Make Campaign Coverage Great Again: Presidential Campaigns, the Press, and the Right of Access

MESCALL (DO NOT DELETE) 6/25/2018 5:37 PM MAKE CAMPAIGN COVERAGE GREAT AGAIN: PRESIDENTIAL CAMPAIGNS, THE PRESS, AND THE RIGHT OF ACCESS Maximilian J. Mescall* I. INTRODUCTION As news organizations multiply and cater to niche fields and interests, Americans have flocked towards news sources that fit their ideological preferences.1 For instance, eighty-eight percent of consistent conservatives have a positive view of Fox News, while consistent liberals are more likely to rely on NPR, PBS, the New York Times or the BBC for their news.2 Although more Americans follow the news, the public has moved away from television and print mediums, where news sources attempt to appeal to a broader audience, to blogs or ideologically consistent television such as the O’Reilly or Daily Show.3 Meanwhile, on social media, consistent conservatives and consistent liberals are more likely to defriend or unfollow people who share political views contrary to their own.4 This shift in American news consumption results in fewer Americans receiving news from multiple sources or viewpoints.5 * J.D. Candidate, 2018, Seton Hall University School of Law; B.A., magna cum laude, 2014, Rutgers University. I would like to express my gratitude to my faculty advisor, Jonathan Hafetz, for his guidance and support in the writing of this Comment. 1 Today’s Washington Press Corps More Digital, Specialized D.C.-based Newspaper Staff Focus on Congress, but Wire Services Account for Most of What Readers See, PEWRESEARCH (Dec. 3, 2015), http://www.journalism.org/2015/12/03/todays-washingtonpress-corps-more-digital-specialized/. 2 Amy Mitchell et al., Political Polarization & Media Habits, PEWRESEARCH (Oct. 21, 2014), http://www.journalism.org/2014/10/21/political-polarization-media-habits/. 3 Americans Spending More Time Following the News: Ideological News Sources: Who Watches and Why, PEWRESEARCH (Sept. 12, 2010), http://www.people-press.org/2010/09/12/ americans-spending-more-time-following-the-news/. 4 Mitchell, supra note 2. 5 Id. (“When it comes to getting news about politics and government, liberals and conservatives inhabit different worlds. There is little overlap in the news sources they turn to and trust.”). But see id. (“The study also suggests that in America today, it is virtually impossible to live in an ideological bubble. Most Americans rely on an array of outlets— with varying audience profiles—for political news. And many consistent conservatives and liberals hear dissenting political views in their everyday lives.”). 1653 MESCALL (DO NOT DELETE) 1654 6/25/2018 5:37 PM SETON HALL LAW REVIEW [Vol. 48:1653 This ideological split bled into the 2016 presidential campaign. At a rally for Donald Trump’s presidential campaign, campaign staff approached Ben Schreckinger, a Politico reporter, called security, and escorted him from the premises.6 Schreckinger had obtained an admission ticket to the event, but had not been granted the press credentials7 he requested.8 The story was a common one in the 2016 presidential election, with the Trump campaign expelling reporters from Vice News,9 Univision,10 the Washington Post,11 and other news outlets from campaign events.12 The Trump campaign’s actions were the result of a blacklist of news organizations the campaign believed treated Trump unfairly.13 After the editorial board of The Des Moines Register called for then-candidate Trump to bow out of the race, it became the first media outlet placed on the blacklist.14 From there, the list expanded to at least half a dozen news organizations that were denied the access and privileges that come with press credentials, including access to the campaign’s news conferences.15 Some 6 Ben Schreckinger, Trump Security Removes POLITICO Reporter from Rally, POLTICO (June 3, 2016, 12:50 AM), http://www.politico.com/story/2016/06/donald-trump-securitypolitico-reporter-223856. 7 Jeffrey P. Hermes et al., Who Gets a Press Pass? Media Credentialing Practices in the United States, BERKMAN CTR. INTERNET & SOC’Y, June 2014, https://papers.ssrn.com/so l3/papers.cfm?abstract_id=2451239 (“For decades, journalists at established news organizations have routinely applied for and been granted credentials by government bodies at the federal, state and local levels, from the White House all the way down to local police and fire departments. Private organizations also often control access to other events, such as concerts, sporting events and political conventions. Despite some unease and tensions, many reporters have maintained working relationships with these agencies and their officials. Some media organizations have obtained a standing [sic], generic set of credentials that are used interchangeably by their reporters; in other cases, a press badge from a recognized news organization may prompt an informal ‘wave through’ by officials, allowing special access at accident scenes, government events, and other restricted areas.”). 8 Schreckinger, supra note 6. 9 Harper Neidig, Reporter Arrested at Trump Campaign Event, THE HILL (Sept. 17, 2016 4:09 PM), http://thehill.com/blogs/ballot-box/presidential-races/296477-reporter-arrest ed-at-trump-campaign-stop. 10 Theodore Schleifer, Univision Anchor Ejected from Trump News Conference, CNN (Aug. 26, 2015, 11:52 AM), http://www.cnn.com/2015/08/25/politics/donald-trump-megynkelly-iowa-rally/index.html. 11 Tom Kludt and Brian Stelter, Donald Trump Revokes Washington Post Press Credentials, CNN (June 14, 2016, 11:03 AM), http://money.cnn.com/2016/06/13/media/do nald-trump-washington-post-credentials/index.html. 12 Tom Kludt and Brian Stelter,’The Blacklist’: Here Are the Media Outlets Banned by Donald Trump, CNN (June 14, 2016, 12:52 PM), http://money.cnn.com/2016/06/14/media/d onald-trump-media-blacklist/. 13 Id. 14 Eliza Collins, Trump Ends Media Blacklist: ‘I Figure They Can’t Treat Me Any Worse!’, USA TODAY (Sept. 7, 2016, 12:52 PM), http://www.usatoday.com/story/news/polit ics/onpolitics/2016/09/07/donald-trump-media-blacklist/89951650/. 15 Kludt, supra note 12. MESCALL (DO NOT DELETE) 2018] 6/25/2018 5:37 PM COMMENT 1655 media advocates expressed concern that blacklisting “could have a chilling effect on other outlets’ coverage of Trump,”16 while others believed the campaign was correct to punish these news organizations for their dishonesty.17 While the Trump campaign’s actions were well known and documented, other presidential candidates have also engaged in selective access.18 The Supreme Court has found viewpoint discrimination problematic when the entity denying the press access is a government actor.19 Under the First Amendment, the Court has recognized the press’s right of access to government buildings, but for the past fifty years declined to further address the doctrine.20 The doctrine is meant to prevent government from providing selective access to members of the press or public who promote a certain viewpoint.21 It fosters open access to government and subjec (...truncated)