The President’s War on Fox

/ October 23, 2009 in The League # # #

Transplanted Lawyer has the first – and thus far, only – truly sane take I’ve seen on the matter.  I was thinking about writing a post on this subject, but T.L.’s post says all that really should or can be said.  Say what you will about Fox News, but it is simply not the position, right, or responsibility of the Obama Administration to decide which news organizations are and are not “legitimate.”  Please do read the whole thing.

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63 thoughts on “The President’s War on Fox”

    • to ChrisWWW

      I’m not convinced. Even granting everything Kaus says about Fox News as true, the problem is that it is not the role of government to make decisions about what media is and is not sufficiently independent to warrant talking to. If this were the middle of a campaign, there’d be nothing wrong with playing favorites among the media. And I’m not so naive as to be unaware that elected officials have been using access as a way of influencing coverage for years (this was, after all, at the root of why coverage of the Bush Administration on torture and other issues was often so timid). For that matter, I don’t even have much of a problem with a Congresslizard acting as the Obama Administration is doing – their actions and statements do not represent official government policy or action. But when you’re outright using the office of the Presidency to differentiate between what is and is not a legitimate news organization, and especially what is and is not an independent news organization, we’ve gone a bridge too far.

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      • to Mark Thompson

        This is an ignorant post.

        “It’s really not news — it’s pushing a point of view. And the bigger thing is that other news organizations like yours ought not to treat them that way, and we’re not going to treat them that way. We’re going to appear on their shows. We’re going to participate but understanding that they represent a point of view.” — David Axelrod

        It might be fair to say that the White House isn’t the best positioned to make this case, but it really enrages me when we judge an argument by whether “someone is in a position to make it” or by whether it is felicitously phrased. Fox News is not, by the most generous accounting, a news organization. When’s the last time it broke a story? It treats Republican Party press releases as unbiased sources, even down to the typos. It parrots wild claims by Republican officials like Betsy McCaughey and Sarah Palin about death panels and the like. And it organized and promoted the Tea Parties, which makes it not a disinterested reporting outfit but a political actor.

        And all that is fine. Free speech, free media. It’s the price of the game. But once you stop being a disinterested observer of the proceedings and become a political actor, you can be criticized just like anyone else in the political arena. And I can’t speak for anyone else, but my problem with Fox News isn’t that it’s delivered from a conservative point of view. The Economist is a conservative publication, and it’s usually on the level. My problem is that Fox News follows no conventionally accepted journalistic standards and yet it asks for the same prestige as, say, CBS News, that usually tries to (however imperfectly).

        I think most bloggers and readers of this site would reject the notion that criticizing Israeli policy is antisemitic. That’s essentially censorship, which always empowers the status quo. But making a political criticism of a political actor deserves only to be judged on its merits, not on who’s making it.

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        • to ChrisWWW

          I would say that excluding it from the press pool is a big problem. But beyond that, yes, I think it true that it is not the place of the office of the President to be making pronouncements as to what is and is not a legitimate news organization or an independent news organization, even if most people would agree with those pronouncements on substance.

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          • to Mark Thompson

            You keep restating this but you don’t actually present an argument. Why can’t a political team criticize another political team? Do you not think Fox News qualifies as a political actor? The blog post you linked to misses the point, in my opinion: the problem isn’t that they’re conservative, the problem is that they don’t do journalism.

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            • to Lev

              The problem is that the President, to the extent he is acting in his official role as President, is not a political team.

              As for whether Fox News does journalism….what journalistic standards are they failing to meet? Is it that they are overly critical and tabloidesque? Is it that they are unbalanced?

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      • to Mark Thompson

        I’m not sure I understand here.

        It’s not like the White House has signed an executive order yanking away Fox’s broadcasting license. Speech may be free, but it has consequences and one of those things is that if you keep slandering people, they won’t want to talk to you at some point.

        Fox is by all accounts simply reaping what its sown.

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        • to Nob Akimoto

          Yes, speech has consequences. The problem is that the President isn’t “people,” he is quite literally the government. If I had more time, I could give a detailed legal argument as to why this is problematic and just barely on the side of what is Constitutionally permissible, while it would not remotely be a problem if instead of the Administration, it were Nancy Pelosi doing this.

