from the well-duh dept
Just a few weeks ago, we wrote about how the White House was clearly setting itself up for another embarrassing failure in court when it removed the press pass of Brian Karem. This wasn’t new. The same thing had happened a year ago. And yet, our comments filled up with a lot of nonsense about how we were wrong and “there is no right to a White House press pass” and a bunch of other nonsense.
I’ll be curious to hear the response from those same individuals now that a federal judge has ordered the press pass restored.
As the Court will explain below, Karem has, at this early stage of the proceedings, shown that he is likely to succeed on this due process claim, because the present record indicates that Grisham failed to provide fair notice of the fact that a hard pass could be suspended under these circumstances. Meanwhile, Karem has shown that even the temporary suspension of his pass inflicts irreparable harm on his First Amendment rights. The Court therefore grants Karem?s motion for a preliminary injunction and orders that his hard pass be restored while this lawsuit is ongoing.
The court focuses mainly on the 5th Amendment due process claims, noting that those alone suffice to show that Karem is correct here. The judge goes into great detail about how the White House never did anything to suggest special decorum rules for these events, and thus the decision to ban Karem was arbitrary. The White House brought up all sorts of bizarre explanations insisting that it had provided adequate notice to Karem, but the judge points out that’s just not true.
First, the letter?s language, taken in its entirety, is ambiguous as to whether the White House even intended to regulate events other than formal press conferences. Indeed, by expressly limiting the scope of the promulgated rules?including the warning about the ?suspension or revocation of . . . hard pass[es]??to formal press conferences, the White House arguably suggested that it was not going to police reporter behavior at other events, unless ?unprofessional behavior occur[red]? and it was ?forced to reconsider [its] decision? by publishing explicit rules.
Also, whatever “rules” there might have been were way too vague:
The letter refers only to ?professional journalistic norms, ? Acosta Letter at 2, which is just as amorphous as the ?reasons for security? language that the D.C. Circuit found insufficient in Sherrill, 569 F.2d at 130. Though ?professionalism? has a well-known common meaning, it is inherently subjective and context-dependent. Such abstract concepts may at times indicate what is allowed and disallowed at the furthest margins, but they do not clearly define what is forbidden or permitted in common practice within those margins. The vagueness doctrine guards against this danger by ensuring that regulated parties are able to discern, as a practical matter, ?what is required of them so they may act accordingly.? Fox, 567 U.S. at 253.
The judge also notes that Karem’s lawyers presented plenty of evidence of obviously much worse behavior that did not lead to press pass revocation:
Defendants appear to argue that, even if the meaning of ?professionalism? may be debatable in certain instances, Karem?s behavior was clearly unprofessional in this instance. This contention appears to be grounded in the notion that ?a plaintiff who ?engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.??… Again, though, ?professionalism? is context-dependent, and Karem has provided some evidence that White House press events are often freewheeling and that aggressive conduct has long been tolerated without punishment. That evidence includes a characterization of the White House press corps as ?an unruly mob of reporters.? Ex. C at 5. It includes stories of how journalists have ?rudely interrupted? presidents and ?berated? press secretaries, Ex. D at 1; have ?breach[ed] etiquette? by ?heckling? during presidential remarks, Ex. I at 1; and have shouted questions at the conclusion of Rose Garden events, drawing the ire of honored guests in attendance, see Ex. E at 2; Ex. C at 4. The evidence even includes an account of how two reporters once ?engaged in a shoving match over positions in the briefing room.? Ex. C at 5. This kind of behavior may have occasionally led the White House to speak with reporters? employers… but it apparently never resulted in the revocation or suspension of a hard pass…. And, as noted above, the Acosta Letter does not unambiguously signal a departure from that regime. In fact, the letter could reasonably be read to mean that the pre-existing regime would be maintained for the time being.
Defendants, meanwhile, have submitted no evidence in support of their contention that Karem?s conduct was clearly proscribed under the existing ?professionalism? policy. They instead rest entirely on Grisham?s August 16 letter and its conclusions that ?Karem?s actions, as viewed by a reasonable observer, (1) insulted invited guests of the White House, (2) threatened to escalate a verbal altercation into a physical one to the point that the Secret Service deemed it prudent to intervene, and (3) re-engaged with . . . Gorka in what quickly became a confrontational manner while repeatedly disobeying a White House staffer?s instruction to leave.? Ex. 10 at 8. But in light of the evidence that Karem has presented the first and third conclusions do not seem clearly sanctionable in the context of the White House press corps. And the second conclusion is not supported by the various video recordings of the July 11 incident. No doubt, Karem?s remark that he and Gorka could ?go outside and have a long conversation,? id. at 3, was an allusion to a physical altercation, but the videos make clear that it was meant as an irreverent, caustic joke and not as a true threat. And the videos belie the notion that a Secret Service agent had to intervene to prevent a fight: the agent walks right past Karem as the exchange with Gorka is concluding (before returning upon hearing someone call Karem a ?punk ass?). See Ex. 63 at 0:30?0:36; Ex. 61 at 0:23?0:27. Rather, Karem and Gorka each had ample opportunity to initiate a physical altercation, and they each made the decision not to.4 Plus, Karem?s interaction with Gorka in the Rose Garden was brief?about twenty seconds, see Ex. 63 at 0:09?0:31?and it came after the President?s remarks had concluded. This event was also one where jocular insults had been flying from all directions…. There is no indication in the record that other offenders were reprimanded, or even told to stop.
The court notes that it need not really get into the 1st Amendment arguments, given the 5th Amendment points raised above, other than to order the immediate return of the press pass, because taking it away creates irreparable harm to Karem’s 1st Amendment rights.
It is not merely an abstract, theoretical injury, either. As Sherrill recognized, ?where the White House has voluntarily decided to establish press facilities? that are ?open to all bona fide Washington-based journalists,? the First Amendment requires ?that individual newsmen not be arbitrarily excluded from sources of information.? … Such exclusion is precisely what Karem is suffering here. His First Amendment interest depends on his ability to freely pursue ?journalistically productive conversations? with White House officials…. Yet without his hard pass, he lacks the access to pursue those conversations?even as an eavesdropper. And given that the news is time-sensitive and occurs spontaneously, that lack of access cannot be remedied retrospectively.
The case is not over, but for the time being the White House needs to restore Karem’s pass. And I’ll be eagerly waiting to see what those who insisted this case would go the other way have to say in our comments.