from the but-what-about-the-flip-side? dept
As you’ve probably heard by now, last week there was a bit of a scuff up in which the President in his standard manner got irritable and annoyed when CNN’s Jim Acosta kept asking questions the President didn’t feel like answering. This has resulted in a bunch of nonsense involving everyone trying to justify their own side’s talking points — but the simple fact of the matter is that it’s a journalist’s job to ask tough questions of politicians. There was a made up controversy involving claims that Acosta “assaulted” an intern who sought to take away his microphone, and the White House supported it with video evidence that some have claimed was doctored, while others have noted just happened (coincidentally) to have been re-encoded in a way that made Acosta’s hand motions look more menacing than they really were. 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).
On Tuesday, CNN announced that it had filed a lawsuit against the White House over the removal of the press pass, arguing that it violated both 1st Amendment and 5th Amendment rights. CNN and Acosta are represented by Ted Boutrous and Ted Olson (along with some other Gibson, Dunn lawyers) which is some serious firepower as they’re two of the most high profile lawyers out there. Olson, a former Solicitor General during the George W. Bush administration, was rumored earlier this year to be considering joining Trump’s legal team, before declining. And now he’s suing Trump’s White House.
The filing is only 18 pages and makes for fairly quick reading. The 1st Amendment claims are basically this:
Defendants initially claimed that they revoked Acosta?s press pass because he ?plac[ed] his hands? on an intern. That contention is not accurate. The President himself has stated that the Acosta?s conduct was not ?overly horrible? and that Acosta?s credentials were actually suspended because he failed to ?treat the White House with respect.?
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.
The 5th Amendment claims are basically a “due process” claim:
Plaintiffs have protected liberty and property interests in Acosta?s press credentials and the access it affords to the White House. The credentials allow Acosta access to his office in the White House and allow him to do his job effectively. Absent his credentials, he cannot serve as a White House correspondent.
Acosta received no direct notice from the White House that his credentials had been revoked, let alone any notice prior to the revocation. Instead, the White House announced the revocation itself via Twitter after Defendants already decided to effectively ban Acosta from the White House grounds.
Defendants did not provide Plaintiffs a written explanation, nor any explanation at all, before revoking Acosta?s press credentials. The only written explanation was a short statement posted on Twitter that Acosta was suspended because he ?plac[ed] his hands? on a White House staffer. Even if this tweet were accurate?and it is not, as the reportedly doctored video Defendant Sanders posted would later show?it would not suffice to demonstrate prior notice of the revocation.
Defendants did not provide Plaintiffs an opportunity to be heard before revoking Acosta?s press credentials. Nor have they provided him any avenue to challenge or appeal the revocation of his credentials. Rather, Defendants have stated that they do not plan to ever rescind the revocation of Acosta?s credentials.
There are good reasons to think that CNN/Acosta may have a decent chance of prevailing. The key case, as many are pointing out, is the DC Circuit’s ruling in Sherrill v. Knight, which more or less says that if the government opens up a briefing to the press, it can’t arbitrarily deny a member of the press entrance. That ruling makes it clear that the President doesn’t need to grant interviews to anyone who comes asking, but he can’t arbitrarily bar a member of the press from an open press briefing. And the court also includes a due process requirement.
On the 1st Amendment claim in that case, the court noted that the White House needs to have a compelling interest in keeping a reporter out, and the details of the standards used by the White House need to be clear:
Given these important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists, such refusal must be based on a compelling governmental interest. Clearly, protection of the President is a compelling, “even an overwhelming,” interest, Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), and we have no basis for rejecting the explicit finding of the District Court that the record in this case demonstrates that denial of a press pass to appellee proceeded solely from concern for “the physical security of the President.” 416 F.Supp. at 1036 n.10. However, this standard for denial of a press pass has never been formally articulated or published. Merely informing individual rejected applicants that rejection was for “reasons of security” does not inform the public or other potential applicants of the basis for exclusion of journalists from White House press facilities. Moreover, we think that the phrase “reasons of security” is unnecessarily vague and subject to ambiguous interpretation.
Therefore, we are of the opinion that appellants must publish or otherwise make publicly known the actual standard employed in determining whether an otherwise eligible journalist will obtain a White House press pass. We do agree with appellants that the governmental interest here does not lend itself to detailed articulation of narrow and specific standards or precise identification of all the factors which may be taken into account in applying this standard. It is enough that the Secret Service be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or his immediate family so serious as to justify his exclusion. See A Quaker Action Group v. Morton, 170 U.S.App.D.C. 124, 516 F.2d 717 (1975). This standard is sufficiently circumspect so as to allow the Secret Service, exercising expert judgment which frequently must be subjective in nature, considerable leeway in denying press passes for security reasons. At the same time, the standard does specify in a meaningful way the basis upon which persons will be deemed security risks, and therefore will allow meaningful judicial review of decisions to deny press passes. We anticipate that reviewing courts will be appropriately deferential to the Secret Service’s determination of what justifies the inference that an individual constitutes a potential risk to the physical security of the President or his family.
And it also notes a 5th Amendment issue:
In our view, the procedural requirements of notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial are compelled by the foregoing determination that the interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the first amendment. This first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment. The only further determination which this court must make is “what process is due,” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). We think that notice to the unsuccessful applicant of the factual bases for denial with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is indeed in furtherance of Presidential protection, rather than based on arbitrary or less than compelling reasons. See Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). The requirement of a final statement of denial and the reasons therefor is necessary in order to assure that the agency has neither taken additional, undisclosed information into account, nor responded irrationally to matters put forward by way of rebuttal or explanation.
That ruling is likely to make this a tough case for the Trump White House. For what it’s worth, many are highlighting that the case in the district court has been assigned to Judge Timothy Kelly, who is a Trump appointee, though I wouldn’t read very much into that. Kelly has already ordered the White House to file a response this morning, and there will be a hearing held this afternoon, so things are moving quickly.
I’ve seen some people, perhaps reasonably, arguing that CNN filing this lawsuit is a distraction — and one that plays into Trump’s claims that the press is out to get him. I’m not sure I buy that, as Trump’s supporters already believe that, and this isn’t likely to change anyone’s mind. But more clearly establishing rules for the press to be declined press passes is an interesting question. Of course, it’s also one where I wonder if many of the people cheering this on would be freaking out if things were in reverse. Imagine a Democratic President denying a press pass to Infowars and/or Breitbart — and imagine how a CNN victory in this case might be used in such a scenario.
Frankly, I think the issue here should be rather straightforward: if the government is holding a press conference, it should have clearly defined content-neutral rules for who qualifies for a press pass. If the press pass is in any way contingent upon the type of coverage, that would be unconstitutional. But other rules that are more objective and apply across the board seem perfectly reasonable. Over the years we’ve had many stories on journalists from more alternative outlets being denied press passes for dubious reasons, and on the whole I think governments should be much more inclusive of media. But, at the very least, if the decisions are based on the content of their reporting, it would appear to be entirely unconstitutional. And here it is abundantly obvious that Acosta was removed for reasons related to his content, with the claims about contact with the intern being purely pretextual.