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.

Filed Under: 1st amendment, brian karem, free speech, jim acosta, press pass, stephanie grisham, ted boutrous


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  1. icon
    That One Guy (profile), 20 Aug 2019 @ 8:12pm

    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.


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