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Can Presidents Throw Reporters Out of the White House? · Plausibly Live - The Dave Bowman Show Podcast

0:21
From the on air across America Newsroom, this is your Morning
0:24
News update. CNNMS Now and Politico say they
0:28
are taking the Trump administration to court after
0:30
their reporters were denied access to the White House.
0:33
President Trump accused the organizations of producing fake
0:36
news, yet would say their credentials were revoked without
0:39
notice or an opportunity to appeal.
0:41
The White House had not publicly responded to the announced legal
0:44
action early Monday. United States Southern Command
0:47
says an American strike killed four people aboard A vessel
0:50
suspect of traveling along a Caribbean drug trafficking
0:53
route. The military has not publicly
0:55
released evidence identifying the occupants or cargo.
0:58
Treasury Secretary Scott Besson says the United States has
1:01
proposed an incident alert system with China for artificial
1:05
intelligence events affecting national security.
1:07
No agreement has been announced. The Seahawks defeated Arizona 31
1:11
to 7. Jackson Smith and Jigba caught 3
1:14
touchdown passes, while Seattle's defense held the
1:16
Cardinals to 151 yards. The Mariners beat Colorado 2 to
1:20
one behind 7 scoreless innings from Kate Anderson.
1:24
Closer Andres Munoz left with an apparent arm problem for the On
1:28
Air Across America network. I'm Alex Ross.
1:34
The world is a complicated place.
1:36
Fortunately, Dave Bowman has opinions, some informed, some
1:41
inconvenient, and a few that may require supporting
1:44
documentation, history, politics, and the absurdity of
1:48
modern life. This Well, good morning, good
1:57
evening or good afternoon, wherever you are, whatever you
1:59
do. Lot of things happening in the
2:01
world today, most of them are far beyond our control, you
2:04
might say. So perhaps it's time we took a
2:07
pause and thought about life, thought about the laws of
2:11
gravity, the media, the 5th Amendment, Hollywood.
2:17
Don't touch that dial. Just try to hear me out for a
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little while. Look, the freedom to publish is
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protected by the 1st Amendment. A journalist's continued
2:28
presence in his physical access at the White House once the
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government has created a credential system and granted
2:35
that access, however, is not protected by the 1st Amendment.
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Yes, you heard that correctly. It is actually an interesting
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case that falls not under the 1st Amendment, but under the 5th
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Amendment. What the 5th Amendment have not
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the Doctor Fauci territory? Yeah, it is, but you got to read
3:03
the. Whole.
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Thing don't touch that dial just got to hear me out for a little
3:08
while Not feeling it this morning really hot.
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I don't know what it's cold here.
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OK. I've been griping all summer
3:20
about it being hot and this morning I actually had to I had
3:23
to turn on the heat and you know, if I'm turning on the
3:25
heat, you know that it's cold. Fingers are hurting.
3:30
Text the show 209565 Dave 209-565-3283 e-mail Dave at the
3:37
Dave bowmanshow.com. As you heard in the news, the
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President has announced that CNNMS, NOW and Politico have
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been banned from the White House.
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Now Trump. The President has cited
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dishonesty, persistently negative reporting as the
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reasons for doing this. People are complaining because
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he did not identify a particular story.
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I like there was a phrase Once Upon a time about a dead fish.
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You know, when you, when you smell a dead fish, you don't
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necessarily know which part, which part of the fish stinks.
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I mean, it just, it just smells like dead fish.
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Reporters who arrived at the White House were subsequently
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discovering that their credentials had been revoked,
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disabled. At least some of these reporters
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were required to report were to surrender their badges and 1
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Secret Service officer reportedly again, we don't know
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this. It's a report told one of the
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excluded journalists that the decision came from quote above
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him. Well, no kidding, it came from
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above him. Well, the the Secret Service
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agent isn't deciding who gets. Come on people, that's not
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reporting. Political reporter Cheyenne
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Hazlett, CNN reporter Betsy Cline and Ms. Now reporter
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Akayla Gardner were among those who were denied entry, and
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according to Politico, many White House officials were.
