New White House Press Conference Rules Leave Door Open To Future Challenges

from the doesn't-change-much dept

As you’ve likely heard by now, the Trump administration has restored Jim Acosta’s hard pass for media briefings, and CNN has accordingly dropped its lawsuit, returning the battle between Trump and the media to cold-war-status for the time being. But the White House also took the opportunity to issue new rules for its press conferences which, rather than truly addressing any of the issues that formed the basis of the lawsuit, appear to leave the door wide open for future abuses by Trump and challenges by the press:

(1) A journalist called upon to ask a question will ask a single question and then will yield the floor to other journalists;

(2) At the discretion of the President or other White House official taking questions, a follow-up question or questions may be permitted; and where a follow up has been allowed and asked, the questioner will then yield the floor;

(3) ?Yielding the floor? includes, when applicable, surrendering the microphone to White House staff for use by the next questioner;

(4) Failure to abide by any of rules (1)-(3) may result in suspension or revocation of the journalist?s hard pass.

Basically, the White House seems to be setting itself up with the absolute bare minimum framework that it could kinda-sorta claim constitutes viewpoint-neutral due process the next time it wants to kick out a reporter. Functionally the rules don’t seem to change much, since who gets the floor at White House press conferences has always ultimately been at the discretion of the person at the podium, but this formalizes the threat of pass revocation for those who don’t play nice enough for Trump’s tastes. Though many reporters are (rightfully) speaking out against the clear anti-press tone of the rules, and (correctly) pointing out that followup questions are one of the most critical components of good journalism, the reality is that this just puts things in a holding pattern until the next time Trump kicks someone out.

For one thing, the rules don’t actually address any of the due process requirements set out in Sherrill v. Knight and expanded on by the judge’s TRO restoring Acosta’s pass, so the entire fifth amendment question still falls to how these rules get enforced:

The court in Sherrill held that this process must include notice, an opportunity to rebut the government’s reasons and a written decision. And … although the court in Sherrill did not have occasion to address it, when an important interest is at stake and when the government is able to provide this process before deprivation, it generally must do so.

Moreover, simply stating that the president has discretionary power doesn’t eliminate the first amendment issue. Again, it will come down to how that power is used — specifically, whether it’s used for viewpoint-based discrimination. If there is another incident and another legal challenge, these rules won’t change much, and something like CNN’s initial first amendment argument could easily still apply:

Defendants’ justifications for impeding Plaintiffs’ First Amendment rights are hollow and hardly sufficiently compelling to justify the indefinite revocation of Acosta?s White House credentials. Consequently, the only reasonable inference from Defendants? conduct is that they have revoked Acosta’s credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs’ exercise of protected First Amendment activity.

The sole justification for Defendants? conduct is their dislike for Plaintiffs? coverage of the administration and critique of the President. But that is insufficient to justify such a substantial restriction on Plaintiffs? First Amendment rights.

Meanwhile, in the full statement laying out the new rules, Sarah Sanders laments that they were created with “a degree of regret” and are only necessary because they can tragically no longer rely on “a set of understood professional norms.”

If only they cared so much about presidential norms.

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Comments on “New White House Press Conference Rules Leave Door Open To Future Challenges”

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Anonymous Coward says:

Re: Norms

Whatever. Acosta is an ass, acted like an ass, and feels entitled to force his assholeness onto others.

There is no right to get an answer you like to any question you ask. And once you’ve asked your question, decorum and civility dictate that yield to the next questioner. You don’t get to keep harassing until you’re satisfied.

Anonymous Coward says:

Re: Re: Re:2 Norms

The issue is how Acosta acted, which got his pass revoked.

And restored. Seems like once the courts got involved, the white house decided someone might call them on their bullshit so they buckled like a belt. How he acted couldn’t have been that big a deal. Otherwise they wouldn’t have backed down. Unless they were afraid of Acosta…

Anonymous Coward says:

Re: Re: Re:6 Norms

Please provide your legally based argument, predicated on existing case law, as to why the judge was wrong. Please provide your legally based argument, predicated on existing case law, as to why the White House was in its rights to revoke the press pass.

Please ensure to cite your sources. Naming the cases is a good start – even better would be links to the actual cases for others to review.

We look forward to your presentation.

Leigh Beadon (profile) says:

Re: Re: Re:10 Norms

you can’t even understand basic dictionary definitions of words

And as we all know, the dictionary is the final arbiter of law, and privately employed lexicographers are the fourth branch of government. You know those big shelves full of imposing books that you always see behind lawyers and judges? All dictionaries, every last one of them!

Leigh Beadon (profile) says:

Re: Re: Re:8 Norms

How about you show where the constitution guarantees press pass.

The constitution does not "guarantee a press pass".

It does, however, restrict the government from abridging the freedom of speech and of the press. In the nearly 250 years since it was written, there have been many cases big and small heard by many judges from district courts up to the Supreme Court – the final arbiter of what the constitution guarantees. These cases have resulted in thousands of pages of extensive, detailed reasoning about what the First Amendment (and the other amendments) actually guarantees.

If you’re not going to engage with that history of jurisprudence in the slightest, and are just going to keep saying "show me where the constitution says that", then you really need to grow up.

Like, imagine something for me for a moment: let’s say you were at dinner with a decorated judge from a federal appeals court who hears constitutional matters related to free speech and due process. Is this how you would talk to him about your opinions on law? Or would that be enough to cow you into a tiny bit of humility so you stop acting like your facile two-sentence takes make you the smartest person in the room?

Thad (profile) says:

Re: Re: Re:8 Norms

How about you show where the constitution guarantees press pass.

