White House Suspends Another Reporter's Press Pass, Once Again, Raising 1st Amendment Concerns

from the not-how-it-works dept

As you’ll recall, last year, the White House tried to remove CNN reporter Jim Acosta’s press pass over a silly made up controversy claiming that he had “assaulted” an intern in trying to hold onto the microphone while the intern had tried to pull it away. CNN sued and a court sided with them in blocking the White House’s action. Soon after, the White House released new rules, that we mentioned left them open to future 1st Amendment challenges.

Well, here we are. On Friday, the White House removed Playboy reporter Brian Karem’s press pass, claiming it was about some sort of weird yelling match Karem had with ex-Trump official Sebastian Gorka at Trump’s silly social media troll summit back in July. Karem immediately said he’d sue over the removal and his attorney Ted Boutrous has sent a series of letters to White House press secretary, Stephanie Grisham over the last few weeks. The opening of the first one lays everything out pretty nicely.

We write on behalf of our client, Brian Karem, who serves as the White House correspondent for Playboy, in response to your August 2, 2019 letter informing of your “preliminary decision” to suspend his hard pass for 30 days, supposedly “due to [his] conduct at the press event in the Rose Garden on July 11, 2019,” and giving him one business day to submit a response before you “make a final decision on the matter.” We object to this arbitrary and unfair procedure threatening to deprive Mr. Karem of his constitutionally protected liberty and property interests in his hard pass, which would flatly violate the First Amendment and the Due Process Clause and the principles established by the D.C. Circuit’s decision in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) and many other cases. Your invocation of the Rose Garden event weeks after it occurred and without any notice whatsoever that you were considering taking action against Mr. Karem is the opposite of due process, and is clearly pretext for punishing Mr. Karem based on his viewpoint and the content of his reporting on President Trump.

It’s the “arbitrary and unfair procedure” part of the above quote that is most important. The White House can’t just cook up reasons to remove someone if the real reason is they don’t like his reporting (as was the case with Acosta).

In a later letter, Boutrous points out that Grisham herself has admitted to not following any basic due process, as required by the 1st Amendment:

Your email of last night revealed that you failed to conduct a reasonable investigation before reaching your preliminary decision. Among other deficiencies, you admit that you did not speak to a single witness. You did not speak to Sebastian Gorka, Jim Hanson, or any of the other individuals who are seen on video taunting and/or threatening Mr. Karem. You did not speak to any of the journalists who were standing alongside Mr. Karem in the press pen and observed firsthand what happened. Nor did you speak to Mr. Karem himself, despite his efforts to speak with you. In fact, you claimed you lack evidence that Mr. Karem made any attempt to speak with you. Enclosed with this letter are emails reflecting his efforts.

You have also elected to ignore publicly-available evidence that Mr. Gorka has trumpeted his confrontation with Mr. Karem, bragging that he took on the “fake news industrial complex,” as well as evidence that the President himself viewed the events as humorous. All of this information is highly relevant to your decision, yet you have deliberately chosen to ignore it.

After suggesting that Gorka was the one who initiated and escalated the confrontation, while Karem was the one who sought to de-escalate it, Boutrous also notes the following:

The President himself has used far stronger language and imagery. Among other things, he has tweeted an image of himself wrestling a CNN icon to the ground, and stated that a congressman who body-slammed a reporter is “my kind of guy.” He has also urged his supporters to “knock the hell” out of protestors at his rallies, and remarked about one protestor, “I’d like to punch him in the face.” If the President’s statements cannot reasonably be understood as endorsing or inciting violence, the White House cannot possibly deem Mr. Karem’s offer to “go outside and have a long talk” as over the line.

None of this seemed to matter. In the official suspension notice, Grisham insists that Karem’s comment to go outside and have a conversation was obviously a threatening statement.

It seems likely that Karem will now sue and we’ll get yet another court to weigh in on the process by which the President (any President, not just this one…) can remove press passes.

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Comments on “White House Suspends Another Reporter's Press Pass, Once Again, Raising 1st Amendment Concerns”

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71 Comments
Mike Masnick (profile) says:

Re: Re:

Then you clearly do not understand the 1st Amendment or the law. As with Trump’s Twitter feed, if the White House is opening up a place for the public or the press it must provide equal access, and not make decisions based on content. It can set up rules for who qualifies as press for a WH press pass, but it cannot base those rules on the content of the reporting.

So, yes, there actually is a 1st amendment right to anyone who meets the criteria to get a press pass.

This is why the court sided with Jim Acosta. Odd that you ignore that.

Anonymous Coward says:

Re: Re:

Seriously? It’s RIGHT THERE in the article! Here, I will throw you a bone:

"…which would flatly violate the First Amendment and the Due Process Clause and the principles established by the D.C. Circuit’s decision in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) and many other cases."

