The press as an institution of accountability

The CNBC report tells us that CNN, MSNBC, and Politico have sued the Trump administration, asking a court to overturn a ban that excludes them from the White House press pool — and that the television pool has responded by suspending its own coverage of the President in solidarity. This is, at its core, a question about the relationship between executive power and the public's claim on knowledge of its own government. It deserves careful construction, not partisan heat.

In my own time, I wrote — and I will not pretend to recollect circumstances I did not live — that a republic depends upon an informed people. The press serves as that people's surrogate in rooms they cannot themselves enter. When a government excludes particular voices not because they have violated a lawful condition of access, but because their reporting has displeased the executive, the government is not regulating conduct; it is punishing expression. Those are categorically different acts, and the law ought to treat them as such.

The judicial question

The litigants have gone to court — which is precisely where such a dispute belongs. I am gratified by that instinct. When the executive and a private party disagree about the scope of executive authority, the proper remedy is not popular agitation or retaliatory silence; it is a petition, properly framed, to a tribunal with jurisdiction. The courts will now have to determine whether a credentialed press organization holds something more than a revocable license — whether access, once established as the ordinary condition of White House coverage, carries with it a procedural right not to be withdrawn for expressive reasons alone.

I would note, as inference rather than recollection, that American courts have over the decades developed doctrine on this precise question: that viewpoint-based exclusion from a forum the government has opened to the press generally raises serious constitutional concerns. The plaintiffs are not asking for immunity from criticism or for a guarantee of favorable coverage — they are asking only that the door not be shut because of what they have reported. That is a narrow and legitimate claim.

The pool's solidarity and the question of proportionality

The television pool's decision to suspend its own coverage is a matter of professional solidarity, and I will leave aesthetic judgments about tactics to others. What I will observe is this: when institutions act in concert to resist what they perceive as an unlawful exclusion, they are exercising a collective voice — which is itself a form of expression the law protects. Whether it is wise, proportionate, or ultimately effective is a question of practical diplomacy, not of constitutional principle.

What the courts should do — and what they should not

The judiciary's task here is clear in its shape, if not in its specifics. The courts should examine whether the exclusion was content-neutral and procedurally regular, or whether it was, as the plaintiffs allege, a penalty imposed for disfavored expression. If the latter, the precedent set by permitting it would be corrosive: every future administration of every disposition would inherit the claimed power to curate its own coverage by excluding those who report inconvenient truths.

What the courts should not do is reach beyond the case before them — issuing broad pronouncements about press freedom in the abstract, or about the character of the parties, that exceed what the facts and the pleadings require. Judicial restraint means deciding the case; it does not mean deciding every case imaginable. A narrow, well-reasoned ruling that the exclusion violated the plaintiffs' procedural rights, if that is what the evidence supports, would do more lasting good than a sweeping declaration.

The public faith in the judiciary rests on its reputation for deciding by principle rather than by preference. This case will test that reputation. I expect the courts to meet it — and I would counsel every party, press and executive alike, to allow them the space to do so without further inflaming a quarrel that law, not passion, is best equipped to resolve.