’s Press Credentials
A federal judge in the U.S. District Court for the District of Columbia has granted Playboy’s White House correspondent Brian Karem his motion for a preliminary injunction. The judge has ordered President Donald Trump and White House press secretary Stephanie Grisham to immediately restore Karem’s press pass.
“At this early stage of the proceedings, [Karem has] shown that he is likely to succeed on this due process claim, because the present record indicates that Grisham failed to provide fair notice of the fact that a hard pass could be suspended under these circumstances,” U.S. District Court Judge Rudolph Contreras wrote in his opinion. “The Court therefore grants Karem’s motion for a preliminary injunction and orders that his hard pass be restored while this lawsuit is ongoing.”
On Aug. 16, Karem received a 13-page letter from Grisham informing him that the White House was suspending his press pass for 30 days because he had violated a purportedly “widely-shared understanding that at all times at White House press events, members of the press must act professionally, maintain decorum and order, and obey instructions from White House staff.” The letter was in reference to a verbal altercation that occurred weeks earlier between Karem and former Trump advisor, Sebastian Gorka, resulting in only Karem getting punished.
The suspension prompted Karem to sue the administration for violating his First Amendment right to free speech and his Fifth Amendment right to due process. He is represented by Ted Boutrous, who successfully represented CNN reporter Jim Acosta when the White House suspended his press pass back in November 2018.
In the Karem complaint, Boutrous argued that the “widely shared understandings” that Grisham referred to in her letter to Karem were, in fact, not widely understood.
Drawing from Sherill v Knight (1977), an early case decided in favor of a journalist who was denied a White House press pass without notice and without any explanation as to why, Boutrous claimed that Grisham “did not cite any legal authority authorizing her to order the suspension of the hard pass” and that the rules she employed to suspend Boutrous were “too ill-defined, subjective, and vague” to satisfy due process standards.
“As the D.C. Circuit has made very clear, the White House may deny, revoke or suspend a press pass based only on ‘explicit and meaningful standards’ that have been ‘publish[ed]’ so as to afford fair notice to reporters, and to avoid arbitrary or discriminatory punishments,” Karem’s complaint argued.
In granting Karem relief, the federal judge states that the ruling on the preliminary injunction does not address the free speech claims at the center of the case.
“…The Court finds only that the White House likely did not provide the requisite guidance in this specific case—nothing more,” the opinion reads.
CNN District Court Opinion Karem’s Complaint
Aug. 16, 2019: Playboy’s Senior White House Correspondent, Brian Karem, Sues Trump Administration Over Press Pass Suspension
Brian Karem, a senior White House correspondent for Playboy magazine, is suing the Trump administration over the suspension of his press pass. Filed in the United States District Court for the District of Columbia, Karem’s lawsuit marks the second time a journalist has sued the administration after losing their White House press credentials.
In November 2018, Jim Acosta, a senior White House correspondent at CNN, lost his hard pass after questioning the President about his immigration policy. Acosta sued the administration for violating his First Amendment right to freedom of the press and his Fifth Amendment right to due process. Two weeks after Acosta lost his press pass, a federal judge found that his due process rights had been violated, and ordered Acosta’s press credentials to be reinstated.
Although Trump as a political candidate may have a right to refuse news organizations access to his rallies, the First Amendment restricts a president from barring journalists from White House news conferences whose coverage they deem unfavorable.
Karem’s suspension came after a heated argument with a former White House aide and conservative radio host Sebastian Gorka. The altercation took place in the White House Rose Garden after a talk the President gave about his plan to add a citizenship question to the 2020 census. After hearing Karem make a joke about a group of Trump supporters in the audience being “eager for demonic possession,” Gorka shouted, “And you’re a journalist right?” To which Karem responded, “Come on over here and talk to me, brother. We can go outside and have a long conversation,” a comment he later told The Washington Post wasn’t intended to insinuate a physical challenge.
In a video that was widely circulated online, Gorka is seen walking very close to Karem, shouting, “You’re a punk! You’re not a journalist! You’re a punk!”
While neither party behaved professionally, only Karem received a letter from the White House press secretary, Stephanie Grisham, notifying him that his press pass would be suspended temporarily for violating purportedly “widely-shared understandings and norms of media professionalism.”
