The president's house and the public's press

The story before us, as Reason Magazine reports it, is this: the President of the United States sought to exclude CNN, MSNBC, and Politico from the White House press pool on the stated grounds of biased coverage. A federal court responded with a restraining order. The matter is now in litigation. That is precisely where it belongs.

Let me begin with what I know to be settled. The executive controls access to its own premises — this was true in my time, and it remains formally true. No journalist possesses a natural right to stand in the East Room. But the question has never been quite so simple as property law. When the government conditions access on the content of one's reporting — when it says, in effect, cover us favorably or be removed — it is no longer exercising a housekeeping prerogative. It is exercising a censorial one. Those are different instruments, and the Constitution treats them differently.

I was never an absolutist about speech, and I do not pretend to be one now. But I understood — as the Framers understood — that a free press is not merely a convenience of republican government. It is a check upon the very executive power that now seeks to curtail it. That the check is inconvenient to those being checked is not a constitutional argument against it; it is, if anything, evidence that the check is functioning.

What strikes me most, as a matter of judicial temperament, is how well-suited this question is for the courts. The judiciary need not wade into the political dispute between the President and these particular outlets. It need only answer the narrower legal question: does the First Amendment's prohibition on government retaliation for protected speech reach the White House credentialing process? I would expect a court of careful construction to answer yes — and to do so on grounds narrow enough to leave the executive's legitimate housekeeping authority intact. That is the art of deciding no more than the case requires.

I note — as inference, not recollection — that prior courts have addressed press access questions in ways that suggest some constitutional floor below which the executive may not descend. The restraining order reported by both Reason and the Washington Examiner indicates that at least one judge found the journalists' claim sufficiently credible to pause the ban pending fuller argument. That is a measured response. It is precisely the kind of measured response one hopes for: neither the court commandeering the White House's guest list, nor the executive silencing critics behind the shield of property rights.

The lesson I would draw from my own years of diplomatic and judicial work is this: language chosen in anger rarely serves the one who chooses it. A press ban announced as punishment for coverage deemed biased invites every future administration to define bias in its own interest. The precedent, once made, does not retire when the administration does. Those who celebrate the instrument today may find it turned upon their preferred voices tomorrow. The rule of law is only valuable if it applies uniformly — that is not sentiment, it is the entire point of having a rule rather than a preference.

What should be done? The court should resolve the question on its narrowest constitutional grounds, establish a clear standard for when credentialing decisions cross into retaliation, and leave the executive otherwise free to manage its own house. The press, for its part, should argue its case in the courtroom and let the record speak. And the administration would do well to remember that the dignity of the office is not enhanced by the silencing of its critics — it is enhanced by demonstrating that it can withstand them.