Judge Blocks White House From Pulling Jim Acosta's Press Pass, But The Battle Continues

from the freedom-of-the-press dept

Update: The White House has officially restored Acosta's press pass, and also established new rules for press conferences. We'll bring you more info on those rules after we've had a closer look.

Last week I wrote about the case that CNN and its reporter Jim Acosta had filed against the White House for the removal of his press pass over some trumped up claims that he had "assaulted" a White House intern (he did not, he simply resisted returning the microphone to her after she attempted to grab it from him). As we noted, the removal of the pass was clearly based on the content of his questioning and it seemed fairly obvious that the White House would lose the lawsuit, especially based on the existing precedent in Sherrill v. Knight, which gave CNN clear basis under both the 1st Amendment and the 5th Amendment.

Perhaps not surprisingly, a bunch of Trump supporters quickly ran to the comments to screech at me about how wrong and biased I was against them. Let's be clear: this is bullshit. I would have written the same article had Obama removed the press pass of a Fox News reporter under identical circumstances (and, frankly, the Trump supporters here should learn to think beyond their obsession with defending "dear leader" in everything he does, because the same rules will apply when other Presidents are in charge, and they may not always like it in the other direction). 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.

The judge in this case, Timothy Kelly, (who, we'll note, was appointed by Trump, even though it shouldn't make a difference), moved quickly on this case, issuing a temporary restraining order on the White House and ordering it to return Acosta's press pass Friday afternoon. The basis for his ruling from the bench was the 5th Amendment due process question, noting that there was no clear reason at all given by the White House:

the government must provide Mr. Acosta due process if it is to revoke his hard pass. Accordingly, the likelihood that the plaintiffs succeed on the First -- on the Fifth Amendment claim hinges on whether the government provided adequate due process to Mr. Acosta. The court in Sherrill held that this process must include notice, an opportunity to rebut the government's reasons and a written decision. And all the court -- 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. There is no evidence that one of the few exceptions to this rule would apply here such as some kind of emergency. So I do hold that plaintiffs have demonstrated a likelihood of success on their claim that adequate process was not provided to Mr. Acosta. Indeed, whatever process occurred within the government is still so shrouded in mystery that the Government could not tell me at oral argument who made the initial decision to revoke Mr. Acosta's press pass -- his hard pass.

Now, it is true that the public and Mr. Acosta were eventually provided two things. First, explanations as to why his hard pass was revoked through Ms. Sanders's tweets; and a written statement of explanation, apparently prompted by this litigation, but given their timing and their lack of connection to Mr. Acosta's opportunity to rebut -- which we'll talk about in a moment -- these belated efforts were hardly sufficient to satisfy due process.

Of course, in typical White House fashion, members of the Trump Administration have continued to trip over each other to make the dumbest statement possible in response to all of this, some of which mean that CNN has already gone back to court in this case, and it's going to continue. First, White House press secretary Sarah Sanders made the following nonsense statement:

"...the court made clear that there is no absolute First Amendment right to access the White House."

Except... that's not what the court said at all. The court actually said that reporters absolutely are protected by the 1st Amendment once they are given a press pass, but that it was premature to rule on the 1st Amendment question when the 5th Amendment procedural question could be dealt with first.

Then the President himself stepped in with more nonsense claiming:

"We want total freedom of the press."

Uh, no you don't. You're constantly whining about the press, threatening them and their revenue sources, or threatening to "pull" some non-existent licenses. And, of course, Trump then went on to misstate what Kelly's ruling said:

But you have to act with respect when you're at the White House, and when I see the way some of my people get treated at news conferences, it's terrible. So we're setting up a certain standard, which is what the court is requesting.

No, the court is requiring (not requesting) due process, which is not that you get to make up new rules to kick out reporters who are asking you questions you don't like (or even ones who are grandstanding). And, reporters don't need to "respect" the President. Indeed, it's better if they don't, because their role is to challenge the President and to ask tough questions that no administration likes.

Then, over the weekend, things got even more ridiculous, with the White House telling Acosta they plan to remove his press pass again once the 14 day temporary restraining order is up, and arguing that this is part of their due process to get around the 5th Amendment issues:

After CNN won a temporary restraining order on Friday, forcing the White House to restore his press pass for 14 days, White House officials sent Acosta a letter stating that his pass is set to be suspended again once the restraining order expires.

From the looks of the letter, the W.H. is trying to establish a paper trail that will empower the administration to boot Acosta again at the end of the month.

Of course, as Julian Sanchez points out, telling a reporter ahead of any process that you'll be removing his press pass would seem to be evidence of your own lack of due process, so this might get rejected on 5th Amendment grounds again (while still avoiding the 1st Amendment questions, which would likely go against the White House as well...).

The letter itself is quite ridiculous. It still says that they're planning to remove the press pass for his actions back at the November 7th press conference, when the court already made clear that the White House had no legitimate reason to do so based on that conference.

In response to this, CNN has already gone back to court, saying that this retrospective due process is not nearly enough. They ask for a hearing as quickly as possible to deal with the White House making this move.

Either way, this whole fight seems particularly stupid, and one that the White House simply cannot win in any court other than the one of Trump's super fans insisting that everything the President does must be perfectly correct. It is not. It is unconstitutional. And the sooner Trump's kneejerk fans recognize that Trump can and does make mistakes, the sooner they can get back to actually respecting the Constitution they now only pretend to support.


