Krasner's Eviction Of Reporter Unprecedented & Unconstitutional

Before he evicted me, D.A. hid from Big Trial

By Ralph Cipriano
for BigTrial.net

Larry Kane was flabbergasted.

Kane's  the dean of TV anchors in Philadelphia for nearly 40 years until his retirement in 2003. And he couldn't believe that District Attorney Larry Krasner had actually ordered a couple of police officers to evict me from a press conference.

Kane's now a 79 year-old semi-retired special contributor for KYW News Radio who was preparing some expert commentary on my eviction. During our interview, I briefly turned the tables on the broadcast Hall-of-Famer and asked how he would describe what Krasner did.

"Unprecedented" was the only word Kane could think of. Not even the late Frank Rizzo, Kane said, had ever pulled a stunt like that.

A couple of lawyers I talked to had another word to describe Krasner's eviction of a reporter from a press conference  -- unconstitutional.  

"Krasner is engaging in unconstitutional viewpoint discrimination against you," wrote Mark Zecca, a former senior attorney in the city of Philadelphia's Law Department. 

The press conference held Monday at the Emmanuel Christian Center in West Philadelphia, Zecca wrote in an email, was an official government activity where Krasner presided over a "government forum for journalists."

"And [Krasner] made it crystal clear that every single journalist would have an opportunity to ask questions, except you," Zecca wrote in an email. "He made it clear that he was making himself available — to all except you."

On D.A.'s orders, detective evicts reporter

But a government official, Zecca wrote, can't discriminate on the basis of race, sex, or political affiliation. "Similarly," Zecca wrote, "there are Constitutional constraints on government as to viewpoint discrimination."

 

"So, it is perfectly obvious why he excluded you — your views," Zecca wrote. "As the reporter who has the most coverage of him and the most critical coverage, he did not want you to speak."

"But you have a Constitutional right to those views," Zecca wrote. "And [Krasner] has no right to dole out official governmental benefits in a way that specifically discriminates against someone because that person expresses their Constitutional freedoms to express views he disagrees with."

"And he carried the unconstitutional discrimination to the outrageous unconstitutional step of physical ejection and enlisted law enforcement with power of arrest into his unconstitutional actions," Zecca wrote. 

First Amendment scholars historically agree with what Zecca had to say about viewpoint discrimination.

"Viewpoint discrimination is a form of content discrimination particularly disfavored by the courts," wrote Kevin Francis O'Neill and David L. Hudson Jr. in a 2017 online article for The First Amendment Encyclopedia, published by the Free Speech Center at Middle Tennessee State University.

"Because the government is essentially taking sides in a debate when it engages in viewpoint discrimination, the Supreme Court has held viewpoint-based restrictions to be especially offensive to the First Amendment," the authors wrote. "Such restrictions are treated as presumptively unconstitutional."

Besides our Philly D.A., another recent practitioner of viewpoint discrimination is former President Donald Trump.

In 2019, the 2nd and 4th Circuit Courts of Appeals ruled that Trump violated the First Amendment by removing from his Twitter account, “@realDonaldTrump," negative comments from critics who ripped him and his governmental policies. 

In the Trump case, the appeals courts upheld a lower court ruling that Trump's Twitter account was a designated public forum, and that blocking critics constituted viewpoint discrimination.

Another lawyer who thinks what Krasner did is unconstitutional is Paula Knudsen Burke. She's a local legal initiative staff attorney based in Pennsylvania for the Reporters Committee For Freedom Of the Press, a Washington D.C.-based nonprofit that provides pro bono legal services and resources to journalists.

"Government officials cannot make media access decisions based on the content of news coverage," Burke wrote Krasner on Wednesday. "Such action would amount to unconstitutional content based restrictions on First Amendment activity. Simply put, a government official such as an elected District Attorney has a constitutional duty to remain content-neutral when dealing with the press."

Krasner, of course, because he thinks he was elected dictator, did not respond to Burke's letter. Neither did Jane Roh, Krasner's official spokesperson.

When he went on the air Thursday afternoon, Larry Kane still sounded flabbergasted about Krasner's behavior.

"This is a first," Kane said on KYW in a couple of pithy one-minute commentaries that ran some 14 times between 3 p.m and 10 p.m. Thursday. "In my 56 years of reporting here I've never heard of a major public official personally ordering the removal of a journalist."

Both commentaries prominently featured the shrill voice of D.A. Krasner tossing me out.

"Sir, that is the third time," Krasner yelled. "Detective [Tom] Kolenkiewicz, will you please escort him out."

"I am asking you to leave," Krasner said. "You have three times violated the rules of how we do this. Please exit."

According to Kane, Krasner's "vitriolic tone is a first on the local political scene."

"Such luminaries as Ed Rendell, Mike Nutter, John Street would get angry at the media but never under threat of force order a reporter removed from the building," Kane said.

But not only did Larry Krasner and Jane Roh stiff Paula Knudsen Burke, they also stiffed Larry Kane.

"We're waiting for a response from Krasner's press chief," Kane said on the air, before signing off -- "Larry Kane, KYW News Radio, 103.9 FM."

So there you have it folks. In ordering the cops to evict me from a press conference, Progressive Larry Krasner the former civil rights lawyer stooped to a hardball tactic that Rendell, Nutter and Street, as well as Frank Rizzo, never resorted to.

So Krasner could commit the same kind of unconstitutional offense -- viewpoint discrimination -- that the federal courts determined that Donald Trump was guilty of.

Topping Rizzo and emulating Trump is not good company for an alleged progressive, Larry.

But what the D.A. did on Monday isn't just my problem. 

In an interview on Wednesday with talk show radio host Dom Giordano, I expressed my opinion that the rest of the media in this town was making a mistake by allowing Krasner to set a dangerous precedent.

"What they don't realize is it was my turn Monday, but the precedent's been set and next week it could be their turn," I told Giordano.