A lame argument has been making the rounds in Washington over the past week or so. It emerged after the White House yanked the press credentials of Jim Acosta following that contentious Nov. 7 post-midterms press conference at the White House. The most powerful people in the world expressed contempt for Acosta’s behavior on that occasion and justified the access block on that front.
Plus! In a statement justifying the action, White House press secretary Sarah Sanders wrote, in part, “CNN, who has nearly 50 additional hard pass holders, and Mr. Acosta is no more or less special than any other media outlet or reporter with respect to the First Amendment.”
In the intervening days, that very sentiment — that a news organization’s chief White House correspondent was, in effect, a meaningless position — has been plastered all over social media, not to mention a court filing from government lawyers opposing CNN’s request for a temporary restraining order (TRO) restoring Acosta’s hard pass. “Mr. Acosta remains able to practice his profession and report on the White House. And CNN’s straits are even less dire, given that the network has roughly 50 other employees who retain hard passes and who are more than capable of covering the White House complex on CNN’s behalf,” argued Justice Department lawyers in the case.
Well, so much for all that.
In a Friday morning court session, Judge Timothy Kelly of the U.S. District Court for the District of Columbia lent his thinking to the matter, which resulted in the granting of CNN’s request for the TRO — meaning that Acosta’s press pass will be reinstated, though just “temporarily,” according to a statement from Sanders. In his discussion of the TRO request, Kelly considered the likelihood that CNN would prevail in its arguments that the hard-pass revocation violated due-process considerations. Likely, Kelly ruled. Wednesday’s oral arguments and the judge’s explanation centered on the 1977 case Sherrill v. Knight, in which a “court found that denial of White House credentials was a sufficiently grave infringement on the freedom of the press that it couldn’t just be done by fiat.” In his own summation, Kelly said that Sherrill stands for the proposition that the “Fifth Amendment’s due process clause protects a reporter’s First Amendment liberty interest in a White House press pass.”
Seeing comments that CNN ruling had nothing to do with 1st Amend - all about 5th. Not quite right. Sherrill v Knight's holding was that procedural requirements of notice, opp to respond, etc, were compelled by the finding that interests in credentials were protected by 1st Amend.— Jonathan Peters (@jonathanwpeters) November 16, 2018
As Kelly plowed through the particulars, he also considered whether the revocation constituted “irreparable harm.” In this context, he addressed the idea that other reporters could well do what Acosta does:
Here, the procedures and process violation at issue, that has led to the deprivation of what [Sherrill v. Knight] requires me to recognize as a liberty interest … that’s grounded in the First Amendment guarantee of freedom of the press. Moreover, the First Amendment interests as recognized in Sherrill were not vested merely in publications or agencies; they were liberties of the individual journalists themselves. For that reason, that CNN may still send another journalist or other journalists to the White House does not make the harm to Mr. Acosta any less irreparable. … It’s a harm that cannot be remedied in retrospect. … So on this highly, highly unusual set of facts and interests at stake, I do find that the plaintiffs have met their burden of establishing that irreparable harm has and will continue to occur in the absence of [remedy].
Bolding included to highlight an understatement that drives at the whole point here: What’s highly unusual is that the White House revoked the access of a journalist over charges of … what, exactly? Kelly’s recognition of the individual right to pursue journalism is a helpful step, even if the age of the Internet — when people without flashy access badges commit acts of journalism all the time — reminds us daily of this point.
Also refreshing was this rebuke of the manner in which the White House proceeded in revoking the press pass of a White House correspondent:
Here's what Trump-appointed Judge Kelly said about gov't case: "Whatever process occurred within the government is still so shrouded in mystery that the government could not tell me at oral argument who made the initial decision to revoke Mr. Acosta's press pass."— ErikWemple (@ErikWemple) November 16, 2018
As he finished his presentation, Kelly emphasized what he hadn’t decided — namely, whether there was a content-based First Amendment issue at hand: “I have not determined that the First Amendment was violated here. I have not determined what legal standard would apply to the First Amendment claim here.” A statement from Sanders seized on this omission: “Today, the court made clear that there is no absolute First Amendment right to access the White House. In response to the court, we will temporarily reinstate the reporter’s hard pass. We will also further develop rules and processes to ensure fair and orderly press conferences in the future. There must be decorum at the White House.”
Even so, Acosta will be haunting the White House grounds very shortly. How long till President Trump tweets something nasty about Kelly, a judge he himself appointed last year?