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  • icon
    Thad (profile), 19 Nov 2018 @ 9:47am

    Ken White made a pretty good argument in last week's All the President's Lawyers that the court would rule only on the Fifth Amendment question and not the First Amendment one. There's a simple reason for that: the due process argument is a simpler one, and if a judge can rule on a simple argument and not have to analyze a more complex one, that's what he's probably going to do.

    Ken turned out to be right.

    At any rate, quick reminder for the Fox News viewers in the comments: Fox News is supporting CNN in this suit (warning: autoplay video), for precisely the reasons Mike outlines in this post: Fox knows that if a Republican president can discriminate against CNN for its viewpoint, a Democratic president can do the same to Fox.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 19 Nov 2018 @ 10:27am

      Re:

      At the rate things are going looks like the judge is going to have to address the First Amendment concern, as the WH dances around the Fifth by trying to claim that simply doubling down on the original justification put forth once the restraining order lapses is enough to bypass the due process concerns.

      reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 19 Nov 2018 @ 10:54am

        Re: Re:

        IANAL but I don't think that's how it works. If you violate due process, and a court issues a restraining order, and then you violate due process again, the court doesn't need a different justification; another due process justification will do just fine.

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 19 Nov 2018 @ 1:44pm

          Re: Re: Re:

          Update: the White House just announced new rules stating that they can revoke a reporter's press pass for asking an unapproved followup question.

          So yeah, we can probably expect a First Amendment challenge pretty soon.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 20 Nov 2018 @ 9:06am

            Re: Re: Re: Re:

            Update: the White House just announced new rules stating that they can revoke a reporter's press pass for asking an unapproved followup question.

            I hope I'm misreading that, because if I'm not then they'd basically be able to exert complete control over any press briefings by simply refusing to approve any questions they don't like. 'You're allowed to lob softballs we can use to make us look good, but ask the wrong question and you're out.'

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            • icon
              Thad (profile), 20 Nov 2018 @ 9:28am

              Re: Re: Re: Re: Re:

              I think what it means is "we have to give you permission before you can ask a followup question."

              While this does open up 1A questions and I expect it to be challenged in court, it bears noting that the White House (every White House) basically dodges and weaves any time anyone asks a question they don't want to answer. It's just that past presidents haven't tried to revoke press credentials over it.

              reply to this | link to this | view in chronology ]

              • icon
                nasch (profile), 20 Nov 2018 @ 10:41am

                Re: Re: Re: Re: Re: Re:

                And the White House press organization (whatever it's called, I don't remember exactly) has stated they intend to continue asking follow up questions as always. So it sounds like they're planning to call Trump's bluff, if that's what it is.

                reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      Skippy (profile), 19 Nov 2018 @ 10:58am

      Re:

      But, they aren't discriminating against CNN's viewpoints, they are addressing a reporter that should had been escorted out right after he was asked 3 times to sit down and be quiet.

      As I posted, CNN could easily send another reporter to get their viewpoints. They are not entitled to send Jim, just because that is who they want to send.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Nov 2018 @ 11:04am

        Re: Re:

        It’s a good thing you aren’t a judge there skippy.

        reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 19 Nov 2018 @ 11:06am

        Re: Re:

        They are not entitled to send Jim, just because that is who they want to send.

        Of course they are. What law do you believe prevents them from doing so?

        reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 19 Nov 2018 @ 12:25pm

        Re: Re:

        I'm asking you here and now -- even though I have no authority whatsoever to do so (just like Trump and that intern) to sit down and stop posting.

        Are you obligated to obey me, even though I have the same authority (none) to tell you to shut up that Trump had to tell that reporter to shut up?

        If I can't do it despite the fact that it is LESS illegal for me to silence you than it is for an elected official to do so, then how can Trump do it when it's a felony every time he says it?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Nov 2018 @ 2:15pm

        Re: Re:

        If this Reporter is entitled to be there, then I think myself and anyone else that wants to be there, should also be allowed to be there as is OUR RIGHT!!!! What's the difference? There are no special rights for so-called Reporters as the supreme court already rules that anyone can be a reporter.

        The fact of the matter is this rude, dipshit of a reporter with ZERO class never did this with Obama. He's a discusting., completely rude far left-wing reporter. He should get the boot. Anyone else from CNN can take his place. he has no more right to be there than any other American.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Nov 2018 @ 2:26pm

          Re: Re: Re:CapitaliSe RandOm wOrds makes yoU Smrt

          A bucketful of ignorance wide a side of whataboutObama. Stick to Fox News junior, or I shall be forced to taunt you a second time.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Nov 2018 @ 2:41pm

          Re: Re: Re:

          If this Reporter is entitled to be there, then I think myself and anyone else that wants to be there, should also be allowed to be there as is OUR RIGHT!!!!

          Absolutely! First you must obtain press accreditation for either the House or Senate Press Gallery, then you can apply for White House credentials and begin the extensive security screening process (for a hard pass) or be escorted by the secret service (for a one-time pass to a specific briefing). Both Congress and the White House are free to set whatever specific rules they want for obtaining these credentials, as long as (a) they meet the due process requirements of the 5th amendment and (b) they are content-neutral and not used for viewpoint discrimination so as not to violate the 1st amendment.