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          • to Mark Thompson

            I think I’m done with this thread, because I’m not terribly interested in hearing about what’s constitutionally permissible from someone who thinks that the president is literally the government. What’s the Congress, chopped liver? I guess the Supreme Court has been disbanded as well? The president is the head of one branch of the government. Nancy Pelosi is the head of one of the chambers of another branch of government. They have different powers and responsibilities. None, as far as I’m aware, is prohibited from criticizing journalistic practices. And even if Obama revoked Fox’s press credentials, I think he’d be well within his rights to do so (though I don’t think it would be wise) because the first amendment starts, “Congress shall pass no law…”

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            • to Lev

              There is a huge difference between the Executive and the Legislative branches of government. That which the Executive does is, by definition, official government policy. That which an individual legislator says or does is no more than what that individual legislator says or does.

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                  • to Mark Thompson

                    The primary job of a Congressman is to legislate, no? The Constituional language for each office is virtually identical:

                    “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

                    “The executive Power shall be vested in a President of the United States of America.”

                    If Congresspeople can criticize, why not the President?

                    (Also, it’s worth mentioning that Obama has not personally said anything…)

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                    • to Alex Knapp

                      The President can criticize, sure; but given his Constitutional role, I don’t think it’s off-base to suggest that this is at the very least unseemly. Moreover, when the President starts arbitrarily controlling access to government officials based on the viewpoint of the media outlet, it’s a much closer issue. I still think it comes down on the side of Constitutional, especially since a “czar” is a Presidential advisor rather than an agency official. But if it went a step further to, say, becoming a pronouncement that no government official above the Deputy Secretary level shall interview with Fox News, you very well may wind up in a Constitutional violation, with or without a formal Executive Order. And while the President himself has not stated many of these things, his press secretary has; for Constitutional purposes, the pronouncements of the press secretary are almost certainly attributable to the President.

                      The other significant difference here is that legislative powers are granted to Congress as a whole, not individual Congresslizards – the actions of one Congresslizard thus cannot represent Congress or official government policy. The executive power, which again is responsible for implementing the policies of the United States such that its actions can fairly be said to represent the policies of the United States, is vested solely in the President (who obviously can delegate his authority).

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          • to Mark Thompson

            There’s no constitutional issue here.

            I don’t recall there being a constitutional right to access to the executive branch to slander them.

            Remember, first amendment is quite clear who it’s prohibiting. Congress shall not pass any laws…

            Fox isn’t prohibited from doing journalistic things if it so desired to. Access is only part (and a very small part) of journalism. I think it’s more of an indictment of our journalistic culture that losing access is considered to be such a big deal. What they should be doing isn’t making up quotes or getting interviews, but looking through actual documents to determine what’s happening in government, not playing horse race base baiting.

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            • to Nob Akimoto

              You’re overemphasizing the “Congress shall make no laws…” bit. The First Amendment doesn’t get interpreted that tightly….for instance, there is nothing unconstitutional about placing reasonable time, place, and manner restrictions on obtaining protest permits for protests on federal lands. If, however, the NPS starts using those time, place, and manner restrictions to deny permits only for left-wing groups while allowing the permits only for right-wing groups, the left-wing groups will easily win a First Amendment suit against the NPS even though there is no unconstitutional statute.

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  2. The government makes these distinctions all the time. Reason magazine, for instance, does not get an official federal news credential. I seem to recall that it’s because Reason is not a for-profit institution. This is true of other magazines on all sides. Some get around this by organizing as a for-profit, but losing tons of money every year. Like the Weekly Standard. So some people get to go to the White House press room, others don’t.

    Not sure how this applies in this case, as rules have changes and TV is different. But as a general rule, the government is constantly making distinctions about which outlets are legitimate news sources and which are not.

    One hopes they can at least be consistent in applying whatever rules exist, of course. And that appears to not be the case here.

