At first glance, it seems outlandish that a federal judge would order President Trump to return Jim Acosta’s press pass. Surely, there can’t be a constitutional right to attend White House press conferences, can there? But the judge’s order becomes much more understandable when you dig into it a little.
No opinion, order, or transcript is publicly available at this time [1:18-cv-02610-TJK CABLE NEWS NETWORK, INC. et al v. TRUMP et al, U.S. District Court for the District of Columbia], so we start, as always, with the text of the U.S. Constitution. The First Amendment protects, among other things, freedom of the press. The Fifth Amendment provides that no one shall be deprived of life, liberty, or property without due process of law.
The heart of the matter is that Jim Acosta of CNN, once granted a White House press pass, has a liberty interest in that pass that is protected by due process. He cannot be deprived of his pass without first being afforded due process of law. This is the basis of the judge’s order. Due process, among other things, means notice and an opportunity to be heard. The White House pulled Jim Acosta’s press pass without giving him notice or an opportunity to be heard before the revocation. The judge recited these facts, as well as the fact that the government’s lawyer could not say who actually ordered the revocation, making the process indeterminable.
The judge relied on a 1977 federal appeals court decision involving Robert Sherrill of The Nation magazine. Sherrill was denied access to the White House, the Secret Service said, because he had a couple of assaults in his background – one while on the job. He had punched the Florida Governor’s press secretary while on a campaign train. What a rude, terrible person but, still, the court in that case upheld his First and Fifth Amendment rights. The court concluded “that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees.”
Judge Timothy Kelly, a Trump appointee, said, while he may not agree with the 1977 precedent, he felt duty-bound to follow it in Jim Acosta’s case. A couple of other factors weighed in the judge’s decision. Judge Kelly found that CNN would likely prevail on the merits. He also expressed his skepticism about White House claims that it had pulled the pass due to Acosta’s bad behavior at a recent press conference. CNN argued that the pass was pulled, not because of Acosta’s behavior, but because of his prior reporting that was unfavorable to the President. This raises the possibility that the White House was actually acting against Acosta because of the content of his viewpoint, a big free speech no-no. The judge also rejected the administration’s argument that CNN has plenty of other reporters covering the White House. As the judge put it, "That CNN may send another journalist to the White House does not make the harm to Mr. Acosta any less irreparable."
After the judge’s ruling, the White House indicated it would draw up some rules regarding decorum at White House press briefings. The judge’s ruling was on CNN’s application for a temporary restraining order and the White House has not indicated whether it wants to continue with the litigation. The judge left open the possibility that the White House could still revoke Jim Acosta’s pass if it first affords him due process. The judge also seemed to suggest that President Trump would be within his rights never to call on Jim Acosta again.
For the life of me, I can’t understand why the White House continues to hold press conferences for the hostile fake news media. Why not just send everybody press releases and maybe answer some questions by email? If due process vests because the government creates a forum, then why not do away with the forum?