          The security process does take some time though, so I suggest you get started soon.

          reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 19 Nov 2018 @ 10:23am

    Presenting Exhibit A: The WH's own statement.

    Court: You're not allowed to do X, and as a preliminary, before things get any further, here's an order preventing you from doing X for two weeks while things develop.

    WH: As soon as the temporary restraining order is over, we are absolutely going to do X!

    While this is entirely within character for Trump and his WH I can't help but wonder how(or even if) they think that's going to work out for them. They either did not run that by any lawyers, or the ones they did run it past are just abysmal at their jobs and need to be replaced, pronto.

    reply to this | link to this | view in chronology ]

    • icon
      ldd (profile), 19 Nov 2018 @ 10:45am

      Re: Presenting Exhibit A: The WH's own statement.

      There's also the possibility that the WH got excellent legal advice by competent lawyers but decided to ignore this advice.

      It's a scenario that Ken White has brought up over and over again on "All the President's Lawyers". People in power have the ability to buy excellent representation. However, they also tend to nullify the value of the advice they get because they think they know better than their lawyers.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 19 Nov 2018 @ 10:49am

        Re: Re: Presenting Exhibit A: The WH's own statement.

        As that would be entirely believable and in-character action, I can certainly see that happening, yes.

        reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 19 Nov 2018 @ 11:00am

        Re: Re: Presenting Exhibit A: The WH's own statement.

        People in power have the ability to buy excellent representation.

        Up to a point.

        If you make a habit of not only ignoring legal advice but also firing your lawyers, mocking them, or -- perhaps most importantly -- failing to pay them, you'll lose your ability to buy good representation pretty quickly.

        And that's without getting into how representing Trump could harm lawyers' future careers at this point.

        Course, Ken's also fond of pointing out that there's more than one way to be a "good lawyer". He's often noted that Avenatti's flamboyance has hurt him in court but helped him in the publicity department (though Avenatti's luck may be running out given his recent eviction and domestic abuse arrest).

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    • icon
      nasch (profile), 19 Nov 2018 @ 6:25pm

      Re: Presenting Exhibit A: The WH's own statement.

      abysmal at their jobs and need to be replaced, pronto.

      Pretty much a summation of most of the Trump administration.

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 19 Nov 2018 @ 11:15pm

      Re: Presenting Exhibit A: The WH's own statement.

      either did not run that by any lawyers, or the ones they did run it past are just abysmal

      Rudolph Giuliani

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  • This comment has been flagged by the community. Click here to show it
    identicon
    John Cressman, 19 Nov 2018 @ 10:37am

    Blah... blah... TechDirt Leftist drivel...

    Let's get one things straight. FREEDOM OF THE PRESS refers to, quite literally, the freedom to PRINT (in any medium) any content you feel like. There is NO mention of being allowed in certain venues, even the White House. There is no RIGHT (other than imaginary) to access to the White House. That's why there ARE press passes. To LIMIT who can get in and who can't. If it were a RIGHT, then ANYONE could get in... and in this day and age, I mean ANYONE with a blog, a instagram account or more than 1 facebook friend.

    Acosta was being a grand-standing arse - as usual - and then caused a scene when the person tried to move on to the next reporter.

    Not only should he be banned, but I'd look into disorderly conduct charges as well.

    As far as 5th amendment... um... NO. Just... NO. It does not apply - AT ALL. Being in the press room is a PRIVILEGE. One Acosta abused. And, when the adults in the room tell him to basically "go to his room" by taking his pass, he throws a fit and goes running to a judge who obviously doesn't understand the Constitution (and yes, I know he's a Trump appointee).

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 19 Nov 2018 @ 10:41am

      Re: Blah... blah... but TRUMP

      Hey John, thanks for expressing your opinion without weighing it down with those silly facts.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 19 Nov 2018 @ 10:44am

      Who to believe, actual lawyers, or random person...?

      Please clean up the excess straw left over after your comment so that it doesn't create a mess.

      As has been explained multiple times now, in the articles and comments, the WH does not have to allow the press into meetings like this but if they do they aren't allowed to discriminate against them simply because they don't like someone.

      If you think it's a lot easier than that by all means take it up with the judge and explain why he's wasting his time, because he certainly thinks that the WH overstepped it's bounds here.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2018 @ 10:45am

      Re: Blah... blah... TechDirt Leftist drivel...

      You're just wrong. Try reading something.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2018 @ 10:45am

      Re: Blah... blah... TechDirt Leftist drivel...

      Wow, the White House should hire you as their lawyer. Judges absolutely love legal arguments like "um.... NO. Just... NO" and they get really bored of how most lawyers cite precedent in detail.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2018 @ 10:51am

      Re: Don’t just point, when you can point AND laugh

      Ladies and gentlemen Trumps best and brightest on display here. Please do not stick your hands through the bars as they are there for your safety.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2018 @ 10:59am

      Re: Blah... blah... TechDirt Leftist drivel...

      he throws a fit and goes running to a judge who obviously doesn't understand the Constitution (and yes, I know he's a Trump appointee).