Your next logical step would be to google "Sherrill v. Knight" and read.

Anonymous Coward says:

Re: Re:

Conversely, a reporter can’t act like a complete asshole and flout the rules of conduct, then claim any punishment that follows is because "they just don’t like what I write".

If you read the details, which you obviously did not (or, just as likely, chose to believe some incredibly one-sided sources), Karem made a joke. The only ones who acted like "complete assholes" who "flout the rules of conduct" were Gorka and his friends.

Anonymous Coward says:

Re: 1st Amendment issue?

well, it’s quite a stretch to call this a First Amendment issue.
That Amendment is specifically a restriction on Congress in lawmaking — Not the President nor his management of government property (White House in this case).

First Amendment says Congress can’t restrict what the public/press say — but does not imply that the public/press have open access to all Federal activities and facilities.

Any president has complete authority and discretion to decide who may or may not access the White House… and under what conditions.

The Office of an elected U.S. President comes with vast discretionary power in a thousand serious Federal activities.
It is absurd to suggest that a President somehow legally lacks any arbitrary decision authority in this very trivial matter of reporter access.

Stephen T. Stone (profile) says:

Re: Re:

Not entirely true.

The First Amendment may only explicitly mention Congress, but the Supreme Court holds that it applies to the entirety of the federal government. It also holds that, thanks to the due process clause of the Fourteenth Amendment, it applies to state governments as well. Thus, the government in general cannot abridge the rights of free speech and a free press.

Where this gets tricky is that, yes, the First Amendment on its own doesn’t grant members of the media any kind of special rights or privileges. Additionally, the general public doesn’t have a First Amendment right to be on White House grounds. But where those rights don’t exist, others do — rights such as due process, which a federal court ruled the White House denied in the the case of its revoking Jim Acosta’s press pass. Whether the government engaged in some form of viewpoint discrimination based on where Acosta worked by revoking his pass, and whether that act violated the First Amendment, is still up in the air. Also: I doubt courts would be too happy with the Trump administration if it decided to boot a reporter because they’re Black or gay or disabled, never mind any combination thereof.

So yes, there aren’t a whole lot of actual restrictions on what the White House can do in re: who to allow and deny a press pass. Then again, a White House not run by a vainglorious megalomaniac would know enough not to test the courts on such matters.

Anonymous Coward says:

Re: Re: a trivial 1st Amendment issue

“It is absurd to suggest that a President somehow legally lacks any arbitrary decision authority in this very trivial matter of reporter access.”

Whelp since they already lost one lawsuit about this very issue. I would say you’re completely full of shit. You wanna go 0 for 2 on the 1st bro?

ANANONANA says:

Re: Re: Re: a trivial 1st Amendment issue

"very trivial matter"

lol It’s only a very trivial matter if you don’t give a shit open a free press or open debate. Of course the current administration gives no shit about either.

This is exemplified by that fact that Trump only does campaign rallies and not press conferences,

That One Guy (profile) says:

Re: Re: 1st Amendment issue?

That Amendment is specifically a restriction on Congress in lawmaking — Not the President nor his management of government property (White House in this case).

Were that an accurate reading of the first amendment then no-one but congress could violate it, as any member or agency of the government could violate free speech with impunity simply because they’re not congress, and as that is clearly not the case…

First Amendment says Congress can’t restrict what the public/press say — but does not imply that the public/press have open access to all Federal activities and facilities.

Yes and no. The press and/or public don’t have open access to federal property or events, but if they are allowed in(say for a press briefing) then they cannot be excluded due to legally protected speech as that would be a violation of the first.

Any president has complete authority and discretion to decide who may or may not access the White House… and under what conditions.

As noted above only in the original invitation, once people are there or have been invited then they do not have the ability to just boot people on a whim.

The Office of an elected U.S. President comes with vast discretionary power in a thousand serious Federal activities.

Violating the first amendment in punishing someone simply because they said mean things about you that were entirely legal speech is not one of them however.

It is absurd to suggest that a President somehow legally lacks any arbitrary decision authority in this very trivial matter of reporter access.

It’s ‘absurd’ to believe that the president is bound by the first amendment? Have fun with that idea, just keep in mind that the argument has already been made and rejected once by a court.

Anonymous Coward says:

Re: Re: Re: 1st Amendment issue?

OK… so how many journalists in the U.S. are not issued White House Press-Passes due to "arbitrary" criteria of the White House and despite the 1st Amendment ??

Don’t you care about the many thousands of eager journalists who have been totally denied any White House access over the past century ??

Almost all journalists are denied White House access, no matter who the President is.
By focusing on just two obscure reporters in Trump’s era — you miss the big picture entirely.

