Media critic

Corporate media outlets prefer to keep themselves out of the headlines, particularly when it comes to clashes with politicians. Off the record, their reps will insist. The reporting speaks for itself.

The rise of Donald Trump — and his gratuitous attacks on the media — has banished any such aversion in the C suite of CNN. When Trump called CNN “fake news” days before his inauguration, the network jumped in to defend its reporting and correspondent Jim Acosta. After President Trump tweeted a video of him wrestling “CNN” to the ground, the company riffed, “It is a sad day when the President of the United States encourages violence against reporters. Clearly, Sarah Huckabee Sanders lied when she said the President had never done so. Instead of preparing for his overseas trip, his first meeting with Vladimir Putin, ‎dealing with North Korea and working on his health care bill, he is involved in juvenile behavior far below the dignity of his office. We will keep doing our jobs. He should start doing his.”

In November 2017, he attacked CNN International, so the company said, “It’s not CNN’s job to represent the U.S to the world. That’s yours. Our job is to report the news.” In December 2017, Trump called host Don Lemon the “dumbest man on television,” so the company said, “In a world where bullies torment kids on social media to devastating effect on a regular basis with insults and name calling, it is sad to see our president engaging in the very same behavior himself. Leaders should lead by example.” And in April of this year, he went after CNN Worldwide President Jeff Zucker, so the company said, “Once again, false. The personal political beliefs of CNN’s employees are of no interest to us. Their pursuit of the truth is our only concern. Also, Jeff’s last name is spelled Z-U-C-K-E-R. Those are the facts. #FactsFirst.”

So after CNN reporter Kaitlan Collins was barred from an open-to-media event on Wednesday — not long after she asked pointed questions about current Trump scandals at a White House “pool spray” — CNN’s public-relations statement factory once again whirred into gear:

Viewed in isolation, the statements might suggest CNN is hostile toward the president. Viewed in context though, they look mild and even-handed, considering that they all come in response to mindless, reckless attacks from Trump. CNN finds itself in a position that Trump himself relishes: It has become the counterpuncher to the “counterpuncher.”

For how much longer, though, will statements suffice? The unacceptable conduct, after all, isn’t always rhetorical. In February 2017, CNN was among the outlets shut out of a press gaggle, prompting host Jake Tapper to fume on air, “It’s not acceptable.” In December 2017, White House correspondent Jim Acosta reported that press secretary Sarah Huckabee Sanders issued an access threat at a ceremonial event. In May, CNN was among the outlets prevented from attending an important event at the Environmental Protection Agency. The network’s statement at the time: “Today, CNN was turned away from covering the PFAS National Leadership Summit at the EPA after multiple attempts to attend. While several news organizations were permitted, the EPA selectively excluded CNN and other media outlets. We understand the importance of an open and free press and we hope the EPA does, too.”

CNN is sui generis as a target of Trump’s onslaught against the press. It’s a serially abusive situation.

Moving beyond scathing corporate statements and tweets into legal actions is fraught. “Although it’s doubtful there was a First Amendment right of access for Collins to attend the media event, the action amounts to everything the First Amendment stands against — namely, viewpoint-based discrimination and government censorship of the press,” notes Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida. “The argument in her favor is that the government creates what courts call a designated public forum at media events open generally to members of the press and that it cannot, in turn, discriminate against reporters based on their viewpoints or, here, their past questions once it creates those events.”

Such skepticism is rooted in case law: Back in 2004, then-Maryland Gov. Robert Ehrlich (R) issued a ban on state executive-branch employees from speaking with two journalists from the Baltimore Sun. So the Baltimore Sun sued and lost. An appeals court ruling reasoned, “The Sun conceded that a public official’s selective preferential communication to his favorite reporter or reporters would not give the much larger class of unrewarded reporters retaliatory claims. This concession acknowledges that government officials frequently and without liability evaluate reporters and reward them with advantages of access.”

However! In the 1970s, Edward Hanna, the rabidly anti-media mayor of Utica, N.Y., received a brush-back from a federal judge after he stiff-armed reporters from two Gannett newspapers, the Observer-Dispatch and the Daily Press, according to an archived newsletter of the Reporters Committee for Freedom of the Press (RCFP). “After a second incident in which reporters were kept out of Hanna’s office, the newspapers asked a federal district court to enjoin the mayor from such actions as violations of the Civil Rights Act and of the First Amendment. The court ordered the mayor not to pass any regulations which would discriminate against the Utica papers or their reporters,” noted the newsletter. At one point, Hanna dissed local reporters in favor of a reporter from the New York Times. My, how times have changed for anti-media caudillos.

Bruce Brown, executive director of RCFP, tells the Erik Wemple Blog that outlets working under possibly discriminatory access constraints face a tough choice. “The news organization may decide it’s better for us to just come back the next day and go back at it,” says Brown. “If they’ve looked back and realize they have five or six incidents, where content is being used to guide press office actions, then at some point the news organization may decide we’ve had enough here” and file an action against the gatekeepers. In the case of CNN and the White House, the suit would likely be what’s known as a Bivens action, so named for a plaintiff who alleged that people acting on behalf of the federal government deprived him of his constitutional rights. In CNN’s case, the action would relate to First Amendment rights. A goal of such a suit would be to secure an injunction essentially ordering the government to allow access to press events, says Brown.

A far better solution — for CNN, for democracy — would be for the White House to behave like adults. That’s a tough thing for any organization headed by Trump, for it requires discipline and restraint. “Fair access via the [White House] press corps hinges on forbearance, not law. It is an informal norm, not a written-down rule. Legally, the president can grant access only to friendly media and deny it to critics,” notes Steve Levitsky, a professor of government at Harvard University who recently co-authored a book on how democracies die. “This is yet another instance in which the day-to-day functioning of our democracy hinges on informal rules, not just the Constitution. And these informal rules are now being challenged.”