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    • to Sam M

      Fair point – obviously, the President can’t be required to treat every college newspaper as a legitimate new organization worthy of respect. The problem here, which I should have delineated more clearly, is that the disparate treatment is based on Fox’ viewpoint and the content of its coverage rather than any objective criteria.

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  4. Its interesting how this gets tagged as “free speech” and “freedom of the press”. The notion that saying mean things about them or not permitting them into a press conference is infringing on either is beyond absurd

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    • to cb

      Again, if this were an ordinary politician or a private citizen or if it were the President acting in his capacity as a candidate for re-election, I would agree with you. But when the President is acting in his official capacity, it is a much, much different ballgame.

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      • to Mark Thompson

        So do tell. How exactly has free speech been stifled? How has freedom of the press been trampled on? You don’t seem to really address that at all. But you do seeem to suggest that employees of the executive branch do not actually possess freedom of speech.

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        • to cb

          When the President starts restricting access to government officials based on whether or not he subjectively approves of a media organization rather than any objective criteria, First Amendment concerns arise. This type of activity can create a chilling effect in which the press will fear that harsh criticism of the President will result in them being unable to have access to important sources.

          Simply put, when the government attempts to punish, through policy or custom, speech or elements of the press, it acts unconstitutionally.

          Nor am I suggesting that government employees lack freedom of speech. However, to the extent they are speaking on behalf of the government they should be very careful with what they say. As I said above, simply calling Fox News an illegitimate news organization is constitutional – but just because it may be constitutional does not mean that it’s appropriately the place of the President. Moreover, the act of banning Fox News from access to certain public officials is a much closer issue; in this case, it probably still falls barely on the side of constitutional, but if it were a prohibition of access to more than just the pay czar, this would not be the case.

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          • to Mark Thompson

            “This type of activity can create a chilling effect in which the press will fear that harsh criticism of the President will result in them being unable to have access to important sources. ”

            Which is a valid point. But not a legal issue

            “Simply put, when the government attempts to punish, through policy or custom, speech or elements of the press, it acts unconstitutionally. ”

            Can you cite an example where removing access to sources has been found unconstitutional? That is, are there cases where access to sources was found to be a constitutional right?

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            • to cb

              You asked for how it affects the freedom of the press. I explained. Whether that is sufficient to create a Constitutional violation is irrelevant. Something can both be bad for freedom of the press and still Constitutional, such as subpoenas requiring reporters to give up their sources.

              As to your second point, I strongly doubt there is a case directly on point – there aren’t exactly a lot of instances of executive officials making pronouncements forbidding a specific news organization from having access to other executive officials.

              But it is fundamental First Amendment law that a government policy or custom intended to punish speech based on viewpoint is per se unconstitutional. The sole issue here would be whether the act of prohibiting access to a particular Presidential advisor constitutes a “policy or custom.”

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                • to ChrisWWW

                  The chilling effect arises from the fact that the action is viewpoint-based. The White House may set objective criteria for access to the press room; they may not make access contingent upon whether they believe your organization is fair.

                  Beyond that, in most of the examples you just listed, the reporter would in fact be able to get at least a day pass as I understand it.

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              • to Mark Thompson

                “You asked for how it affects the freedom of the press. I explained. ”
                Without really addressing any actual infringement on that freedom. A chilling effect is not an infringment upon freedom

                “Whether that is sufficient to create a Constitutional violation is irrelevant.”
                It is completely relevant, given your claim that it is unconstitutional.

                “But it is fundamental First Amendment law that a government policy or custom intended to punish speech based on viewpoint is per se unconstitutional. The sole issue here would be whether the act of prohibiting access to a particular Presidential advisor constitutes a “policy or custom.””
                No, I’d say the sole issue when framed that way is whether or not being called illegitimate or not being allowed into a press conference actually constitutes punishment in the first place.

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                • to cb

                  Being denied access to a press conference based solely on viewpoint is most definitely a First Amendment violation. There is in fact no room for debate on that point.

