Freedom of the press is a fundamental right

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When the White House revoked the press credentials of CNN reporter Jim Acosta, in response to the resulting lawsuit, the Trump administration argued that they have “broad discretion” to deny reporters access.

Nothing could be farther from the truth.

The White House is public property. For the Trump administration to treat it as if it is its own private property runs counter to American law. The White House belongs to the people, not the President. And so to ban the people from the White House without a legally-allowable cause is unlawful.

When the government is acting, its actions are limited by the rights of the American people. For example, I work at a public, state university. As a result, my employer, the state, cannot randomly drug test me. My rights are protected from unreasonable search and seizure by the Fourth Amendment to the Constitution. If I worked for a private university, however, there would be no such restriction.

It is important to talk here about the nature of rights. In our system, rights are not something granted to the people by the government. That is the case in a monarchy, where the ruler gains legitimacy from God. But we fought a war to clearly declare ourselves NOT a monarchy.

Our Constitution, starting with the words “we the people,” is an agreement among the people of our country that we cede some of our freedom to the government in order that we have a successful, civilized, society. A “more perfect Union,” as the Constitution states. Therefore, in the United States, power is ceded to the government by the people, and we limit that power with the rights that we reserve to ourselves.

Our rights are enumerated in a number of places, and some rights are read into the Constitution. The right to privacy, for example, that guarantees Americans the right to marry who we want, to have sex with whom we want, and to have children when we want, is actually specifically stated nowhere in the Constitution. Instead, jurisprudence has understood that right to exist based upon the logic underlying the Constitution. After all, what would be the basis for us to restrict government action if we did not want to protect a sacred area that belongs only to us — in other words, our privacy. This logic has been called “substantive due process.”

Despite the fact that privacy is not specifically enumerated in the Constitution, it is considered a fundamental right. Other fundamental rights are those specifically stated in the Bill of Rights, such as the right to bear arms, the right to the free exercise of your religion, and the right to free expression — which encompasses freedom of the press.

People who argue that no rights are absolute are quite right. Into our constitution is built a tension between protecting the rights of the individual against the needs of society as a whole. Adjudicating that tension is the role of our courts.

The classic case of a limitation of an absolute right involves yelling “FIRE!” in a crowded theater. Obviously, the right to say what you want is fundamental, but the panic and threat to peaceable society that such speech would create outweighs the individual’s speech rights. This is the process courts go through when they determine the limits to government’s power: at what point do the individual’s rights create such a threat to the health, safety and welfare of society that they must be limited?

To help them determine when individual’s rights should or should not be protected against the power of government, courts have adopted a balancing test with different standards based upon the right that is being infringed upon. Fundamental rights deserve the most stringent standard so they are only infringed upon in the most limited circumstances. This high burden is referred to as “strict scrutiny.”

Strict scrutiny demands that the individual’s rights be protected unless there is a compelling government interest at issue. Examples of such compelling interests include national security, preserving the lives of a large number of individuals, and not violating explicit constitutional protections.

Furthermore, for a government action that infringes upon a fundamental right to survive strict scrutiny, the action must be narrowly tailored to protect that compelling government interest. If the action is overbroad, in other words if there is some other way to achieve this protection of the compelling government interest that does not infringe upon an individual’s fundamental right, the Court will rule that the government has exceeded its Constitutionally allowed authority.

In this case, we have the Administration claiming that Acosta deserved to have his credentials withdrawn due to the need for “decorum” in the White House. However, as we have established, freedom of expression, and thus the press, is expressly guaranteed by the First Amendment to the Constitution. As a result, it is a fundamental right.

Like any fundamental right, that right is limited if the government has a compelling interest. I don’t think anyone would argue that the President not being confronted by rude reporters is a “compelling government interest.” This is not an example of national security, or the safety of a large number of individuals. This is simply a thin-skinned elected official who does not want to be questioned about his policies. If anything, our system demands that he not be protected from such discomfort. Our politicians are supposed to be responsive to the people, not vice-versa.

I remember back in the 1980s and 1990s when Sam Donaldson was the White House correspondent from ABC News. He regularly hectored Presidents and White House Press Secretaries who did their best to avoid his questions. Nobody ever thought about revoking his press pass, however, because it was understood that politicians should be able to answer tough questions from the press.

The fact that this White House seeks to shield the President from tough questions just shows how thin-skinned he is. Furthermore, their actions to achieve that goal are clearly Constitutional violations, and that conclusion is bolstered by the judgment the Court ultimately rendered on this issue.

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Mike is an Assistant Professor of Management for Legal and Ethical Studies at Oakland U. Mike combines his scholarship with practical experience in politics.

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