      What a calming thought that is - a self-proclaimed stable genius nominates a judge that doesn't understand the Constitution, and it ends up biting him in his large orange ass.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 19 Nov 2018 @ 11:00am

      Re: Blah... blah... TechDirt Leftist drivel...

      I'm gonna assume you are a White Male Christian who owns at least an acre of land. If not, you probably shouldn't be trying to employ an 'original construction' argument. If you are, this is a weak argument. The journalists still have first amendment rights, even if you choose to ignore modern evolution of the 1st. Like the right to speak, or protest that the president did not answer his question, which is what he got booted over.

      In fact, one of the major issues in addressing the first amendment complaints will involve the significant dissonance between the press pass process and the public forum the white house has created.

      We recognize press passes as a way to pre-clear journalists into public forums with limited capacity and potential security issues (like face time with the president). The courts have repeatedly found that removing a press pass, once granted, is a violation of the right of access to the public forum, that can only be remedied by providing due process.

      I mean, sure we can throw out judicial jurisprudence involving the 1st amendment entirely, but this judge did his job, which is to apply precedential decisions to the facts at hand. IT was a clean and easy decision with binding precedent behind it. Don't blame this judge for following the system you claim he doesn't understand.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 19 Nov 2018 @ 12:30pm

      Re: Blah... blah... TechDirt Leftist drivel...

      You seem to have missed that it is a criminal act for a public official to strip someone of a privilege because that official dislikes that someone's political beliefs.

      It doesn't matter if it's a right or a privilege, what matters is that someone was harmed because they did something that was perfectly okay under the law, and were retaliated against for it.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Nov 2018 @ 2:18pm

        Re: Re: Blah... blah... TechDirt Leftist drivel...

        The reporter is a rude, Left wing nut with zero class who also assaulted an Intern.

        While he gets his way and is back, Trump can just not call on him.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Nov 2018 @ 2:29pm

          Re: Snowflake is melting

          If all you got is insults and debunked garbage. I think WND.com is more your speed kiddo.

          reply to this | link to this | view in chronology ]

        • identicon
          bob, 19 Nov 2018 @ 9:42pm

          Re: Re: Re: Blah... blah... TechDirt Leftist drivel...

          Watch 5he original recording of the full event not the edited version by info wars and you will see no assault (the excuse the Whitehouse gave for the revocation). Which is why the Whitehouse cant just yank the credentials.

          reply to this | link to this | view in chronology ]

        • icon
          techflaws (profile), 19 Nov 2018 @ 10:05pm

          Re: Re: Re: Blah... blah... TechDirt Leftist drivel...

          If you'd actually care about class, you wouldn't defend Trump, now wouldn't you?

          Also, if what Acosta did is assault, what about Trump's assaults on women he bragged about? At least Acosta didn't grab the intern by the pussy. Not even in the doctored version of the video you clowns still pretend show the real events.

          reply to this | link to this | view in chronology ]

          • icon
            Toom1275 (profile), 19 Nov 2018 @ 10:27pm

            Re: Re: Re: Re: Blah... blah... TechDirt Leftist drivel...

            That's why their program has mostly switched over to the "well then let's say he was rude (never mind he was doing his job amd it was Trump that was rude)" narrative.

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Nov 2018 @ 8:50am

          Re: Re: Re: Blah... blah... TechDirt Leftist drivel...

          Funny how the White House always calls on him, then.

          Almost like they're looking for fake confrontation to rile up gullible supporters.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Skippy (profile), 19 Nov 2018 @ 10:56am

    What?

    Maybe, I am missing something but what law is it that says Jim Acosta is entitled to enter the WH?

    I would understand if the WH said that CNN reporters can't enter, but why can't they stop a single person from doing so? The PRESS is not Jim Acosta, it is the organization he works for and reports for. They can easily send someone else in there to do the same job he was doing and to get the same "press" he was getting.

    BTW, the content of his questioning had absolutely nothing to do with his removal. It is the same BS content that CNN continues with. He was asked numerous times to sit down and be quiet after he asked and Trump responded to him the first time. He rudely continued on after multiple request, even after the microphone was actually taken from him. He should have been removed immediately after he had to be asked a 3rd time to sit down and be quiet.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 19 Nov 2018 @ 11:01am

      Re: What?

      Hi Skippy,

      You seem to have missed the previous article. It's linked in the first sentence of this one; here's the link again:

      CNN Lawsuit Seeks To Show That Trump Can't Kick Reporters Out For Asking Tough Questions

      Give it a read.

      In particular, pay attention to this part:

      Either way, the end result was that the White House removed Acosta's press pass, claiming it was because of what happened with the intern, when literally everyone knows it was because of his questioning (if you want to honestly argue that it was because of the intern, go away).

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2018 @ 11:06am

      Re: What?

      It’s one thing to be ignorant, skippy. It’s another thing to prove it by opening your mouth.

      reply to this | link to this | view in chronology ]

    • icon
      Leigh Beadon (profile), 19 Nov 2018 @ 11:08am

      Re: What?

      the content of his questioning had absolutely nothing to do with his removal

      I have to ask: do you honestly believe this? Like, have the White House's incredibly brazen and obvious lies about their reasons genuinely hoodwinked you so completely? Because I struggle to believe that's possible - nobody smart enough to form a sentence could be that credulous and naive.

