Comment: West Wing press briefing rule change plays favorites

By Stephen L. Carter / Bloomberg Opinion

There’s an episode of “The West Wing” during which, in the midst of a crisis, a television reporter asks press secretary C.J. Cregg an out-of-left-field question about the dress she’s wearing, then goes on the air and suggests that Cregg isn’t in the loop because she’s a “clotheshorse” who might have “missed some information during her wardrobe changes.” Cregg responds by humiliating the reporter at the next briefing, then taking away her White House credentials. “You’ll call my office every day,” Cregg says, “and I’ll decide if you get into the room.”

That bit of televised fiction comes to mind in the wake of the lawsuit filed last week against White House officials by African journalist Simon Ateba. He contends he’s being discriminated against because under newly adopted rules, he can no longer get proper press credentials. The Biden administration says Ateba’s so-called hard pass was yanked because he’s constantly disruptive. Ateba insists that he lost access because of objections to his “viewpoint.”

I’ll admit to not being a regular viewer of White House press briefings, but from media reports I gather that Ateba has been, let us say, indecorous, often interrupting others to demand answers to questions. In his lawsuit, he insists that’s because he’s never called on, that he has no other way to get responses and that he shouldn’t be punished for doing his job.

Nobody doubts that Ateba is the principal target of the new rules. The Daily Beast’s Confider reported in March that the proposed rule changes were aimed at “notorious gadflies like Simon Ateba.” Last month, the Washington Post wrote that Ateba was “unlikely to qualify under the new criteria.” (Neither were 400 or so others, who also lost their credentials.)

I’m a fan of decorum. Even in these discourteous days, I adhere to my view that practicing the virtue of civility is crucial to democracy. So I’m not about to defend Ateba’s evident rudeness. But his claim that seemingly neutral rules are being used to deny him access is part of a long and troubling American tradition, in Washington and beyond.

In the 1970s, for example, so-called underground newspapers were routinely denied press credentials by state and local authorities. So was the left-leaning Los Angeles Free Press, now gone. The same city refused a press pass to Entertainment West, a “gay and lesbian biweekly” serving Southern California. Not to be outdone, New York City decided not to credential the Solidarity International Press Service, linked to the conspiracy theorist Lyndon LaRouche.

In each of the cases, a neutral-sounding reason was given: You’re not an actual newspaper; you don’t publish often enough; you don’t have a public audience. But that litany of explanations couldn’t hide the fact that those denied passes were outsiders.

The reasons ran from the invidious to the absurd. Consider Alice Dunnigan, the pioneering Black reporter who in the 1950s was credentialed to cover both the White House and Capitol Hill for the cash-strapped Associated Negro Press. Dunnigan had to take a second job to make ends meet. Alas, the second job was as a government typist. The White House correspondents committee threatened to revoke her credentials unless she gave up the post.

About the same time, President Dwight Eisenhower’s press office was busy looking into how it might cancel the press pass of another Black reporter, Ethel Payne, who had been peppering the president with questions about civil rights. In her case, the stated rationale was that she was not a full-time journalist. Payne ultimately kept her pass, but Eisenhower stopped calling on her at news conferences.

All of which brings us back to Ateba’s suit, which contends the new rules were adopted to get rid of him.

Disruption, unlike hostile questions or ideological differences, is in most instances not protected under the First Amendment. If the White House had, as threatened, simply “suspended or revoked” Ateba’s credentials because of his repeated interruptions, he would have little ground for complaint. He had been warned by the press office that he might lose his pass if he continued “to impede briefings or events by shouting over your colleagues who have been called on for a question.” By all accounts, he didn’t stop.

The warning matters. In a 2020 decision ordering the reinstatement of a journalist whose pass had been revoked for disruptive behavior, a federal appellate court made clear that the White House’s chief mistake was its failure to warn reporters — “an unruly mob,” per the court — of what conduct was prohibited. The White House has the authority “to maintain order” at its events.

But instead of simply suspending Ateba’s credentials, the administration adopted a whole new regime of credentialing. Without going into detail, it’s enough to note that the rules now require, among other things, “employment with an organization whose principal business is news dissemination” and being credentialed at the Supreme Court or Congress.

I’m no fan of the notion that freedom of the press turn on whether one earns money as a journalist. But the question of whether the new rules are wise or foolish can wait for another day. My point, rather, is that if the White House wants to kick Ateba out of the press room because he’s disruptive, it should say so, clearly and openly. The worst way to solve the problem posed by a single journalist is to adopt a set of rules that revoke the credentials of hundreds more.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”