Did DeSantis violate First Amendment with Fox News-only bill signing?

Experts said the Florida governor likely ran afoul of the U.S. Constitution with his staged event in West Palm Beach.
Gov. Ron DeSantis signed a controversial elections law Thursday in West Palm Beach, but only Fox News was allowed to show it. A graphic falsely claimed the law prohibits "mass mailing of ballots," when existing law already requires mail ballots to be requested.
Gov. Ron DeSantis signed a controversial elections law Thursday in West Palm Beach, but only Fox News was allowed to show it. A graphic falsely claimed the law prohibits "mass mailing of ballots," when existing law already requires mail ballots to be requested.
Published May 7, 2021|Updated May 7, 2021

Florida Gov. Ron DeSantis not only broke from decades of precedent on Thursday when he blocked all news outlets except Fox News from covering the signing of a voting bill into law. He also may have violated the U.S. Constitution.

That’s the opinion of First Amendment experts who told the Tampa Bay Times it is illegal for DeSantis to hand-pick which media can cover a public proceeding.

“The law leaves no question as to the impropriety of banning certain media while allowing only friendly media,” said Pamela Marsh, executive director of the First Amendment Foundation, an organization that advocates for open government and represents news organizations, including the Tampa Bay Times and the Miami Herald. “That is viewpoint and content discrimination.”

Decades of precedent in federal courts have affirmed that elected officials cannot block certain news outlets from reporting on public events just because they don’t like the coverage.

Related: Fox News didn’t ask for an exclusive on DeSantis bill signing, network says

In Louisiana in the 1980s, a local mayor attempted to exclude reporters from a certain newspaper from major press conferences. The newspaper sued. A federal court called the mayor’s actions “the essence of censorship forbidden by the First Amendment and so abhorred by the founding fathers,” and the newspaper won.

In 2007, an Ohio federal judge ruled against the mayor of Toledo, who had stopped notifying a local radio station of the mayor’s news conferences. The mayor’s office also blocked one of the station’s reporters from attending. The court said the mayor was attempting to “manage the news by manipulating who comes to hear what’s to be said and therefore who reports it. ” It required that the reporter be given access.

DeSantis visited West Palm Beach on Thursday to sign a controversial bill that made it more difficult to vote by mail in Florida. In his three years in office, DeSantis has frequently held similar signing ceremonies, and they are open for journalists to attend. This time, reporters and television crews that showed up to cover the signing were turned away by the governor’s staff.

The signing, however, was carried live on Fox & Friends, the conservative network’s morning show, during a 7 minute and 30-second segment. DeSantis later said he gave Fox News an “exclusive,” a term that media types and politicos use for granting a story or interview to a single outlet or reporter.

Because the bill signing was a “public proceeding,” DeSantis should not have been able to limit which news outlets could cover it, said Clay Calvert, a University of Florida law professor and director of the school’s First Amendment Project.

People who don’t have a cable subscription or who don’t watch that network wouldn’t have seen it.

“Unless you’re watching Fox, you’re going to be denied access to information,” Calvert said. “That’s troubling regardless of the First Amendment issues.”

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Related: DeSantis wants voters’ signatures to match. Would his pass the test?

In addition to DeSantis, several elected officials joined him in West Palm Beach for the bill signing, including Lt. Gov. Jeanette Núñez and the bill’s sponsors, Rep. Blaise Ingoglia and Sen. Dennis Baxley. Members of a local fan club for former President Donald Trump were also in attendance.

DeSantis defended only letting Fox & Friends in the room because it was aired on national television. His office did not respond to requests for comment on the First Amendment concerns.

“We did a wonderful bill signing for this great elections bill,” DeSantis said. “It was live on national television. We were happy to give them the exclusive on that. That’s broadcast to millions of people.”

Fox & Friends averages about 1.1 million viewers nationwide. Florida’s voting age population is nearly 17 million.

Fox said it did not ask DeSantis’ office for the special treatment. In a statement to the Tampa Bay Times, the network said, “FOX & Friends did not request or mandate that the May 6th event and interview with Gov. Ron DeSantis be exclusive to FOX News Media entities.”

Later, the network clarified that its producers weren’t aware that DeSantis was going to sign the bill on camera. He was booked Thursday for “an interview and not as a live bill signing.”

This is not the first time DeSantis’ administration has clashed with news organizations on access. When the coronavirus first arrived, DeSantis’s administration waited 24 hours to tell the public about a known case in Florida. Throughout the pandemic, DeSantis’ office has withheld data and reports on the outbreak from reporters, only releasing the information after news outlets sued.

Thursday’s news conference also highlights how much DeSantis has relied on Fox News to amplify his message and grow his national brand. He is a frequent guest on the show’s prime time programs, whose hosts often heap praise on the Republican governor.

And the network has in turn welcomed DeSantis, one of the most popular figures in the GOP, as often as he’s available. Hours after a national firestorm over DeSantis’ appearance on Fox & Friends, he sat down for another interview on the network, this time with Sean Hannity.

Edward Birk, a Jacksonville-based First Amendment attorney, said elected officials can grant exclusive arrangements with certain news organizations but they cannot exclude media from a public event.

“Regardless whether it violates the First Amendment, which it may,” Birk said, “it’s bad government.”

Times/Herald reporter Lawrence Mower contributed to this report.