Ted Olson on Acosta lawsuit: This is an important First Amendment case

He’s not just a talking head here, he’s CNN’s attorney in the matter.

Believe it or not, and I’m in the “not” camp, there’s a real chance CNN will win. Under existing case law and regulations, there may be a right under the First Amendment to mug for the camera at the daily White House press briefing.

Eleven years later, a D.C. Court of Appeals judge ruled that the Secret Service had to establish “narrow and specific” standards for judging applicants. In practice, the key question is whether the applicant would pose a threat to the president.

The code of federal regulations states that “in granting or denying a request for a security clearance made in response to an application for a White House press pass, officials of the Secret Service will be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or the family of the President so serious as to justify his or her exclusion from White House press privileges.”

There are other guidelines as well. Floyd Abrams, one of the country’s most respected First Amendment lawyers, said case law specifies that before a press pass is denied, “you have to have notice, you have to have a chance to respond, and you have to have a written opinion by the White House as to what it’s doing and why, so the courts can examine it.”

“While the suit is specific to CNN and Acosta, this could have happened to anyone,” CNN claimed this morning in its statement about the suit. Not really. The fact that Acosta doesn’t behave like anyone else at press conferences isn’t lost on the audience, including his own colleagues in the industry. If Acosta had had his “hard pass” stripped simply because Trump didn’t like the tone of his questions, then it “could have happened to anyone.” The reason it happened to him is because he’s disruptive and unprofessional, talking over reporters and insisting on having his say when dozens of others are waiting their turn. Probably 90 percent of the people in the room on any given day are anti-Trump and Trump knows it; he’s even singled out some, like April Ryan, for their overt opposition to him. Yet only one person has been sanctioned by losing his hard pass. How come?

There are two reasons why even Trump skeptics like me and Patterico are having trouble with the suit. One, as noted, is that grounds exist for excluding Acosta irrespective of his viewpoint, and viewpoint is what the First Amendment is usually concerned with. We don’t want to let the government punish people for their viewpoints even if the “punishment” is as meager as revoking access to which the reporter never had a right to begin with, otherwise the proverbial slope might get slippery. But practically everyone in the press corps shares Acosta’s viewpoint about Trump. Dozens of people at the same anti-Trump news outfit he works for continue to enjoy their “hard passes.” He was singled out because he’s disruptive. Why shouldn’t someone be penalized by losing a privilege for repeatedly refusing to observe the same rules of order and collegiality that everyone else does? CNN winning would mean there’s a First Amendment right to commandeer a presidential press conference for your own douchey grandstanding needs.

And, intentionally or not, it would hold up Acosta as the archetype of how reporters should behave. That’s the other thing that irks me. CNN would deny that it’s doing that but the conclusion is inescapable given how the network has handled him. They could have rotated Acosta off the White House beat voluntarily ages ago. They kept him in the role because they enjoy the Acosta Show and now, rather than hand Trump a win by replacing him very belatedly, they’re going to try to turn him into a cause celebre by filing a big First Amendment lawsuit replete with super-lawyer Ted Olson’s participation. It’s the ultimate illustration of Jon Stewart’s point about the media getting sucked into personal battles with Trump. Instead of showing some introspection about how Acosta was mishandling a serious job and sending a less vain, more issue-minded reporter to do it, CNN left him out there until he ended up in a pointless yet completely foreseeable confrontation with the president. When Trump overreacted, they had their peg to take him to court. The entire Acosta saga has been a tale of journalism as Resistance showboating instead of journalism, and never more so than now.

I’m eager to see how the courts handle it, though. The leading precedent on this issue, which Patterico details, strikes me as absurd in finding that the government can’t revoke a press pass absent a “compelling” state interest. The government shouldn’t need a “compelling” interest to justify canceling an access privilege to which a reporter has no right, though, certainly not where the cancellation isn’t based on viewpoint. A rational interest would be better. Does the White House have a “compelling” interest in barring a disruptive reporter from the briefing? No, not really. Does it have a rational interest in wanting the briefings to run efficiently? Sure. We’ll see what the Supremes say.

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