“This is part of the administration’s concerted effort to stifle the First Amendment, abandon due process and inject fealty among the press corps,” Karem told HuffPost. “They’re using this as a pretense because I’ve been critical of this administration.”
The Playboy reporter has hired Ted Boutrous of Gibson Dunn as his attorney. Boutrous also defended Jim Acosta in his lawsuit against the administration in November 2018.
In his complaint filed on behalf of Karem on August 20, Boutrous writes: “Defendants’ decision to suspend Karem’s hard pass violates the First Amendment in at least six ways: (i) there is no ‘compelling reason’ to suspend Karem’s hard pass; (ii) as unconstitutional viewpoint discrimination; (iii) as an unconstitutional restriction on Karem’s right of access to the limited public forum areas of the White House that have long been held open to bona fide journalists who reside in Washington, D.C., and who pass Secret Service background checks; (iv) as an unconstitutional restriction on Karem’s rights under the First Amendment’s guarantee of freedom of the press; (v) as unconstitutional retaliation for activity protected under the First Amendment; and (vi) as a retroactive penalty imposed as a result of unconstitutionally vague standards that serve only to chill First Amendment activity.”
Karem is seeking a jury trial for immediate restoration of his hard pass, a declaration that the suspension was unconstitutional, and reimbursement for Karem’s legal fees.
HuffPost The Guardian Complaint
Nov. 12, 2018: White House Restores Acosta’s Press Pass, Announces New Rules in Press Room
The White House has restored Acosta’s press pass following an emergency hearing requested by CNN. CNN requested the hearing because the White House issued a warning to Acosta in a letter signed by press secretary Sarah Sanders and deputy chief of staff for communications Bill Shine, saying that his press pass could be revoked again once the temporary restraining order issued by the judge expires in 14 days. CNN’s lawyers said the threat was an “attempt to provide retroactive due process.”
The White House also issued a new set of rules for press conferences, instituting a one question per reporter policy.
Nov. 8, 2018: CNN‘s Jim Acosta Stripped of “Hard Pass”
CNN’s Chief White House Correspondent Jim Acosta often gets into tense exchanges with President Trump and his Press Secretary Sarah Huckabee Sanders. But following a post-midterm election open press conference in which President Trump shut down Acosta’s line of questioning and a White House staffer tried to take away his microphone, Acosta was denied entrance to the White House and was forced to give his hard pass over to Secret Service.
Sarah Huckabee Sanders shared a video of the exchange on Twitter to support her claim, but many news organizations are calling out the video for being doctored to appear more violent, the same video that was shared by Paul Joseph Watson, the editor-at-large of Infowars.com.
The New York Times‘ Peter Baker says that in his more than two decades of covering the White House, he cannot recall a time when a reporter’s credentials were revoked because the White House disapproved of coverage. He suggested that Trump called on Acosta at the conference because he welcomed the confrontation.
CNN Business Insider
April 27, 2020: White House Asks CNN Reporter to Move to the Back of Press Briefing Room
A White House official ordered CNN reporter Kaitlan Collins to move from her front-row seat to the back of the press briefing room on April 24th.
According to The Washington Post, Collins and another reporter refused to swap seats, both citing seat assignments that were determined by the White House Correspondents’ Association (WHCA), and approved by White House officials in March.
“The major TV networks, including CNN, Fox News and NBC, have seats in the front rows, which makes their reporters more visible in news clips of the briefings. A reassignment to the rear would make a reporter less prominent, though only marginally,” wrote Post media reporter Paul Farhi.
After the two reporters refused to move, the White House official allegedly told the reporters that the matter would be handled by the Secret Service. The Secret Service didn’t intervene, however.
President Donald Trump restarted press briefings when the coronavirus first emerged, and since then, he and his team have tried to find ways to manage press briefings to make Trump appear in a more favorable light, by either punishing his critics or awarding those who support him.
For instance, in early April, now-former press secretary Stephanie Grisham told a reporter that she could continue to come to press briefings even after the reporter defied social distancing rules. The reporter, Chanel Rion, works for One America News Network, a cable news show that supports Trump.
Just a day before the White House official requested the swap, Trump and CNN’s Collins got into a tense verbal exchange after the reporter asked a question about the North Korean dictator Kim Jong Un’s health.
“No, that’s enough,” the President told Collins, adding, “The problem is, you don’t write the truth.” When Collins tried to press her question, “No, not CNN. I told you, CNN is fake news. Don’t talk to me.”
