Constitution Check: Does it violate the First Amendment for the president to bypass the press?

Lyle Denniston

Lyle Denniston looks at the Bob Woodward controversy, and if President Obama’s administration is testing the First Amendment in its relationship with journalists.

The statement at issue:

“When the president can bypass media to reach the public, it is not far-fetched to imagine a time–perhaps now?–when the state controls the message. … No president since Richard Nixon has demonstrated such overt contempt for the messenger. And, thanks to technological advances in social media, Obama has been able to bypass traditional watchdogs as no other has.”

 – Kathleen Parker, a columnist with the Washington Post Writers Group, in an op-ed article in The Washington Post on March 1, titled “Why the ‘threat’ on Bob Woodward matters.” She was commenting on the tiff between the White House and Post senior writer Woodward over his story saying that the White House originated the idea of the massive federal budget cuts that took effect March 1.

We checked the Constitution, and…

The “watchdog” role of the press is, indeed, one of the political values that the First Amendment’s free press clause was designed to achieve, from the very beginning of the nation. As Thomas Jefferson wrote to a friend in 1789, “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”

It is fair to ask, though, whether a president’s choice to “go to the people” because the White House believes the presidential message is not getting through via the media is a serious limit on freedom of the press. The press depends upon access to White House officials to monitor their official conduct, but that is an issue quite separate from a chief executive who goes out on the hustings to tell his administration’s story the way he wants it told.

The logical fallacy in Kathleen Parker’s column is that it treats President Obama’s speechmaking tours as merely an extension of a threat (or an implied threat) to cut off reporter Woodward’s access to the White House (leaving aside the hyperbole suggesting that America is near–or even at–the place where the government “controls the message”).

There are two kinds of accountability at issue here, and both are related to constitutional purposes. Those who wrote the Constitution wanted the president to function as the one government official who was accountable to the whole nation, because he was elected to do just that. They turned aside suggestions that the president be chosen by Congress, and opted for election by the people. And those who added the First Amendment to the Constitution wanted the press to help ensure that the president remained true to that constitutional stewardship.

From George Washington’s time onward, presidents have used the high visibility of their office to communicate to the people. They have not always communicated honestly and candidly, but by the very fact that they are speaking or writing in public makes their message subject to criticism, from the press and their political adversaries, and by the public at large.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The fact that the means of expression have changed over time–the penny press, the telegraph, urban newspapers, radio, television, and the Internet and social media–has not meant that the president was steadily gaining the unchecked power to “control the message.” Presidents have had press secretaries who daily met with reporters to make announcements and field questions, but no one expects the reporters to suspend their own professional judgment in response.

None of that has altered the constitutional order in a way that has scuttled the First Amendment, or muzzled the press. A journalist like Bob Woodward has managed to get behind the scenes to a really unusual degree, for some of the most penetrating Washington journalism that America has ever known. Although in recent days he has publicly communicated his “discomfort” with being a target of White House criticism and what he interpreted as a threat, it hardly seems likely that he will now be isolated from the public square, or that he will be truly intimidated.

In fact, by taking his feud with the White House to various public forums, Woodward has risked making himself the story, drawing attention away from the reporting that displeased the White House. Reporters whose personalities get in the way of their stories do no favors to journalism in general or to their stories in particular.

It is well to remember that, as a very young, energetic reporter, Woodward, along with another young one, Carl Bernstein, uncovered the massive scandal that history knows as “Watergate.” While there was glory in that (including being somewhat idolized in a very popular Hollywood movie), it was the substance of the journalism that had a lasting effect.

While Kathleen Parker and others have complained of a “thin-skinned” White House in the Obama years, it does not appear–at least not yet–that the president and his aides have compiled an “enemies list” that includes members of the press, and have not been known to wiretap reporters’ telephone calls. Now that was an attempt at “state control of the message.”

There is a natural tension between presidents and their aides and the media that covers the White House, and each side regularly complains about the message that the other is conveying. The First Amendment has accommodated that tension, and perhaps even fostered it. And the First Amendment also has been very good for the social media, where literally everyone (including presidents) can have their say. Indeed, America may well be on the verge of becoming a real democracy, where everyone can try to control–or at least to influence–the message.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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