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According to Politico, many White House officials were
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surprised by the announcement and could not explain the
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standards or process behind it. Which is actually the real
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problem. I look, I don't have to like CNN
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and I don't. I have not watched CNN.
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I'd have to since they did away with headline news for sure.
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But I don't consciously remember watching CNN since the Gulf War.
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I've never watched Ms. Now. Politico is one of those things
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that occasionally I click on, but usually it's because
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whatever they're saying is controversially wrong.
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I don't have to admire them. I don't have to agree with them.
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I don't have to watch them to recognize a constitutional issue
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here. Freedom of the press means
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almost nothing if the government can turn around and decide that
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favorable coverage earns access while critical coverage earns
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banishment. But is that what's happening
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here? It's more complicated than
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simply saying the First Amendment gives reporters the
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right to enter the White House. It actually does not.
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In fact, you, you, you could use any kind of reading you want to
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the First Amendment. You won't find that right for
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reporters to enter the White House there.
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It's not. But there is a stronger
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immediate argument under the 5th Amendment.
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Central question comes down to can the president exclude
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journalists from the White House because he believes that the
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reporting is dishonest, hostile or unfair?
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And that's really what this comes down to, doesn't it?
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If the president decides that he doesn't like the reporting, not
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the reporter, but the reporting, can he simply say, well, you
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cannot come in here? There is a common assumption
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that banning reporters is a violation of the freedom of
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press. It's understandable, but it's
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incomplete, certainly from a constitutional standpoint.
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First Amendment protects publishing news and criticism,
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asking hostile or uncomfortable questions, investigations of
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government activity, expressing political viewpoints, and
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gathering news through lawful means.
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But it does not automatically guarantee.
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Listen carefully. A seat in the briefing room.
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It does not guarantee admission to the Oval Office.
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It does not guarantee a personal interview with the President,
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nor does it guarantee membership in the traveling traveling press
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pool. Nor does it guarantee entry into
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every government controlled location.
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Constitution does not ordinarily require a president to speak
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with any given reporter. It does not require that the
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White House has to invite journalists into every meeting
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or every official event. The difficulty begins, however,
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when the government creates A continuing system of access and
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then decides to selectively remove journalists from that
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system. That's where the real problem
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begins. The First Amendment addresses
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the substance of journalism. Covers prevents the government
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from censoring unfavorable reporting.
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Nobody can't imagine that anybody would want that.
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I mean, I assume that the president understands that he
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cannot censor the news. Maybe that's a bad assumption on
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my part. I don't know.
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I've met enough people in my life who think that the
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government can censor the news to concern me.
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But the First Amendment does prevent that.
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It also cannot impose prior restraint on publication.
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It cannot punish you for your viewpoints that have been
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published, and it cannot condition government benefits on
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adopting government approved language, nor can it retaliate,
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Nor can the government retaliate against constitutionally
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protected expression. The 5th Amendment on the other
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hand, yes, it has the whole part about, you know, you know what
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I'm trying to say here, No capital crime, no infamous
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crime, grand juries. It has the part in there about
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non self incrimination and it has a part in there about double
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jeopardy. But when you get down to the end
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of it, it says nor be deprived of life comma, liberty, comma or
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property comma without due process of law.
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Now that's an important phrase, isn't it?
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You cannot. It it's so weird that it gets
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kind of crunched into that Fifth Amendment, which we're so used
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to being used by the likes of Fauci.
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But the Fifth Amendment actually addresses government procedure.
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It you cannot deprive someone of life, liberty or property
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without due process. Now, OK, Dave, we're not.
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We're not depriving them of life.
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Or is is the past their property?
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No. So we're not doing that.
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So what's left? Liberty.
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In the White House context, that means you have to establish a
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procedure, a clear credentialing standard, a notice of alleged
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violations, an explanation of the government's decision, and
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an opportunity for the journalist to respond to that
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before you get a decision based on established rules.
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Rather than simply the president saying I don't like that press
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credential is not property in the ordinary sense.
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Courts have treated access under established credentialing system
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as a protected liberty. This isn't Dave making this up.