The Washington Post
July 25, 2018: TV Pool Reporter Banned From Open White House Press Event For Asking Question
During a White House photo op with the president of the European Commission, President Trump declined to answer questions called out by network pool reporter Kaitlin Collins about the newly released tapes of his conversations with his former lawyer Michael Cohen and about Vladimir Putin turning down an invitation to the White House. Later, she was told by Press Secretary Sarah Sanders and deputy chief of staff Bill Shine that she would not be allowed to attend an open press event later in the day in the Rose Garden because they deemed her questions at the venue as “inappropriate”.
CNN, other journalists at rival networks, along with the White House Correspondents’ Association, quickly backed Collins by calling out the undeserved penalty.
White House Correspondents’ Association President Olivier Knox issues the following statement:
We strongly condemn the White House’s misguided and inappropriate decision today to bar one of our members from an open press event after she asked questions they did not like. This type of retaliation is wholly inappropriate, wrong-headed, and weak. It cannot stand. Reporters asking questions of powerful government officials, up to and including the President, helps hold those people accountable. In our republic, the WHCA supports the prerogative of all reporters to do their jobs without fear of reprisal from the government.
CNN WHCA Statement
May 23, 2018: Environmental Protection Agency bars select reporters from entering an event where Scott Pruitt, the agency’s chief, was speaking
Reporters from CNN, The Associated Press, and E&E News were barred by the EPA from entering a national summit “of national priority,” while other reporters were allowed inside for Scott Pruitt’s opening remarks after having been invited by the agency the day before. Reporter Ellen Knickermeyer from The Associated Press was grabbed and pushed out of the building after she asked to speak with an EPA public relations person. An EPA official later called Knickermeyer to apologize.
EPA spokesman Jahan Wilcox said that space limitations inside the venue would only allow them to accommodate 10 reporters and that there would be a live stream for those that could not attend. But The Hill reported that a handful of seats were vacant in the press section by the time Pruitt began speaking. Another reporter told Politico there were dozens of available seats in the room. The EPA later announced that reporters would be allowed to attend the afternoon sessions of the summit.
News organizations responded with indignation.
“While several news organizations were permitted, the EPA selectively excluded CNN and other media outlets. We understand the importance of an open and free press and we hope the EPA does, too,” a CNN spokesperson said in a statement.
Executive Editor of AP Sally Buzbee said, “The Environmental Protection Agency’s selective barring of news organizations, including the AP, from covering today’s meeting is alarming and a direct threat to the public’s right to know about what is happening inside their government. It is particularly distressing that any journalist trying to cover an event in the public interest would be forcibly removed.”
Associated PressCNNThe Hill
Sept. 4, 2017: Trump Government Agency Calls Erroneous Hurricane Coverage “Yellow Journalism”
Associated Press reporter Michael Biesecker was singled out for erroneously reporting on fragility of the toxic sites in Houston affected by Hurricane Harvey. According to the AP piece, “Houston metro area has more than a dozen Superfund sites, designated by the Environmental Protection Agency as being among America’s most intensely contaminated places. Many are now flooded, with the risk that waters were stirring dangerous sediment.” The EPA Associate Administrator, Liz Bowman, responded, “Once again, in an attempt to mislead Americans, the Associated Press is cherry-picking facts, as EPA is monitoring Superfund sites around Houston and we have a team of experts on the ground working with our state and local counterparts responding to Hurricane Harvey. Anything to the contrary is yellow journalism.”
Politico Associated Press
May 16, 2017: Trump Team Battles Press
During an embattled week of scandal after scandal, Republican operatives —from former House Speaker Newt Gingrich to television host Sean Hannity—have decried the media’s treatment of the president, and speculation has ensued about the future of the White House press briefings. Indeed, many have urged the Trump administration to restructure or suspend the briefings entirely. The New York Times reported that many Trump aides and high level supporters have been seeking to “shift focus onto questions about the use of confidential sources and the credibility of the news media, and away from concerns about Mr. Trump’s behavior.”
New York Times
Feb. 24, 2017: White House Excludes Reporters from Press Briefing
White House Press Secretary Sean Spicer refused to permit reporters from news organizations—The New York Times, the BBC, CNN, Buzzfeed News, The Los Angeles Times, and The Huffington Post—to take part in a White House briefing. The New York Times called it “a highly unusual breach of relations between the White House and its press corps.”
