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Opinion Trump’s Orwellian argument for violating CNN’s First Amendment rights

Media critic Erik Wemple breaks down CNN's lawsuit against President Trump and others, and the White House's response to it. (Video: Gillian Brockell/The Washington Post)

“What President Trump is trying to do to CNN is straight out of [Hungarian Prime Minister Viktor] Orban’s playbook,” Ian Bassin, executive director of Protect Democracy, said in response to the Trump administration’s arguments in federal court on Wednesday.

The administration’s lawyers no longer claimed that CNN journalist Jim Acosta placed his hands on an intern, a pernicious untruth spread by press secretary Sarah Sanders via a doctored video. Instead, the lawyers offered a hodgepodge of authoritarian excuses: The media had to be respectful. Acosta was being disruptive. At times, the government’s lawyer sounded Orwellian:

“I don’t think anyone would dispute, if [Trump] wants to exclude all reporters from the White House grounds, he clearly has the authority to do that,” [Justice Department attorney James] Burnham argued at one point during the 110-minute hearing. “There’s no First Amendment right … for journalists to be there.”
He also argued that CNN’s and Acosta’s First Amendment rights weren’t injured by the decision to exclude Acosta — as CNN contends — because the network has dozens of other journalists with White House passes who could report in his place. He also said Acosta was free to keep reporting on Trump by watching television coverage of him outside the White House gates.

Watching TV is the same as reporting, you see. CNN’s rights can be trampled upon because its competitors are in the room. Huh?!

CNN’s lawyer and constitutional law guru Ted Boutrous blasted that reasoning. Having let reporters in, Trump could not exclude one whose reporting he didn’t like. (“The government’s now taking the position that [the president] can do anything he wants.”)

Burnham tried arguing that CNN wasn’t really harmed, or maybe this was all for the benefit of reporters Trump didn’t find so disruptive. Boutrous slammed the notion that being “disruptive” was reason to deny Acosta his pass. Nearly all despots claim that criticism is “disruptive.” Another argument, namely that Acosta wasn’t voicing a viewpoint at all, is belied by Trump’s constant invective against CNN for the substance and tone of its coverage; clearly, it’s CNN’s journalism that Trump hates. He did call the network the “enemy of the people,” as I recall.

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As counsel in a case brought on behalf of PEN America challenging Trump’s use of executive power to chill all journalists, Bassin explained: “The Administration’s continued attempts to block the merger between CNN’s parent company Time Warner and AT&T in retaliation for coverage the president doesn’t like is arguably even more pernicious. But the difference between here and Hungary is that here we have a First Amendment and independent courts to enforce it.”

The judge promised a ruling on Thursday. Bassin tells me, “I suspect President Trump is going to be reminded of that [Thursday] in the CNN case, and then later in PEN America’s related case to stop this kind of retaliation — not just against Jim Acosta, but against any reporter.”

Trump has already been slapped down by the judiciary once for banishing critics. In a ruling concerning Trump’s ability to block critics on Twitter, a federal court held: “The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.” While Trump has his own First Amendment rights, the court held that he cannot trample on others’ rights by blocking them. In the same way, Trump has no obligation to speak to or call on Acosta, but he can no more exclude him from news conferences than he can block “disruptive” voices on Twitter.

As reprehensible as the president’s anti-free-speech arguments might be, the silence of “constitutional conservatives” in Congress and at the Federalist Society is even more troubling. When it’s their political opponents whose rights are at issue, they have been mum, except for a subgroup of Federalist Society conservatives — those with principles — dubbed Checks and Balances. Perhaps the sight of the president’s lawyers arguing that the president can deny access to reporters he finds insufficiently deferential will serve as a wake-up call to other conservatives who have been silent, either out of desire for one of those federal court appointments or out of fear of the president’s wrath. It’s a pity that the average Federalist Society member seems to resemble that “summer soldier” and “sunshine patriot” whom Thomas Paine excoriated.

While the Federalist Society and self-appointed constitutional experts in Congress are AWOL, the free press will defend First Amendment rights that we all enjoy. It’s up to the federal court judge to restrain a president who increasingly thinks of himself as an absolute ruler who can govern by whim rather than as a servant of the people who has taken an oath to protect their rights.