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The courts have already decided that that system is a protected
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liberty. This distinction came about in a
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court case back in 1977 called Cheryl, Cheryl versus Knight,
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and it's SHSHERRILLV Knight, Robert.
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Cheryl was a journalist for The Nation.
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He applied for a White House press pass.
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The Secret Service said 9 they would not issue 1 without
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providing any reasoning, any explanation or meaningful
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process through which he could challenge the denial at the
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time. In 1977, the DC Circuit Court
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held that not every journalist has a constitutional right to
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enter the White House. There is no constitutional right
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to be in the White House. Instead, the court did rule,
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however, that the White House had voluntarily opened up
12:14
portions of the complex to bona fide journalists and that access
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is important to the practice of journalism.
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Denial of a press pass could not be based on arbitrary or
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undefined government discretion. The government needed to had to
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publish meaningful standards and a rejected applicant was
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entitled to notice, an opportunity to respond, and a
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written explanation. Once the government establishes
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access for the press, it can't just take that away arbitrarily.
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Application here should be pretty obvious.
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The reporting supplied to us so far indicates that the three
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organizations were not denied credentials during a normal
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application process. The existing access was disabled
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after the President publicly condemn their their coverage.
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Now that makes Shirrell the case here directly relevant.
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Is the White House constitutionally required to
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admit reporters in the 1st place?
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No, it's not. It's that right so-called does
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not exist. But has the White House
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voluntarily created a press access and credential exist
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them? Yes, it has.
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You can spare me the argument that well, we inherited that
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from the previous administrations, probably, But
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the White House in general. On day one, the administration
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could have said we're redoing all this, but they didn't have
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the reporters receive credentials and regularly use
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them. Yes.
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Does the government therefore have unlimited authority to
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confiscate these credentials under the 5th Amendment?
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No, because the liberty interest is protected by the procedural
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due process. When you get into procedural due
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process and you start understanding what that means,
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particularly on the 5th and the 14th Amendments, you, you have
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to start asking the question, was there any due process here
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under the current system? You have to look at what appears
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to have happened. Was there an incident?
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Was there a unilateral White House decision?
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Was the past canceled or was it done constitutionally?
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Was there fair notice? Were there published standards?
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Was there a hearing? Was there a written decision
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issued? When did all of those things
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happen solely based on the available reporting?
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And it's possible we don't have all.
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We don't have both sides of the story.
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Yet the government appears to have gone directly from
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presidential anger, I don't like that to credential confiscation.
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That's almost a textbook illustration of what procedural
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due process is supposed to prevent.
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Presidential power does not become constitutionally harmless
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because the affected institutions are politically
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biased. We all know CNNMS now,
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especially in political or political bias.
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We know that, you know that I know that they know that.
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But constitutional limitations matter most when applying them
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is inconvenient. Trump has used such terms as
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fake news, dishonest press, fiction, lies, purposely
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negative news. I don't personally think that
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he's wrong. I, I, again, I don't watch Cnni
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don't watch CNN because I want news, not opinion.
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If I want opinion, I'll listen to myself or to Bill or or
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somebody else. If I want news, especially if
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it's in the title news network, well, I'm expecting news.
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Those phrases, fake news, dishonest press, fictional lies,
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they may be politically powerful, but they're
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technically not legal standards. What the policy as of today
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cannot presently answer some questions.
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What constitutionally what or what, I'm sorry, what
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constitutes sufficient negative coverage to trigger an
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exclusion? Is that written down anywhere?
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And someone once say to me Once Upon a time, if it's not written
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down, it didn't happen. And you don't want the
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government doing that. You don't want the government to
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just be able to decide. Well, I don't like being called,
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I don't know the waffle. So I'm going to I'm going to
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throw a piss fit about it. That's not good government.
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That's dangerous because what happens tomorrow?
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Who determines whether that report was false or not?
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I can answer that question. The listener should determine
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it. That's pretty easy.
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Must the falsity, must the fake news be deliberate?
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Well, now we're into First Amendment issues here, aren't
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we? Now we're, now we're into that
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because now we is it deliberate? And even if it is is a lie, This
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is what Rod and I were talking about yesterday on what the
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frock is it? Do we need to pre bunk?
