Did the National Press Club Violate the First Amendment When it Banned the NPI Press Conference?

John Reid, American Renaissance, September 19, 2016

It was bound by principle if not by law.

When the National Press Club (NPC) cancelled the National Policy Institute’s (NPI) Alt-Right press conference, booked for its “First Amendment Lounge,” Jared Taylor and others noted the hypocrisy of the club for censoring free speech. NPI’s opponents countered that the NPC is a private organization and that the First Amendment applies only to government action. The Press Club was merely exercising its “freedom not to associate with racist assholes,” as neoconservative pundit Jamie Kirchick tweeted.

So are we just whining when we complain about censorship by a private organization? The short answer: no. American Renaissance does not have a First Amendment right to use the Press Club; however, the NPC still betrayed its principles by refusing to allow the press conference to take place.

The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The key word is “Congress.” With few exceptions, if a private organization such as the National Press Club censors someone it has not violated his First Amendment rights. However, the First Amendment has meaning beyond its legal boundaries.

Until 1925, state and local governments could pass speech restrictions without violating the First Amendment. That was the year the Supreme Court ruled that by virtue of the 14th Amendment, many of the restrictions on Congress–including the First Amendment–applied to the states. Legally speaking, all state violations of free speech are therefore violations of the 14th Amendment.

If in 1910, for example, a state government had a “First Amendment Room” for holding public forums and then decided to ban a speaker because of his views, it would not have been a violation of his First Amendment rights but it would have been a clear case of hypocrisy.

The Press Club likewise no doubt named the lounge for the general principles of freedom of the press and freedom of speech. If the club were composed of dogmatic libertarians who cared only about stopping government censorship, they would have called it the “State Action Doctrine Lounge.” Indeed, the Press Club describes itself as a “vigorous advocate of press freedom,” without getting into technicalities about the government’s role in ensuring free speech.

What are some of those technicalities? Some directly relate to government censorship. The First Amendment is supposed to serve as a check on government power. As Justice Hugo Black wrote in the Pentagon Papers case,

The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people.

However, the Press Club wants to apply this principle not only to government but to political candidates as well. The day it cancelled NPI’s contract, the club issued a press release describing Donald Trump’s past restrictions on press access to his campaign as a “slap at press freedom” that hindered the “media’s ability to have unfettered access to our leaders and political candidates.” The release quoted NPC president Thomas Burr, saying that “Trump’s ban on news organizations whose coverage displeased him was offensive to the very idea of a free press.” Mr. Burr had previously criticized Donald Trump for saying, “You know my opinion of the media, it’s very low,” and for calling reporters generally “liars” and “low lifes.” According to Mr. Burr:

Donald Trump misunderstands–or, more likely, simply opposes–the role a free press plays in a democratic society. . . Reporters are supposed to hold public figures accountable. Any American political candidate who attacks the press for doing its job is campaigning in the wrong country. In the United States, under our Constitution, a free press is a check on politicians of all parties.

In fact, under current First Amendment law, the press has no more right to have access to a presidential candidate as the NPI or anyone else has a right to rent a room at the Press Club. However, Mr. Burr and his club believe that these First Amendment principles should apply to candidates. By this logic, when Hillary Clinton attacked the Alt-Right as a movement and her campaign singled out Jared Taylor and Richard Spencer by name, one would think the same principle would require giving them a platform to respond.

Another key concept behind the First Amendment is “The Marketplace of Ideas,” which Justice Oliver Wendell Holmes first articulated in his dissent in Abrams v. United States. As he explained, “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”

In his dissent in Dennis v. the United States, Justice William Douglas added further elaboration:

When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart.

Eventually, the Court accepted these dissents. In United States v. Rumely, it explained that freedom of the press meant that the “publisher bids for the minds of men in the marketplace of ideas,” and that “in a community where men’s minds are free, there must be room for the unorthodox, as well as the orthodox, views.”

When Slate asked the Press Club about an earlier NPI event at its building, Executive Director William McCarren said it had never censored an event based on ideological grounds in its then-108 year history, and that the club served as an “open public forum.” Banning the press conference implies that the Alt-Right promotes views that we do not trust to sink or swim in the marketplace of ideas based on their merits. The Press Club has singled out one “unorthodox view” it does not like, and decided it must not be heard.

It is also significant that all three speakers at the Press Conference, Jared Taylor, Richard Spencer, and Peter Brimelow, edit publications: American Renaissance, Radix Journal, and VDARE, respectively. The Press Club serves as a professional organization for journalists somewhat in the way the American Medical Association represents doctors. These professional organizations often devolve into cartels, restricting competition through collusion and protective government regulations. By taking the extraordinary step of banning rival journalists with dissident views, the Press Club is protecting the mainstream media’s ideological monopoly on the marketplace of ideas.

While the Press Club’s censorship was not a legal violation of the First Amendment, it went against core principles the Club claims to uphold. NPI does not have a constitutional case against the Press Club (though it may well have a breach of contract claim). However, the Press Club, and any journalist who does not speak out against it, have demonstrated through their actions that they have no regard for the First Amendment’s principles of freedom of speech and freedom of the press.

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John Reid
John Reid is a recent law school graduate practicing corporate law and an occasional commentator at VDARE.com.
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