A federal judge on Friday ruled in favor of CNN and reporter Jim Acosta in a dispute with President Trump, ordering the White House to temporarily restore the press credentials that the Trump administration had taken away from Acosta last week.
In a victory for the cable network and for press access generally, Judge Timothy J. Kelly granted CNN’s motion for a temporary restraining order that will prevent the administration from keeping Acosta off White House grounds.
In essence, the court held that the White House could not take away Acosta’s First Amendment rights without due process; in the case of this White House, there apparently isn’t any process. The judge chided the White House, remarking that there was still no clear answer as to who pulled Acosta’s press pass. Moreover, in an especially pointed rebuke to White House press secretary Sarah Sanders (who regularly misleads reporters), the court found the allegation that Acosta placed his hands on an intern “likely untrue.” (The DOJ lawyers didn’t try to defend that allegation or the doctored video Sanders sent around, so it was especially significant that the court brought it up sua sponte.)
The White House is purportedly drafting guidelines for the press meant to enforce “decorum.” We’ll see if those sustain legal scrutiny. Yet to be litigated is a permanent order or the merits of the First Amendment (“viewpoint discrimination”) claim. The Post was among the media companies that signed onto an amicus brief in support of CNN.
The American Civil Liberties Union responded, “Today’s decision reaffirms that no one, not even the president, is above the law. The White House surely hoped that expelling a reporter would deter forceful questioning, but the court’s ruling will have the opposite effect.”
There are a few interesting aspects to the ruling.
First, the Justice Department had a hard case but did a lousy job of litigating. Jonathan Peters, press freedom correspondent for Columbia Journalism Review, tweeted on Wednesday:
Second, Judge Kelly is a Trump appointee, which should remind us that, once judges get on the bench, they can show remarkable ingratitude to the president who put them there. They don’t want to be reversed on appeal or ridiculed by their peers. They know a future president (and/or Senate) may decline to elevate them to a higher court if they lack legal prowess. Most judges, even ones Trump nominated, try to get it right. Moreover, for all its norm-busting, the White House apparently is not ignoring the ruling nor ridiculing the court. Score one for the rule of law.
Third, the court reaffirmed that while the White House doesn’t have to let reporters in, once it does the First and Fifth amendments do not allow it to arbitrarily (and in this case, under false pretenses) pull credentials. It will be interesting to see what guidelines the White House comes up with. If they are content-neutral, objective rules (e.g., one follow-up question only), they are more likely to withstand scrutiny than if the White House sets up subjective criteria (not deferential enough? out you go!). Remember that there is a separate lawsuit still pending challenging Trump’s conduct in chilling all reporters’ First Amendment rights.
Fourth, even Fox News joined in the amicus brief, although its nighttime hosts continue to berate aggressive reporting by the mainstream media. Let’s hope that, perhaps with some prompting from new conservative legal group Checks and Balances, headed by George T. Conway III, conservatives who fancy themselves defenders of the Constitution start defending it when Trump tramples on it.
Finally, Trump lost. He flat-out lost, albeit on narrow grounds, in his attempt to intimidate reporters. As in the case ordering him to stop blocking critics on Twitter, Trump cannot do whatever he pleases. As Victoria Baranetsky put it, given that “the President openly espouses enmity against reporters, it is more important than ever to articulate constitutional safeguards for the fourth estate.” Each time the courts check the executive, democracy regains ground from a lawless president.