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It is an error if a reporter makes an error followed by a
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correction treated differently from an intentional deception.
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Does the rule apply to a reporter, an editor, a program,
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or the entire company? How many objectionable stories
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produce a cumulative violation? Can an outlet challenge the
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administration's factual determination?
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Are supportive organizations held to the same standard?
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A journalist must be able to understand beforehand what
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conduct will cause the loss of access.
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A state, a standard that's invented after the government
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becomes angry, becomes selective enforcement.
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That is a problem because selective enforcement today
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becomes something you don't want tomorrow.
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In 2018, there was a contentious press conference, you probably
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remember this, between Jim Acosta and the president.
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And after that, the White House revoked Acosta's hard pass.
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The government administration pointed to his interaction with
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the White House in turn, but did not provide any clear,
18:44
established standards for press conference conduct or a
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meaningful procedure before revocation.
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Say what you will about the way the old thing used to work, but
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there used to be standards for this stuff.
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Maybe they were written, maybe they were unwritten, but they
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were they were they were behavioral standards, but those
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standards are not clear anymore. And of course, a federal judge
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ordered the credential temporarily restored on due
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process grounds. The government cannot revoke
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credentials 1st and then invent the government standard
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afterwards. That's the important part here.
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And I'm pretty sure that after this interaction and after this
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next interaction, President Trump knows that in 2019-2020,
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Playboy correspondent Brian Kerrum received a temporary
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suspension after a verbal confrontation in the Rose
19:35
Garden. After that, the DC Circuit Court
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concluded that the White House had prevail had failed to
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provide fair notice of this conduct that would result in
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suspension. General expectations of, quote,
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professionalism are nice and they sound great, but they are
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insufficiently precise. Even abrasive, theatrical or
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discourteous behavior is not enough when the government has
19:59
not defined the prohibited conduct.
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This latest exclusion appears to be much more broad.
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It seems to apply to entire news organizations, It is expressly
20:16
linked to their reporting, which is disliked, and it was not tied
20:21
to any physical misconduct. It apparently lacks individual
20:25
findings, and it threatens additional organizations with
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future exclusions. Even as a conservative, as
20:33
someone who voted for Trump three times, that's difficult to
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defend. If there was a specific
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incident, sure, no problem. But if the if the incident is I
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don't like what you said and the government starts violating due
20:52
process, that's a problem, folks.
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You may not like that, but it is.
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The danger is using the word professionalism as a legal
21:05
standard. The White House is perfectly
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capable of imposing reasonable rules necessary for safety and
21:14
order. Don't enter this area without
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authorization. Do not make physical contact
21:19
with officials. Yield a shared microphone after
21:23
a you know, after a specified warning.
21:25
Don't interrupt classified briefings.
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And do what the the Secret Service says, especially if it's
21:32
about security. But unconstitutional standards
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would clearly include things like you must treat the
21:39
president fairly. What does that mean?
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Maintain professional, appropriate professionalism.
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Sounds great. What does it mean?
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And then saying things like do not publish dishonest coverage,
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avoid excessively negative reporting, ask appropriate
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questions, show proper respect for the office.
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All these things are objective rules regulating behavior.
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But but now you have subjective rules that regulate attitude and
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viewpoint, and that's not good. A rule against entering A strict
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restricted security zone is easily applied consistently.
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A rule against quote unfairness allows the president to punish
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whatever journalist he has a a beef with at any given
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particular moment, and that's problematic.
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Historically, non disclosure agreements which are also
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involved here, such as the standard Form 312, were directed
22:43
towards classified information. The press has no general
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constitutional power to comply or to compel an unwilling
22:51
official to speak. But when the government
22:53
categorically prevents willing officials from sharing lawful,
22:56
unclassified information, as has appeared to happen here, the
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analysis changes. Is the government restraining
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the employees right to speak? The press's ability to gather
23:07
news, the public's ability to receive information?
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Those are questions that we don't all have, we don't have
23:15
all the answers to. But how?
