Constitutional Violation? Peter Johnson Jr. on Legal Implications of White House Trying to Bar Fox News from 'Pool' Interview

This is a RUSH transcript from "Fox & Friends," October 23, 2009. This copy may not be in its final form and may be updated.

STEVE DOOCY, "FOX & FRIENDS" CO-HOST: Joining us now is Peter Johnson, Jr. Peter, let's talk not just about journalism or the press. Let's talk about the Constitution.

PETER JOHNSON JR., FOX NEWS LEGAL ANALYST: Well, this is a very serious constitutional issue, and it's a weighty matter really for all Americans, not just for Fox News, but for all of the opinion makers and news organizations in the United States. What was averted yesterday by CBS and other networks saying, we believe in the Constitution, not competition, we believe in the First Amendment rights of Fox News that should not be infringed by the White House. What was averted was a very serious constitutional violation by the White House. The White House decided yesterday that at an official public event, an official news event sponsored by the White House and covered by the pool. Let me tell you what the pool is — you know what the pool is — you're an Emmy-award winning Washington, DC, journalist in the past. The pool is the eyes and ears of America. It's a combine of all the networks getting together and saying we're going to pool our resources, we're going to save money, and at the same time we're going to provide a minute by minute account of what happens at the White House.

DOOCY: It's America's eyes and ears on the executive branch.

JOHNSON: It absolutely is. And so what was said yesterday by the White House and its representatives was, listen, CNN, ABC, CBS, NBC, you can all interview Mr. Feinberg, the pay czar. But Fox News, we really don't like what you've been doing in your news programming and in your opinion programming and you cannot come along. And so when you look at all the case law, and there is a substantial body of American case law — if that had been allowed, if CBS, if the other people who were part of that pool had not come to that ultimate American moment where they said leave Fox out, do the story, gain a commercial competitive advantage to the detriment of the Constitution, then there would have been a constitutional violation and in some sense a constitutional crisis. The pool has been certified by courts in Washington and around the country as part of the public debate.

DOOCY: Then you see this as a clear violation of the freedom of the press.

JOHNSON: There cannot be selective and arbitrary access to the White House based on some subjective determination that I don't like your coverage, that I don't want the other networks to follow you in the way that you cover the news. I don't want the news networks to run away and mimic the Fox model whereby there is forthright, objective covering of the news and robust, unimpeded, sometimes loud debate in the evening on the issues of our day. And so court after court after court, including the Supreme Court, have said not only is there a right to access the White House, there is a right to gather news. There is a right to disseminate news. There is a right to equal access under the 14th Amendment through the First Amendment. There may be a Fifth Amendment protection to Fox News.

DOOCY: So it's very clear to you, Peter Johnson, that somebody can't say, even if it is the executive branch of the federal government, somebody can't say you're not in on this because we don't like you.

JOHNSON: The only way a government can tell a news organization that they cannot attend an official news event is if there is a compelling, a paramount, a supreme and overriding state or government interest to keep them out. And it was ennobling and it was inspiring to see that yesterday on behalf of Fox News, the constitution won out. But apparently, it is going to be a day-by-day process. And I don't know whether the White House is seeking to force some judicial showdown where the First Amendment is being tested. I don't know whether the White House is seeking to make a determination that the rules that apply to community organizing and social activism, where you demonize certain members of the press, where you freeze out certain members of the press, is somehow applicable to government. The First Amendment makes it clear that it's not. And yesterday, a showdown was averted and a constitutional violation, though this close, didn't happen.

DOOCY: Peter Johnson, Jr., thank you for your legal perspective.

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