      So... what is your motivation for saying this? Honestly?

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 19 Nov 2018 @ 6:28pm

        Re: Re: What?

        nobody smart enough to form a sentence could be that credulous and naive.

        You should watch some interviews with Trump supporters. It's disturbing but educational.

        reply to this | link to this | view in chronology ]

        • identicon
          M. E. Grant, 20 Nov 2018 @ 4:56am

          Re: Re: Re: What?

          " form a sentence "

          Stream of something-something-ness is not really at play here.

          "Learn to speak are language" - case in point. Someone had that on a banner at protest against migrants.

          reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 19 Nov 2018 @ 11:16am

      Re: What?

      So, I recommend the Podcast "LRC Presents: All the President's Lawyers" for last week. It gets an actual lawyer involved. But the logic goes like this:

      The White House issued a press Pass to Jim Acosta. This pass is a means of pre-clearing him as an obvious security risk and limiting the number of people present. The pass is issued to HIM, on behalf of CNN. When the White house has a press briefing, he is one of the few entitled to be present in the public forum the white house is creating.

      When the White house revokes his pass, once granted, There are 1st amendment concerns that the removal might chill questions the white house doesn't want, or unflattering coverage. So the courts have noted that while the White House can revoke that pass, it must allow for due process to show the removal was not based in first amendment protected activity.

      So, weird thing, he was asked to "sit down and be quiet" (not censorous at all), because he was asking a question the president didn't want to answer. He was repeatedly interrupted every time he asked that question. But strangely, rudeness is kinda part of the content of his speech. His actions can conceivably be seen as protesting the president's own rudeness and refusal to answer a pertinent, timely question. The first amendment also covers the rights to protest and petition the government in the public forum of the press pool. Its a mess. The complex interactions of the forum and space and security are complicated, which is why this judge is ruling on the fifth amendment due process grounds. The idea that the president is looking to dodge due process as expressed in the article should suggest how well they think their claims will play out.

      reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 19 Nov 2018 @ 11:28am

        Re: Re: What?

        Now that you and I have both recommended the episode, I suppose somebody should link it:

        Legal or Illegal? All the President's Lawyers, 2018-11-14 (warning: autoplay audio)

        I recommend that everybody give it a listen; it's a clear and concise explanation of the legal issues at play, and so far Ken's predictions have proven accurate.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2018 @ 11:02am

    To Bamboo Harvester

    “If you must eat crow, eat it while it's young and tender. For it will assuredly be tough and stick in the craw should you wait too long.”

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 19 Nov 2018 @ 11:43am

    trumped up claims

    I see what you did there...

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    David, 19 Nov 2018 @ 11:58am

    How is this not biased against Trump?

    Perhaps not surprisingly, a bunch of Trump supporters quickly ran to the comments to screech at me about how wrong and biased I was against them. Let's be clear: this is bullshit. I would have written the same article had Obama removed the press pass of a Fox News reporter under identical circumstances

    So? Nobody claimed that you are biased against Trump based on the spelling of his name. You are biased against Trump because of what he stands for. And he stands for petulant revenge and power abuse among other things.

    Claiming you are not biased against Trump when you clearly speak out against petulant revenge and silencing of the press makes about as much sense as some Trump supporter claiming to have no racial bias against Obama since he would be equally against Trump were the latter black.

    Get over it: you are biased against Trump and what he stands for. Being open to anything just means you are asking to get screwed by everyone.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 19 Nov 2018 @ 12:06pm

      Re: How is this not biased against Trump?

      ... what? Running with your argument the bias would still not be against Trump, but against 'petulant revenge and power abuse', which he engages in and therefore is objected to.

      Bias against a person is different than bias against particular actions that the person might engage in, with the first carrying the implication that what they do is wrong because they are doing it, whereas the latter is against the actions no matter who does them.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 19 Nov 2018 @ 12:14pm

      Bias against Trump's shitty behavior and positions

      I think the notion is that Masnick is also not biased against Trump because he's orange, has weird hair and is a baby boomer.

      If he were all those things but set rational policy and was able to not act so guilty and freak out over the Special Council investigation, and not be a shit to the press, then his regard for Trump would be different.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 19 Nov 2018 @ 1:12pm

      Re: How is this not biased against Trump?

      I am going to assume you are a bad satirist, rather than stupid. Either way, have a flag.

      reply to this | link to this | view in chronology ]

    • identicon
      Chip, 19 Nov 2018 @ 1:26pm

      Re: How is this not biased against Trump?

      Wait. Is this Satire?

      Every Nation eats the Paint chips it Deserves!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Nov 2018 @ 5:30am

      Re: How is this not biased against Trump?

      Get over it: you are biased against Trump and what he stands for.

      Well, to be fair, Trump is a clueless shitbag - and that's pretty much what he stands for. It's OK to be biased against those who don't even try to hide those qualities.

      reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 19 Nov 2018 @ 12:06pm

    Special Snowflakes

    Trump supporters here should learn to think beyond their obsession with defending dear leader

    It was established early in 2017 that the rules set by the anti-left did not apply to themselves. Everyone else were whining special snowflakes whereas their own offenses and pearl-clutching were legit.

    Defense of the new messiah and war on all he hates are their only consistent interests.