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No matter how you look at this, there is a weakness in a purely
23:22
procedural defense. This perhaps the most
23:28
interesting limitation of the 5th Amendment argument.
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Due process requires a fair procedure.
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It does not automatically invalidate every substantive
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rule. Suppose, for example, the White
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House now adopts a written rule. Let's say any reporter whose
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organization publishes material the President considers false
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shall lose White House access after a written notice.
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The White House may provide a notice, a hearing, a written
23:55
decision that would improve the procedure, but it would not
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necessarily make the the the policy constitutional.
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Why? Because the rule could still
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potentially punish critical reporting, editorial judgment,
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disfavored viewpoints, refusal to adopt government preferred
24:11
language. And at that point, the central
24:13
claim would move back to the First Amendment.
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The government can sometimes satisfy procedural due process
24:20
while enforcing an unconstitutional policy.
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That's why you have been back to the First Amendment.
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The 5th Amendment can require the White House to explain what
24:30
it's doing. The First Amendment would
24:32
ultimately determine whether the White House is allowed to do
24:36
that at all. And therein lies some of the
24:39
issues. Look again.
24:43
The press has no absolute right. It doesn't exist to enter every
24:50
White House space. The president is not required to
24:53
grant interviews to CNNMS, Now political, Fox News, or anyone
24:57
else. But once the White House
25:00
establishes A credential system of regular press access, you
25:04
can't administer that policy arbitrarily.
25:09
Existing credentials cannot simply be revoked without clear
25:12
standards. Notice an opportunity to
25:14
respond, an explanation. You know, due process, even
25:21
adequate procedures may not save a ban because they're imposed
25:27
because we don't like the viewpoint.
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Those are problems. Look, CNNMS. Now political
25:35
journalists are reasonably criticized for their for their
25:40
positions. But as always, the answer to bad
25:44
speech is good speech. If their reporting is so bad,
25:49
shouldn't be that, he's said, shouldn't be that easy to
25:52
disprove, right? But if the president can just
25:55
change things because he doesn't like it, well, that's
26:01
potentially a problem, isn't it? Certainly is to me.
26:06
Stay with us, We'll be right back.
26:40
So late last week, California Governor Gavin Newsom signed a
26:46
bill addressing a quote, catch, UN quote in a $750 million tax
26:52
credit for Hollywood. So he's responding to a genuine
27:04
decline in California's entertainment industry.
27:07
But it's it's a fact. It's happened.
27:10
But the solution that he has chosen here is perfectly
27:15
illustrative, illustrative, illustrative of the fundamental
27:23
weakness of his progressive economic policy.
27:29
Think about what he's done here. He has created in California in
27:34
general, not just Gavin Newsom, but governors before him have
27:38
created burdens on every business with high costs, high
27:43
taxes high. You know, it's not cheap to run
27:46
a business in California. And then when it turns out, oh,
27:51
my God, this is this is hurting people.
27:53
We offer selective relief to politically favored industries,
28:00
right? Film and production studios have
28:03
been leaving California for years.
28:04
I mean this, there's no two ways about that.
28:08
The productions are increasingly moving to places like Georgia,
28:10
New York, Canada, Britain, other locations that are offering
28:14
better incentives for for filmmaking.
28:16
California after 2022 lost 17,000 entertainment jobs in Los
28:23
Angeles. Production has approached record
28:25
low levels. And the answer here has become
28:31
expansion of state tax credits. Now, there's something you need
28:35
to keep in mind here. If California's business
28:39
climate, and this is what Newsom keeps saying, is so successful,
28:43
why does he have to create tax breaks to keep Hollywood there?
28:49
California had already increased its annual film and television
28:51
tax credit programs from 330 million to $750 million.
28:56
Now you understand what a tax credit is, right?
28:58
It's free money for selective people.
29:03
In other words, this governor signed off on a bill that gave
29:07
his friends in the film industry $750 million in exchange for
29:13
their agreed agreement to not leave the new legislation that
29:19
he has signed. He makes some credits more
29:20
valuable and easier for them to use.
29:23
A certain independent productions will receive relief.