                  See the Sherrill case I reference below. Beyond that, there are a mountain of cases on the types of restrictions that can be used to restrict access to a limited public forum or to a non-public (but government-created) forum. You will not find a single case in which viewpoint represents an acceptable criterion for denying access to such a forum. Even if you consider a government sponsored press conference a non-public forum (the lowest possible level), government may still not restrict access based on viewpoint. See, eg, Cornelius v. NAACP (remanding for a determination on whether the government engaged in viewpoint discrimination after finding the existence of a nonpublic forum).

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                  • to Mark Thompson

                    “Being denied access to a press conference based solely on viewpoint is most definitely a First Amendment violation. There is in fact no room for debate on that point.”

                    We can assume, then, that the lawsuit will be filed and won or successfully settled. Care to place wagers on when that will happen? I’ll bet a $100 contribution to The League of Ordinary Gentlemen that it never does.

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                • to cb

                  No, I’d say the sole issue when framed that way is whether or not being called illegitimate or not being allowed into a press conference actually constitutes punishment in the first place.

                  That question can not be answered in isolation. You can not simply assert that there is nothing unconstitutional about a press organization that has historically had access to a public official being denied that access without looking into the circumstances into why the denial happened in the first place. If the First Amendment argument seems weak, which I don’t think is, especially with the possibility of viewpoint discrimination, then we can then shift gears and hit the Fifth Amendment’s Due Process clause and have the government explain what possible reason it had for making such an exclusion (to my great amusement I’m sure). In the absence of any policy or custom or a compelling state interest (which seems a bit hard to come by), it seems an awful lot like a no-brainer to me.

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                • to cb

                  The governmental interference with freedom of speech is quite obvious to me:

                  “Fox News, we don’t like how you report the news. Specifically, we don’t like the viewpoint that you blend in to your reporting of the news. Therefore, we will punish your opinion by denying you access to public officers — access which we do grant to those of your competitors who report the news in a manner which we deem acceptable, and which we deny to you despite the fact that you meet all of our pre-published criteria for what it would otherwise take to get that access.

                  “By the way, all of you non-Fox reporters in the press pool, this can happen to you, too, so if you want to continue having access to policymakers and interviews, you’d be well-advised to continue to toe the line and report about what the Administration is doing in a favorable way.”

                  That’s not just a “chilling effect.” It’s the White House dictating the editorial slant of the press (or attempting to do so) by selectively rewarding and punishing particular viewpoints. I withheld objection when White House staffers merely criticized Fox News. But when official governmental benefits (like press access to policymakers) get dispensed or withheld openly based on sucking up to or criticizing the President, a line has been crossed.

                  It does not matter if this effort is successful — it shouldn’t even be attempted in the first place.

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              • to Mark Thompson

                “Rather, we are presented with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide19 Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen,20 the protection afforded newsgathering under the first amendment guarantee of freedom of the press, see Branzburg v. Hayes, 408 U.S. 665, 681, 707, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Pell v. Procunier, 417 U.S. 817, 829-35, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), requires that this access not be denied arbitrarily or for less than compelling reasons. See Southeastern Promotions v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information.
                […]

                “In our view, the procedural requirements of notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial are compelled by the foregoing determination that the interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the first amendment. This first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment.”

                Bona fide…newsmen…newsgathering…correspondents. These are the qualifying criteria by which newsgatherers are distinguished from the general public and protected from arbitrarily being prevented from being in the White House press room or other restricted areas (where officials can allow those who they choose by whim to be). The issue of Fox’s correspondents’ bona fides as newsmen/getherers is what the administration, if it were to challenge their press passes which I am not clear it has done or intends to do, would raise in such a challenge. If they are not bona fide news gatherers (by a standard that would presumably be hashed out in litigation), then the White House can exclude them arbitrarily by the logic of this decision (which in fairness is all I looked at, so more could certainly be at play here).

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  6. Maaaaark,

    Come on. http://www.talkingpointsmemo.com/archives/2009/10/fox_news_outfoxes_itself.php?ref=fpblg

    FOX plans political rallies opposing Obama’s views, and fails to cover liberal rallies. They are a political organization with cameras, not journalists. I think a key distinction here is that the organizations represented in the press pool are reporters, not columnists, correct? So, the idea is that you are reporting and maybe even investigating, but even though all those papers have opinion writers, it is the news branch represented in the pool. If your whole operation is an opinion (nay, activist) page (reporting with intent to create a swell of opposition), I don’t think it’s fair to say they’ve been singled out, since they’re not a peer of the others in the pool.