    These days, their statements stick to such consistent patterns, they seem more like the reflexive symptom of a sickness, rather than any genuine attempt at rational discourse.

    reply to this | link to this | view in chronology ]

  • icon
    Richard M (profile), 19 Nov 2018 @ 12:22pm

    We have already been to that dance.

    " (and, frankly, the Trump supporters here should learn to think beyond their obsession with defending "dear leader" in everything he does, because the same rules will apply when other Presidents are in charge, and they may not always like it in the other direction)"

    We have already had this dance a few times and just in recent history.

    Bush bypasses Congress the Republicans are fine with it and the Democrats lose their minds.

    Obama "rules with his pen" and the Democrats rejoice about how great a job he is doing and the Republicans lose their minds.

    Trump does whatever the hell he wants and pretty much tries to be a dictator and Republicans are happy happy and the Democrats are horrified.

    Both parties are to blame for the strengthening of the Executive branch and a weakening of the checks that are supposed to keep it reined in. Without that weakening Trump would not have the power to do as much damage as he is doing or will do in the future.

    Also there is certain amount of irony in regards to the press and how they are treated by Trump. One of the main reasons that Trump was able to win the Republican nomination was all the free publicity they gave him during the primary campaigns (especially early on). All that free attention sucked the air from the other candidates.

    They wanted him to win because of course there was no way that such a buffoon would be able to beat Clinton.

    Whoops....

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 19 Nov 2018 @ 1:22pm

      Re: We have already been to that dance.

      >>Obama "rules with his pen" and the Democrats rejoice about how great a job he is doing and the Republicans lose their minds.

      [citation needed]

      I've had issues with specific trump executive orders, but in my mind (and in the mind of the coverage I've seen) his number of orders is questionable only because of his own stated stance on the use of executive orders. Ive also noted how it suggests he continues to operate the Government like one of his top down businesses. But I don't argue his use of executive orders in the abstract is wrong. Im not flipping on that position based on who is in power. I'd like to see the coverage which is.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Nov 2018 @ 2:22pm

        Re: Re: We have already been to that dance.

        Obama has his phone and a Pen and will do what he wants.

        https://www.youtube.com/watch?v=EnmDqIvQD0s

        He sounds exactly like a dictator to me!!!

        reply to this | link to this | view in chronology ]

      • icon
        Richard M (profile), 20 Nov 2018 @ 8:34am

        Re: Re: We have already been to that dance.

        It is not about any particular executive order or policy. It is about the fact that The Democrats were just fine with Obama bypassing Congress when Obama was doing it but when a Republican does it then all of a sudden it is a huge problem. The Republicans are the exact same way, when it is there guy it is all good but when it was Obama they went nuts.

        It is not the policies that matter in the long run it is the process. Weaken the process for short term political gain is very bad for the long term stability of the country. Every time you weaken the checks and balances and give the Executive Branch more power you make it that much easier for others to do the same. In the long run that makes it easier for the country to slide from democracy to dictatorship.

        Personally I was not a huge Obama fan for a couple of reasons but a third Obama term would have been much better for the country than Trump by any measure. I do not think we are even close to seeing all the damage that Trump is going to do to this country especially if he gets reelected in 2020.

        I have to main problems with Obama.

        1. He was elected as the anti-war President but doubled down on every bad Bush policy and ended up killing more people and destabilizing more countries than Bush managed to do. He could and should have pulled us from Afghanistan, the capture and death of Osama Bin Laden would have been a perfect time to do so though personally I think he should have started the day after he took office.

        Countries have been invading Afghanistan for 100's of years and it always ends badly. When we finally do leave the country it will be the same as it was before we went there. Other than Nuking the whole country and turning it into a glass parking lot (something we should obviously not do) there is nothing we can do to change the country. It is just a black hole sucking down American lives and money for no good reason, the American people derive zero benefit from being there. I will stop here as could rant about this for a really long time.

        2. He did little or nothing to change how the war on drugs is causing the mass incarceration of African-Americans. While the DOJ did some work on attacking police violence against minorities he could have done much more. An admitted pot smoker in college he did not even go to the effort to remove Marijuana from the schedule 1 which everyone knows is not where it belongs.

        reply to this | link to this | view in chronology ]

        • icon
          Leigh Beadon (profile), 20 Nov 2018 @ 10:19am

          Re: Re: Re: We have already been to that dance.

          I'd add #3 - he was elected on promises to run the most transparent administration ever, and instead aggressively prosecuted whistleblowers and fought FOIA requests at every opportunity.

          reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 20 Nov 2018 @ 10:39am

          Re: Re: Re: We have already been to that dance.

          When we finally do leave the country it will be the same as it was before we went there.

          Well let's be fair now. It could be worse.

          reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 20 Nov 2018 @ 11:02am

          Bypassing Congress

          Ever since the DeLayan House during the Bush era, it's been in vogue for our representatives not to vote their consciences to hold the line in blocking the other side.

          Congress has long become a thing to be bypassed rather than a thing one can rationally negotiate with.

          I'd argue the mass coercion involved is an indictment of representative democracy, but optimistically it's only an indictment of our two-party system.

          It'll take massive reform to escape the shit-slinging quagmire that the US Congress has become.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2018 @ 1:26pm

      Re: Both sides are bad so vote Republican!

