On Monday, October 1, President Trump held a press conference in the rose garden. This was his second press conference within the week – the first being held in New York on Wednesday, September 26 – and both were equally freewheeling and genuine to the Trump we saw campaign before the 2016 election.
An entirely separate blog post could be written about the blatant sexism that Trump displayed during the press conference. Most notably, when he called on ABC News Senior White House Correspondent Cecilia Vega. Trump called on Vega, and as she stood up, said, “She’s shocked that I picked on her. She’s like in a state of shock.” Vega dismissed his comment, saying, “I’m not, thank you.” To which Trump responded:
“That’s okay, I know you’re not thinking, you never do.”
(A note on this comment: this morning, Politico is reporting that the official White House transcript corrected his comment to “That’s okay, I know you’re not thanking, you never do,” which is a blatant falsity.)
This was an abhorrent and misogynistic comment to make to a professional journalist by the President of the United States, and clearly one meant to demean her. Not only did he do this, but he refused to answer her and other female reporters’ questions about the Kavanaugh hearing. After the press conference, Vega tweeted out in response:
A news conference means you get to ask whatever question you want to ask. #FirstAmendment
— Cecilia Vega (@CeciliaVega) October 1, 2018
This brings up the question – does the First Amendment prevent Trump, or any president or government official, from refusing to answer questions from the press? Is that a limitation of Freedom of the Press?
The first thing to consider is why Trump would refuse to answer the question. Is it because of who is asking it, or because of the content of the question? The former came into play in February of last year when the White House refused to give press credentials to certain outlets they deemed to be “fake news,” or rather they felt did not present Trump in a positive way. According to an article by Just Security, an online forum out of NYU Law School, Arthur Eisenberg, the Legal Director of the New York Civil Liberties Union, quoted Justice Thurgood Marshall from the 1972 case Police Department v. Mosley, “The government may not grant the use of a forum to people it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” I would add to this the question of whether he was denying to answer these female reporters’ questions about Kavanaugh due to their gender, which is not implausible given his earlier comments.
In his response to Just Security, Eisenberg continued on to say, “The Court has further recognized that the First Amendment protects not only the right to speak but the right to receive information and to engage in the free exchange of ideas.” This address the latter question posed earlier of whether Trump was refusing to answer the questions because of the content of the question. With the knowledge that the Supreme Court assents with the idea that the First Amendment protects the right to receive information, then Trump refusing to give that information would be in violation of the First Amendment.
Whether anything can be done about that remains to be seen. Just before the White House revoked press credentials from several unliked outlets, a federal judge in Manhattan ruled on a case that a freelance journalist brought forward regarding having his press credentials revoked by the NYPD. Judge Oetken said, “It has been held impermissible to exclude a single television news network from live coverage of mayoral candidates’ headquarters and to withhold White House press passes in a content-based or arbitrary fashion.”
So while the government, it would seem, cannot keep any journalists from attending these limited forums, the question then falls to whether that means they must answer all questions presented. In order to comply with the First Amendment, I believe they do. Whether they will is a whole other story.