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  8. In the spirit of making sure that there are no errors whatsoever on the internet, it appears Faux news was never excluded from a press conference. so this all amounts to some members of the admin saying “boy fox doesn’t really seem neutray”. and of course the press is furious and R’s are trying to make a massive case out of it.

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  9. “Congress shall make no law… abridging the freedom of speech, or of the press…”

    It says nothing about access or equal treatment, though obviously the issue of bills of attainder could remain. What is law governing how the White House structures press access? Obviously they deny some outlets access entirely and give out freewheeling tours to others. On what basis can any organization have an expectation of certain treatment? Does this extend to taking/returning phone calls? Can the White House never revoke press briefing passes? For what reasons can it? It would seem unseemly to do so based on viewpoint, but remember, they claim not to be doing that in the case of Fox — they say it does not function as a news organization. Setting aside whether that is an accurate claim, would it be a legitimate reason to revoke the briefing pass (something which, to be clear, I don’t believe happened.

    Also, it is absolutely not improper for the president in his official capacity to express his personal political opinion of a given news org, up to and including stating that he believes they are not a legitimate one. Anyone can find that (or anything else he does) unseemly, but that is merely an opinion about the statement or action in question. There is no seemliness standard in the law, leaving it nothing but a subjective impression open to personal whim and preference.

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  10. Announcing that Fox News isn’t legit seems to me to tell everybody that all the news organizations that the White House lets into the room are in the bag for the administration.

    I see this as harming the White House more than harming Fox.

    As such, I don’t see why anyone who is opposed to Fox’s viewpoint standing behind this decision on the White House’s part. It’s embarassing.

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      • to Michael Drew

        I suspect that the WH has a somewhat, erm, insulated group of advisors.

        I’ve no doubt that they are doing this because they think it is in their own best interest.

        If they believe that this is in their own best interest, they are operating under all kinds of bad assumptions.

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          • to Michael Drew

            That’s absolutely true.

            They could be operating in what they think is their own best interest and, as it turns out, it is their own best interest.

            You’re absolutely right.

            From my perspective, this was an easily avoidable mistake that will come back to bite them in the behind. (Imagine, for example, Dubya doing something similar in 2005. Are your eyebrows knitting?)

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            • to Jaybird

              To be clear — if they end up being right that it helps them, that doesn’t make it right (or wrong).

              Regarding your question, Dubya’s party has been doing this for between one and four decades. Does the phrase “the liberal media” mean anything to you? Did Dubya and his peeps leave any doubt about their opinion of The New York Times, for example? Do you contend that Bush’s being photographed carrying Goldberg’s Bias onto Marine One was meaningless and incidental?

              You’re right that insulation should be a concern, though. But the Bush insulation involved tuning out the bulk of mainstream information and opinion up through about 2005. This is one network that the administration has concluded adds no value to Republican press releases and which would savage them even if they did everything it wanted them to. It very well might still be the wrong move (as I said, I tend to agree with you), but it’s actually only a fraction of the isolation Dubya cast his administration into.

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  11. I encourage Mark to write up a full post on this topic detailing his views. It seems important that we be clear about the nature of the criticism: are Constitutional violations alleged and if so what are the particulars of those; are some lesser but formal principles being violated — in which case what are those and what has violated them; or is this merely a case where we might hope the administration would act more in what we take to be the spirit of the Constitutional protection in question as we understand them, but in fact is clearly within its rights according to the prevailing judicial interpretations in place today? Mark makes a number of statements about which of those is the case here in these comments, not all suggesting the same conclusion. I encourage Mark to expand on his views stated so far on this episode, hopefully in a way that undertakes a more thorough review of the actions whose implications are being considered. This would require considerable more investigation of the administrative steps and other specific actions the administration has taken in its “war” to date than is reflected here or in the post Mark defers to.

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