I’ll do one better and show where the Constitution says "show me in the Constitution where it says you have a right to…" is a bullshit argument.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Thad (profile) says:

Re: Re: Re:6 Norms

Right, because as we all see here on Tech Dirt, judges can never be wrong.

Judges can be wrong, but their opinions are legally binding. Yours aren’t.

Further, "judges can be wrong" is a worthless statement. Yes, it’s true. In the same way that, to borrow an analogy from Ken White, "some snakes are poisonous" is true.

If you’ve been bitten by a snake, and you ask a doctor if it was poisonous, "some snakes are poisonous" is a useless, ridiculous answer.

Similarly, if you’re discussing a legal decision, and you ask if it was correct, "some legal decisions are wrong" is a useless, ridiculous answer.

Unless you can explain why this judge was wrong in this case, you are not making a relevant argument.

(Note: "Show me in the rulebook where it says a dog can’t play basketball" is also not a relevant argument.)

All the judge did was grant a temporary order returning the credentials while the case moves forward.

That is the effect of the order, yes. It is not the substance of the order.

Judges don’t just issue orders without explanation or legal justification. The judge granted a temporary restraining order based on the constitutional justification that the White House failed to follow due process in its decision to revoke Acosta’s press pass. Further, he outlined a list of steps that due process would entail.

The judge’s order was not the simplistic difference of opinion that you’re making it out to be.

The judge issued an order. It was specific and it was grounded in case law. "I think it’s bullshit" does not refute the argument, and your "show me in the Constitution where it says…" deflection demonstrates that you’re either being disingenuous or have a child’s understanding of how constitutional law works.

Put up or shut up, Mr. Coward. Address the actual arguments in the legal case and why you believe they were decided incorrectly, or be quiet and let the grownups talk.

Anonymous Anonymous Coward (profile) says:

Re: Re: Norms

There are limited choices for what to do when the question asked is not answered. Ask again, maybe a bit differently, or more pointedly, or report the non-answer and mention that the answer given did not answer the question asked, then speculate as to why, maybe even wildly.

Neither is likly to please the one who did not answer. Neither is actually uncivil. At some point, however, when it becomes clear that an answer is not forthcoming, then the questioner should just report the non-answer and speculate like hell about reasons why is might not have been answered. Which will likely piss the one who did not answer off greatly.

Things might move from civil to uncivil once it becomes apparent that no answer is going to be given, and grandstanding just becomes rude, for both. The solution to this is just not call an that person for questions, not revoke access. In the instant case the ‘cure’ was worse than the ‘disease’ as one of the two involved could have been the bigger person and realized their other options.

Anonymous Coward says:

the WH Press Conferences and WH Press Corps have always been worthless to the Ameican public. Abolish them permanently.

the conferences are dog & pony shows, where alleged journalists always fail to gather any worthwhile news. The WH staff/President use them as a PR tool to spin current issues.

The job of the WH Press Secretary is to make the boss (any President) look good, by trumpeting good news and minimiziing/ignoring bad news. Citizens and taxpayers get nothing out of this expensive stage show.

Thad (profile) says:

Re: Re:

the WH Press Conferences and WH Press Corps have always been worthless to the Ameican public.

I wouldn’t say always. But I’d agree that that’s been the case for decades.

Abolish them permanently.

I’d be fine with a cessation of the daily gaggle; I agree with your point that it’s largely kabuki and spin. But as long as we’re going to have it, the White House is subject to the First and Fifth Amendments.

John Cressman says:

Stop the leftist drivel... please...


“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.”

If you show me ANYWHERE in that text where it says “…unfettered access to the President and Press Room”, we can talk… until then… don’t try to convince me that access to the press room has anything to do with the 1st amendment.

Just like you can’t yell “Fire!” in a crowded theater – even though it’s FREE SPEECH – you can’t act like a fool in the press room and expect there not to be consequences.

Geez people… grow up and put on the big boy pants.

Anonymous Coward says:

Re: Stop the leftist drivel... please...

access to the press room has anything to do with the 1st amendment.

If you can’t see how the first amendment would be related to the place in the White House called THE PRESS ROOM, then I agree, there’s no point in trying to convince you of anything.

Just like you can’t yell "Fire!" in a crowded theater


James Burkhardt (profile) says:

Re: Re: Re:2 Stop the leftist drivel... please...

You are right, I actually think Popehat’s Law should be “Anyone who cites ‘You can’t yell fire in a crowded theater’ in a 1st amendment argument proves they do not understand the laws and legal precedent involved and does not understand what the meaning of that quote and can immediately be ignored”.

Anonymous Coward says:

Re: "Hard" pass?

Google has failed me. For some reason the only explanations I could find were a Video of someone explaining what a hard pass is – why this isn’t somewhere easily accessible in text form is beyond me. That or I’m looking for it in the wrong way. If someone’s able to provide a source, please do?

“Hard pass” represents more permanent access, usable for multiple events. All press conferences, etc.
“Soft pass” if that’s even the term uses, would probably represent a one-time pass for a single event.

If anyone can confirm…

Leigh Beadon (profile) says:

Re: "Hard" pass?

A hard pass is granted after a journalist is put through a pretty heavy security screening, and basically gives them full access to all press briefings without going through an onerous security process every time.

Journalists can also get passes to individual briefings, in which case they have to wait in line to go through security every time, and then be escorted at all times by secret service members.

That One Guy (profile) says:

'No trying to hold our feet to the fire.'

Given followup questions are all but required if the original answer is a dodge, this will effectively allow them to completely ignore any questions they don’t feel like answering by prohibiting anything aimed at ‘explaining’ a (non-)answer and/or a rephrase to highlight the flaw in an ‘answer’.

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