DOJ answers in Acosta court case: He lost his pass because he was disruptive, not because of his viewpoint; Update: Decision on TRO tomorrow

I wonder if it bothers CNN that this description of Acosta by Trump, a guy whom they normally treat as borderline mentally defective, is apt and will be seen as such by anyone who’s watched Acosta at a press briefing.

When asked specifically whether he expected his White House to prevail in the lawsuit brought by CNN, he told TheDC, “I don’t know, we should … We’ll see how the court rules. Is it freedom of the press when somebody comes in and starts screaming questions and won’t sit down.”…

The president continued, “I really think that when you have guys like Acosta, I think they’re bad for the country … He’s just an average guy who’s a grandstander who’s got the guts to stand up and shout.”

Pretty much. And his point about freedom of the press is echoed in the DOJ’s response to CNN’s complaint, which you’ll find here and which I recommend reading. (If you can’t spare 20 minutes for all of it, spare five for the introduction, which summarizes the entire argument.) To reframe it: How can stopping a guy from trying to monopolize the floor at a press briefing which he had no legal right to attend in the first place be a violation of the First Amendment? Disruption, not viewpoint, is the grounds for revoking his press pass. That’s a point I emphasized myself yesterday and it’s a point emphasized in today’s filing by the DOJ.

The Sherrill case mentioned in the excerpt is the leading precedent on the White House revoking a reporter’s pass. Even in that case the D.C. Circuit acknowledged the truth of the argument made by the DOJ. No, the president doesn’t have to grant interviews. Yes, of course he retains discretion over which journalists he speaks to. It’s absurd to imagine the courts, under the rubric of the First Amendment, micromanaging his daily communications by requiring him to sit down with certain media people.

But, said the court in Sherrill, “where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom” then the First Amendment prevents denying access to those facilities “arbitrarily or for less than compelling reasons.” I don’t follow that logic, which seems to treat the briefing room and other press facilities at the White House as some sort of specialized public accommodation for journalists to which access can’t be denied once it’s offered absent a good reason. Even if you accept the court’s argument, though, there is a good reason to deny that access in this case, argues the DOJ. Acosta’s disruptive! If all agree that Trump can refuse to do interviews with him or call on him at press conferences, then why can’t he also exclude him from the White House grounds? It’s because he’s disruptive and willing to intrude on his colleagues’ questions that he might try to speak up at a presser even if not called upon. The only way to prevent that is to kick him out.

This passage is pithy and effective:

For all the high-minded blather about First Amendment rights here, the specific right that’s at issue is merely Acosta’s right to attend the briefing. He has no right to speak there and no right to have his questions answered, by universal consensus. If he could resist the impulse to interrupt and grandstand and just sit there quietly, there’d be no issue. But he can’t, apparently. So what’s to be done?

One important footnote. The claim that Acosta is being banned for being disruptive, not for being anti-Trump, is one that can be proved or disproved by evidence. If emails exist in the West Wing to the effect that “POTUS tells me he’s tired of having critics like Acosta at his press conferences,” CNN’s First Amendment claim would be much stronger. Courts won’t want to bless actions taken by the president to punish people with disagreeable viewpoints, no matter how minor the punishment or how much discretion he has not to speak to a particular report. Is there any evidence that this dispute is, in fact, about Acosta’s viewpoint, not his penchant for disruption? Well, remember that when Trump was asked a few days ago whether other reporters might lose their passes too, he didn’t rule it out. Why not? No one in the briefing room is disruptive the way Acosta is. If this is all about keeping things orderly during Q&As, why would Trump be mulling additional revocations? That’s the sort of admission that might get him in trouble.

Update: A hearing was held this afternoon. Round one will be finished tomorrow.

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