29:27
These new credit cover things like editing, sound, music,
29:30
visual effects, finishing films and and you'll notice something
29:34
important here. They're not necessarily talking
29:37
about actors and production companies.
29:39
They're talking about the people who work on these films, which
29:43
is a lot of people. I don't think we understand
29:45
that. So you see your favorite actor
29:48
up there on the screen, the big screen, but you do you ever
29:51
think about what goes into that and everything down to who
29:57
brought the trailer, who who built the trailer that the that
30:00
the actor lives in, who cleans it?
30:02
Who brings them their food? There are a lot of things that
30:07
go into this that don't necessarily get covered.
30:10
I think one of the best examples showing all this that I've ever
30:13
seen. There was a season of Archer,
30:16
the cartoon Archer, where one of the one of the guest characters
30:21
was a movie producer. And they, they, the story takes
30:26
place on scene where they're filming a movie.
30:28
And it's like, you don't really understand how many people are
30:32
there watching all this stuff and helping all this stuff and
30:35
doing all this stuff. And that's before the film even
30:37
gets developed, gets edited, gets added music, musicians who
30:42
have to play the music that goes all of this.
30:44
Of course, that's kind of going away too.
30:46
But Newsom looks at this and sees an entertainment industry
30:52
that generally is more than just actors, directors and studios
30:56
executives. It has editors, drivers,
30:58
carpenters, electricians, costumers, musicians, caterers,
31:02
technicians, all this other stuff, and fears that subsidized
31:07
competition from other States and foreign countries will allow
31:09
the industry to collapse. And of course, if it does, that
31:12
harms working families and related businesses in
31:14
California. And it flies in the face of his
31:16
position that California is great, which he doesn't want.
31:25
It also means that some of those people will leave to go work in
31:28
these other places, which means they wouldn't be voting for him.
31:33
His idea here is that a targeted incentive might preserve jobs
31:37
and generate economic activity that might actually exceed the
31:42
immediate cost. It might produce more than $750
31:44
million worth. Newsom has correctly identified
31:47
the real problem. However, what he hasn't done is
31:53
come up with a solution that actually works, which is very
31:56
simple. If letting Hollywood keep some
32:01
of their money because, well, it's good for the it's good for
32:07
the whole system here. If letting Hollywood keep some
32:10
money is good, why isn't letting every business keep some of
32:16
their money good? It's crony capitalism.
32:18
In other words, Hollywood is one of California's most politically
32:22
influential industries, and state officials are now deciding
32:26
which productions qualify how much assistance they receive.
32:30
Smaller businesses might enjoy that as well.
32:34
Restaurants, manufacturers, retailers, farmers, independent
32:37
contracts are all facing the same high cost environment.
32:40
But they're not getting the Hollywood sighs relief, are
32:42
they? If, if, if Gavin Newsom can use
32:46
the tax code to benefit his friends, why isn't he doing it
32:53
to benefit everyone in California?
32:57
He's operating what is not a general a genuinely free market.
33:02
The better alternative would have been to reduce taxes and
33:05
regulatory costs for every Californian, every California
33:08
business and employee, and address energy and housing costs
33:13
that make California labor more expensive.
33:16
His actions may, for the time being, preserve some
33:19
entertainment jobs, and he only cares about them through the
33:21
election of 2028. But that benefit should be
33:25
acknowledged, and it doesn't repair California's failing
33:28
economic model, it actually reinforces it.
33:32
If lowering a company's tax burden creates jobs in
33:35
Hollywood, then lowering the tax burden creates jobs everywhere.
33:39
The answer is not special treatment for California's most
33:42
politically connected. The answer is a California in
33:48
which nobody needs the governor's permission to remain
33:52
economically competitive. Makes sense to me.
33:58
Take the time right now. Tell the people that matter in
34:00
your life you love them very much.
34:01
You'd miss them if they weren't there.
34:02
So don't pass up those opportunities.
34:04
You don't want to have that regret Plausibly Live.
34:07
I'm Dave Bowman and we will see you tomorrow for a new episode
34:11
of Plausibly Live, The Dave Bowman Show right here on the On
34:13
Air America of On Air Across America network.