      Nice double whataboutClintonObama

      reply to this | link to this | view in chronology ]

  • identicon
    Smokey the Bear, 19 Nov 2018 @ 1:22pm

    Only You Can Prevent Forest Fires

    If I were a reporter assigned to the white house, think I would bring along a vacuum cleaner ... you know - so I could vacuum up leaves and prevent a forest fire.

    I wonder, what is the best broom/vacuum cleaner to use in a forest.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 19 Nov 2018 @ 5:30pm

    Trump's "fans" must think they're still watching that TV show he did. It's hard to tell who's dumber--Trump or the ones who voted for him.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2018 @ 6:53pm

    This ain't Star Wars

    ...frankly, the Trump supporters here should learn to think beyond their obsession with defending "dear leader" in everything he does,...

    "You ask the impossible!" Luke objected petulantly.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2018 @ 7:31pm

    The "heckler's veto" and the Constitution

    Something I don't understand is that if I were to interrupt the president from the front row of some event he's speaking at, I'd quickly be strongarmed out of there by police and have no recourse.

    But if I did the exact same thing in the White House, somehow the Constitution would kick in and a whole different set of rules would apply for some reason.

    That's assuming that a random member of the unwashed masses would have much chance of actually getting a White House press pass in the first place, the vast majority of which are awarded to corporate news organizations.

    I'd like to see Jim Acosta take it a step farther, and be much more belligerent, and see just how far his 1st Amendment "heckler's veto" will take him. The sight of him getting dragged out of the room kicking and screaming would be Ratings Gold for CNN, and such a publicity stunt would certainly be a huge boost for Acosta's personal fame and fortune.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2018 @ 7:37pm

      Re: That’s a might fine straw man you have there.

      Careful you’re getting so much straw on the floor, Rumplestiltskins gonna burst in here and try to spin it into gold.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Nov 2018 @ 10:22pm

        People v. the Press-some dissenters are "more equal" than others

        Is it unfair to ask why one class of government protesters (people who work for the corporate media) has far more legal rights than another class of government protesters (ordinary people)?

        And let's dispense with the notion that reporters these days are unbiased journalists. Pretense aside, they are in fact partisan activists on one side or the other (and if it wasn't for Fox News, there would only be one side today)

        We should never forget that it was barely over a decade ago that all of the US corporate media -- without exception -- served as the president's personal cheerleadering squad and self-censored any facts deemed unhelpful to the president's agenda of invading and occupying a sovereign nation under completely false pretenses, which not a single person in the entire media ever dared question despite the mountain of evidence to the contrary.

        Both then and now, the press were and still are arrogant self-serving narcissists who deceptively present themselves as Heaven-sent defenders of Truth, justice and liberty. And when these "presstitutes" turn against the government, their constitutional rights to dissent are infinitely greater, they constantly scream, than the de facto rights of ordinary Americans.

        https://www.democracynow.org/2006/2/1/headlines/cindy_sheehan_arrested_for_wearing_anti_wa r_t_shirt_at_bushs_address

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 19 Nov 2018 @ 9:34pm

      Re: The "heckler's veto" and the Constitution

      "heckler's veto"

      That phrase does not mean what you think it means.

      (for one thing, it requires a bit more than the mere presence of a heckler)

      reply to this | link to this | view in chronology ]

    • identicon
      bob, 19 Nov 2018 @ 9:54pm

      Re: The "heckler's veto" and the Constitution

      The amendments protect you from the government not private entities.

      Venue: White House, government owned and run.

      Venue: stadium or other large building in America, usually privately owned.

      So after being allowed into the White House you can't be told to leave just because the president doesn't like you. The president must have a legal reason for not allowing you to come back. This time he didn't have a legal means to kick out a reporter.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Nov 2018 @ 10:42pm

        Re: Re: The "heckler's veto" and the Constitution

        According to that argument, a person who lives in a rented house has less right to take action against a burglar than a person who owns a house.

        Anyway, the whole "government property vs non-government property" aspect of Constitutional law has been completed corrupted, leading to massive sub-contracting to non-US-government entities as an evasive legal loophole.

        A person's legal rights, and the law in general, should not be so easily breachable due to strategic outsourcing and other artificially structured gimmickry.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Nov 2018 @ 11:10am

          Re: Re: Re: The "heckler's veto" and the Constitution

          Sooo much straw here...it’s like Kansas after a tornado.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Nov 2018 @ 11:11am

          Re: Re: Re: The "heckler's veto" and the Constitution

          Strategic outsourcing like being a branch of the government? Or is violating the first and fifth admendment gimmickry?

          reply to this | link to this | view in chronology ]

          • icon
            Uriel-238 (profile), 20 Nov 2018 @ 2:14pm

            Strategic Outsourcing

            How is it that private institutions given powers of state are not subject to the same standards and regulations that control the behavior of a state agency?

            I've heard this regarding the abuses allowed to private prisons and to private military contractors (which belies the Geneva restriction on mercenaries), but I don't get how this is not an obvious perversion of law.

            reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 20 Nov 2018 @ 7:33am

        Re: Re: The "heckler's veto" and the Constitution

        Venue: White House, government owned and run.

        Venue: stadium or other large building in America, usually privately owned.