That One Guy (profile) says:

Re: Re: Re:2 Comparing apples to great danes

Love the faux outrage/indignation. It’s not enough to cover up the fact that you’ve ignored both my explanation and the explanations of others why and how you’re wrong, but it is at least entertaining, so that’s something at least.

That many individuals do not get a press pass is irrelevant, once someone has been granted a press pass there are limitation in place on the government about how and when they may revoke them, and in retaliation for legal speech and/or without due process are both violations of those restrictions.

As Mike put it in the article covering the last time the WH got slapped down when they pulled this stunt:

‘The Constitutional elements here are pretty clear. The White House is allowed to set non-content-based rules for who gets a press pass, but once they do that, they absolutely cannot remove a press pass for anything having to do with content, and they can’t simply make up rules to remove someone without any form of due process.

By focusing on just two obscure reporters in Trump’s era — you miss the big picture entirely.

The big picture being ‘Look, a distraction!’? I mean, it was a valiant attempt to downplay the White House pulling press passes because they don’t like people, but it doesn’t change the fact that the WH is pulling press passes because they don’t like people, have been slapped down once for it already, and are likely to be slapped down again should the matter go to court again.

Mike Masnick (profile) says:

Re: Re: Re:2 1st Amendment issue?

OK… so how many journalists in the U.S. are not issued White House Press-Passes due to "arbitrary" criteria of the White House and despite the 1st Amendment ??

None. If it’s arbitrary and based on the content of their work they cannot be denied. The White House is allowed to set standards, but those standards must be applied fairly and cannot be based on protected speech. The standards could be based on things like "size of audience" or some sort of other non-speech-based objective criteria.

So the answer to your question is that no one has been arbitrarily denied a pass. The White House has rules that it must follow.

Don’t you care about the many thousands of eager journalists who have been totally denied any White House access over the past century ??

They don’t exist. You have no clue what you’re talking about — as already demonstrated by people debunking your false claims in your first comment and you should probably stop digging. Seriously.

Almost all journalists are denied White House access, no matter who the President is.

This is false.

By focusing on just two obscure reporters in Trump’s era — you miss the big picture entirely.

These are not obscure journalists and there is no big picture missed here. You should maybe shut up before you look even worse.

Anonymous Coward says:

Re: Re:

He put his hands on her without her permission, that is assault.

"I better use some Tic Tacs just in case I start kissing her. You know I’m automatically attracted to beautiful—I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab ’em by the pussy. You can do anything." – Donald Trump – being the asshole that he is

When that matters, I’ll give a shit about what you think.

Anonymous Coward says:

Trump is not preventing anyone from reporting on him

There are no restrictions on any of the press about what they can report on him. Trump or any other president has the right to restrict who is in the press pool. In fact, Trump could just decide not to have a press conference, or to have a press conference to an empty room and make the reporters watch a video feed. There is no First Amendment right for a reporter to even have access to the White House press briefing. The briefings only started sometime in the 1960s with the advent of television.

The Press has the right to report on the president. They do not have the right to force access.

Anonymous Coward says:

Re: Trump is not preventing anyone from reporting on him

You’re conflating denial of a press pass in the first instance (which would be OK provided it’s done in a way that is viewpoint-neutral and comports with due process, see Sherrill v. Knight for the criteria for that), with retaliatory revocation of said press pass based on First Amendment protected activity (which is NOT OK).

Just because something’s a privilege doesn’t mean the government can take it away from you for an unconstitutional reason. (Imagine getting your driver’s license revoked for writing an editorial in the local paper criticizing the local police.)

TFG says:

Re: Trump is not preventing anyone from reporting on him

The Press has the right to report on the president. They do not have the right to force access.

And once granted access (which this reporter was) the President does not have the right to revoke that access arbitrarily, or for reasons related to the viewpoints of the Press in question.

Anonymous Coward says:

…hostilities between presidents and the press have been an ongoing battle since George Washington.

Our second President didn’t have a great record with the press. In fact, it was downright un-American. John Adams was so concerned about a wayward press, that he signed into law the 1798 "Sedition Act", which made publishing anything critical of the government illegal.
How’s that for a real constitutional issue.

Anonymous Coward says:

Re:

It is true: Both the Sedition Act and this revocation come into direct conflict with the first amendment. The only reason that the Sedition Act was never nullified by the Supreme Court was that it was allowed to expire two years before the Supreme Court ever nullified a law.

It should never be suggested that Trump is the only president whose administration has done something that crossed legal boundaries. In fact, I think you’d be hard-pressed to find an administration that never crossed a legal boundary. William Henry Harrison, perhaps, who was only President for a month?

But doing something unconstitutional is not any better just because someone else got away with it before. They’re both bad, and both should never have happened.

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