CNN won a temporary victory over the White House when a judge ordered Jim Acosta’s hard pass had to be returned to him, but the key word here seems to be temporary. After having some time to look over the decision, the White House declared first that if Acosta continued his showboating antics, they would kick him out again. And now they’ve followed that threat up with indications that they might just drop his access at the end of the month anyway. This has some heads exploding at CNN and they’ve filed a request for an “emergency hearing” on the matter.
The White House has issued a new warning to CNN’s Jim Acosta, saying his press pass could be revoked again at the end of the month.
In response, CNN is asking the U.S. District Court for another emergency hearing.
“The White House is continuing to violate the First and 5th Amendments of the Constitution,” the network said in a statement Sunday. “These actions threaten all journalists and news organizations. Jim Acosta and CNN will continue to report the news about the White House and the President.”
Last Friday CNN won a temporary restraining order, forcing the White House to restore Acosta’s press access to the White House for 14 days. Judge Timothy J. Kelly ruled on Fifth Amendment grounds, saying Acosta’s right to due process had been violated. He did not rule on CNN’s argument about First Amendment violations.
The major snag CNN should rightfully be facing here is not what the judge initially ruled on, but what he didn’t rule on. The decision, which seems clearly flawed to begin with (which I’ll get to in a moment), appears to hinge on the fact that there is no established process in place for the approval, denial or revocation of press passes. But as Professor Jacobson at Legal Insurrection points out, that’s a situation which can be quickly remedied and the rest of Acosta’s colleagues may wind up paying the price for this scuffle.
As even the NY Times acknowledges, under the TRO Ruling the White House can design policies and procedures to regulate the conduct and discipline of reporters granted access to the White House:
The ruling was a significant victory for CNN and Mr. Acosta, but Judge Kelly declined to say whether the denial of the White House press pass had amounted to a First Amendment issue.
“I want to emphasize the very limited nature of this ruling,” he said, saying that it was not meant to enshrine journalists’ right to access. “I have not determined that the First Amendment was violated here.”…
“This could backfire,” said William L. Youmans, a professor of media law at George Washington University. Mr. Acosta “gets his credential now, but it empowers the Trump administration to come up with conduct-based criteria.”
We’re still stuck in the procedural technicalities of this question, rather than dealing with the larger arguments involving the First, Fifth and Fourteenth Amendments. The judge basically said that Acosta’s pass shouldn’t have been taken away because of violations of rules which don’t exist so he would have no way of knowing that his credentials were in danger. If we are to assume that Acosta or any other reporter has some God-given, constitutional right to a hard pass (which I don’t), then that argument is at least understandable. But what Jacobson points out is that the judge has now opened the door for the White House to set up just such a set of rules and enforce them as they see fit. And that appears to be precisely what they are doing.
I’d still like to see this case be appealed and taken up the judicial chain, however. This is an argument I’ve had repeatedly with Doug Mataconis who has written on this subject over at Outside the Beltway. He notes that the judge cites a 1977 case involving a reporter who had their press credentials denied, and that certainly seems to apply here. But the basis for the decision (which wasn’t appealed) seems laughable. The courts have expanded the definition of “due process” as found in the Fifth and Fourteenth Amendments to ludicrous proportions. We’re not talking about Jim Acosta being arrested, detained, jailed or put on trial without benefit of legal counsel here. We’re talking about a press pass. I’ve gone back and checked the founding documents again just to be sure, and nowhere among the many wonderful rights of American citizens enshrined there is any mention of press passes.
Even the First Amendment argument doesn’t hold water, and the judge was careful to say that he wasn’t ruling on those grounds. The freedom of the press is not being infringed here. Jim Acosta’s freedom to enter the building and rant wildly in the middle of White House press briefings which aren’t even mandatory to begin with is being infringed. And that’s not something he has any special right to in the first place. There are plenty of other reports ready and eager to take his place and fully capable of reporting on whatever happens to take place.
There may have been a lack of formal rules and procedures for reporters to obtain press passes, but now it seems that will end. Rules will be put in place and I’m guessing that the press pool isn’t going to care very much for them. But it’s the old story of being careful what you wish for. You just might get it.