        That's actually irrelevant in this case. If the president is speaking at a stadium, then it's a limited-purpose public forum. If he opens the floor to questions from reporters, he can't have a reporter removed for asking him questions.

        That's why Trump isn't allowed to block people on Twitter.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Nov 2018 @ 2:34am

      Re: The "heckler's veto" and the Constitution

      There is a difference between the president giving a speech, and the president holding a press conference, in that one is listen to me, and the other is ask me questions.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Nov 2018 @ 5:44am

        Re: Re: The "heckler's veto" and the Constitution

        If Trump is allowed to cherry-pick his one-on-one sit-down interviewers with his biggest fans such as Sean Hannity, then why don't the courts force him to be interviewed by his biggest foes, who, it would seem, are very clearly having their constitutional rights violated every time Trump refuses their interview requests while granting those of his footlicking sycophants.

        Why doesn't Jim Acosta sue to force Trump to allow him and other critics to at least be in the same room when Trump gives all those friendly-media closed door interviews?

        There is nothing in the US Constitution about press conferences, and if these are to be considered open access public venues instead of private meetings in the eyes of the law, then so should every other type of encounter between a government official and selected members of the public.

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 20 Nov 2018 @ 7:50am

          Re: Re: Re: The "heckler's veto" and the Constitution

          There is nothing in the US Constitution about press conferences

          Fun fact: constitutional law isn't just about a plain reading of the literal text of the Constitution by laypeople. (You'll note that there's nothing in the Constitution about Techdirt, either, and yet the government can't arrest you for saying stupid shit on Techdirt. Unless that stupid shit were to include threats, defamation, or other forms of unprotected speech -- which aren't mentioned in the Constitution either. Neither is the heckler's veto, for that matter.)

          We've got a couple of hundred years of courts deciding what the Constitution means. That includes defining public forums.

          When the President holds a press conference, that's a public forum. He's allowed to decide who is and isn't allowed to participate based on objective criteria -- he can refuse press passes to outlets with small audiences, or reporters who fail to pass a background check, or revoke a reporter's press credentials for showing up in a tank top and blasting an air horn. But he can't refuse press passes based on the content of a reporter's speech.

          and if these are to be considered open access public venues instead of private meetings in the eyes of the law,

          They are. There's no "if".

          then so should every other type of encounter between a government official and selected members of the public.

          A private interview is not analogous to a public press conference. They're not remotely the same thing. Your slippery-slope argument does not pass muster under the relevant legal standards. Public forums are clearly defined in First Amendment case law. A press conference is a public forum; a one-on-one interview is not.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 20 Nov 2018 @ 10:34am

            Re: Re: Re: Re: The "heckler's veto" and the Constitution

            "A press conference is a public forum; a one-on-one interview is not."

            I'd be curious to see what a hybrid situation would be considered, whether a "public forum" or not. Would a "private" interview be legally limited to the president only taking questions from a single [Fox News] interviewer, or could a second person in the room be permitted to ask a question? And then if a second person, then why not a third/fourth/etc - all the way up to the entire Fox News staff? Just as long as no one ever dares call it a (private) press conference of course.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 20 Nov 2018 @ 11:13am

            Re: Re: Re: Re: The "heckler's veto" and the Constitution

            “and yet the government can't arrest you for saying stupid shit on Techdirt”


            which is a damn good thing I’d add...

            reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 20 Nov 2018 @ 7:39am

      Re: The "heckler's veto" and the Constitution

      Something I don't understand is that if I were to interrupt the president from the front row of some event he's speaking at, I'd quickly be strongarmed out of there by police and have no recourse.

      But if I did the exact same thing in the White House, somehow the Constitution would kick in and a whole different set of rules would apply for some reason.

      You're mistaken.

      If the president were giving a speech at the White House and someone were to interrupt him from the front row, he would be allowed to remove that person.

      That's not what happened.

      Jim Acosta did not interrupt a speech. He asked questions during a press conference.

      And Trump did not have him removed. He revoked his press pass after the fact. And he did not offer a coherent justification for why he did so, which resulted in the judge issuing a temporary restraining order on due process grounds.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Jess Passin, 20 Nov 2018 @ 5:48pm

    Runs into separation of branches, too.

    NO judge would allow Jim Acosta's disruptive childish antics in court, so why should the Executive?

    The judge cleverly waffled: he's OKAYED the ban, just need WRITTEN RULES -- which the other press members are now wailing over -- that's what happens when children violate common decency.

    A.F. Branco Cartoon - Freedom of Screech

    https://comicallyincorrect.com/a-f-branco-cartoon-freedom-of-screech/

    Fanfaronade to fan flames flopped, flabby.


    Here's the rules to thank nasty grandstander Accoster for:

    (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,physically 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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Nov 2018 @ 7:35pm

      Re: Runs into separation of branches, too.

      You have no idea what common law means.

      SESTA voted.

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 21 Nov 2018 @ 10:27am

      Re: Runs into separation of branches, too.

      NO judge would allow Jim Acosta's disruptive childish antics in court, so why should the Executive?

      It wouldn't be allowed at a funeral either, but what does that have to do with a White House press conference?

      Here's the rules to thank nasty grandstander Accoster for:

      You misspelled "Trump".

      reply to this | link to this | view in chronology ]


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