New York Times
Feb. 24, 2017: Dean Baquet, executive editor of The New York Times, protests the exclusion of the Times from a White House briefing earlier that day.
Donald Trump’s Relationship with Reporters Pre-Presidency
Nov. 17, 2016: Buzzfeed Reporter Prohibited from Trump Event
Trump campaign officials denied a reporter from Buzzfeed access to an event in Newton, IA. He was also not allowed to enter as a member of the general public.
July 27, 2016: Washington Post Reporter Denied Access as Member of the Public
A Washington Post reporter was denied press credentials to enter a Trump event in Milwaukee. At the time, a six-week old ban on Washington Post reporters covering Trump rallies was in effect. The reporter entered the event with the general public, but when confronted by private security and local police, he was prohibited from attending.
June 13, 2016: Daily Beast Reporters Denied Credentials
Daily Beast reporters were rejected in November 2015 from Trump events in response to an editor endorsing a boycott of Trump businesses. The exclusion continued into 2016.
June 13, 2016: List of Publications Blacklisted by the Trump Campaign by mid-July 2016
June 12, 2016: Donald Trump Revokes Credentials of Washington Post
Republican Presidential candidate Donald Trump announced that was revoking the credentials of The Washington Post to cover his campaign. He said it was “based on the incredibly inaccurate coverage and reporting of the record setting Trump campaign…”
June 2, 2016: Politico Reporter Ejected from Trump Campaign Event
A Trump campaign staffer and security guard order a reporter for Politico to leave an event in San Jose. This came two days after a news conference in which Trump referred to an ABC reporter as “sleaze.”
Jan. 15, 2016: New York Times Reporter Removed from Trump Event
Trump staffers and a police officer ejected a New York Times reporter from a primary campaign event at a pizza restaurant in Waukee, Iowa.
Oct. 23, 2015: Trump Campaign Denies Access for Univision
After Trump sues Univision for backing out of covering the Miss Universe contest, Trump denies access to its reporters at campaign events.
July 24, 2015: Des Moines Register Denied Press Credentials to Cover Trump
Corey Lewandowski, the national campaign manager, told a Register reporter that she would not be granted access for an upcoming event in Iowa. He said the decision was “based on the editorial that they wrote earlier in the week,” which urged Trump to exit the primary campaign.
The Des Moines Register
These cases involve access for journalists to official actions of public officials, not to campaign events such as held by a public figure such as Donald Trump before he became President.
Nicholas v. City of New York, United States District Court for the Southern District of New York, February 27, 2017
Jason Nicholas, a photojournalist, argued that his First Amendment rights were denied by the New York Police Department, which he said revoked his press credentials because it disagreed with the content of his work.
In a preliminary ruling, Judge Oetken wrote: “It has been held impermissible 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. . . Equal press access is critical because ‘[e]xclusion of an individual reporter . . . carries with it “the danger that granting favorable treatment to certain members of the media allows the government to influence the type of substantive media coverage that public events will receive,” which effectively harms the public.’” Courts thus recognize that equal access of the press is necessary in order to prevent government officials from ‘affect[ing] the content or tenor of the news by choreographing which news organizations have access to relevant information.’”
Sherrill v. Knight, 569 F.2d 124, United States Court of Appeals for the District of Columbia, 1977
A reporter denied a press pass for the White House challenged the denial as a violation of the First and Fifth Amendments. Judge McGowan wrote: “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.”
Borreca v. Fasi, 369 F. Supp. 906, United States District Court for Hawaii, 1974
Richard Borreca, a reporter for the Honolulu Star-Bulletin, was denied access to news conferences held by Mayor Frank Fasi of Honolulu in his office. The mayor, according to the court, “concluded that Borreca was irresponsible, inaccurate, biased, and malicious in reporting on the mayor and the city administration.” The court issued a preliminary injunction to prevent the reporter’s exclusion.
Judge King wrote: “A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective. They are subject to criticism, and the right of a governmental official to criticize is within First Amendment guarantees. But when criticism transforms into an attempt to use the powers of governmental office to intimidate or to discipline the press or one of its members because of what appears in print, a compelling governmental interest that cannot be served by less restrictive means must be shown for such use to meet Constitutional standards. No compelling governmental interest has been shown or even claimed here.”