President Donald Trump’s war on the news media violates the spirit of the free press. How far can he go before he violates the letter of the First Amendment? Case in point: the exclusion of CNN, the New York Times, Politico and other media outlets from a White House press briefing Friday. It violates the basic constitutional ideal that the government can’t discriminate among various speakers on the basis of their viewpoints. Under existing case law, however, the exclusion probably doesn’t violate the Constitution, because the news outlets remain free to speak despite losing a degree of access.

To see why the White House’s actions were so constitutionally pernicious, begin with the US Supreme Court’s modern interpretation of the First Amendment. The core concept is that the government can’t target certain ideas because of the perspective that they embody. The court calls this “viewpoint discrimination.” And it’s considered so serious a violation of free speech that it applies in areas that were traditionally considered exempt from the First Amendment, such as obscenity and libel.

If the goal of the First Amendment is to facilitate a free marketplace of ideas, viewpoint discrimination puts the government’s thumb on the scale to the benefit of some ideas and the detriment of others. It makes the marketplace unfree.

If you prefer to think of the purpose of free speech as facilitating political participation by all citizens, viewpoint discrimination is equally wrong. Instead of allowing all ideas to contend to produce the political truth that will guide policy, viewpoint discrimination favors those with certain political ideas over others who disagree.

Plainly, then, the exclusion of some news media from Friday’s off-camera “gaggle” with press secretary Sean Spicer violates the ideal that the government should preserve viewpoint neutrality. The whole point of excluding those news organizations was to punish them for expressing ideas Trump doesn’t like and to favor alternative organizations the president prefers.

The exclusion comes close to violating existing First Amendment law. Certainly the government couldn’t condition the exercise of a First Amendment right on a news organization’s viewpoint. If reporters are allowed to participate in certain conversations -- and therefore report firsthand on them -- only if they take the government line, that could be construed as an unconstitutional condition on their speech.

Another way that the exclusion could be seen to violate existing doctrine is if the press gaggle is understood as a government-created forum for conversation with a White House representative. In such a “limited public forum,” the government may choose the subject matter. But it’s flatly prohibited from discriminating against certain participants on the basis of their viewpoints.

The counterargument to both approaches would be that the excluded organizations aren’t being prohibited from saying whatever they want. They’re just being denied access. And there’s no constitutional right to a private audience with a government official, even an official spokesman.

For example, the president can certainly choose among various possible interviewers -- and may lawfully consider the interviewer’s viewpoint in making that decision.

A court applying current doctrine might well adopt this narrow conception of the informal press gaggle. But that approach shows the limits of interpreting the First Amendment in the light of past practice when the president is devoted to finding new ways to limit the press.

In practice, blocking access for some organizations while providing preferred access for others is intended precisely to affect what the excluded organizations say. If you’re in the room, you can report on what was said directly, without quoting another source.

What’s more, the news organizations aren’t passive recipients of whatever the spokesperson happens to say. The gaggle is a dialogue in which the questions may matter as much as the answers.

In that sense, the reporters participating in the gaggle aren’t just passively listening. They’re actively speaking. Limiting attendance to preferred news organizations is deeply in conflict with principle of viewpoint discrimination.

The Trump administration may think it’s being cute by limiting press access without directly prohibiting speech. But a president who says he loves the First Amendment should be held to the standard of loving its values, not just its technical rules as currently interpreted.

The courts should be open to a broader interpretation of the First Amendment to fit the new challenges of the moment. If they aren’t, the freedom of the press runs the risk of becoming obsolete.


By Noah Feldman

Noah Feldman is a Bloomberg View columnist. -- Ed.