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Opinion Federal judge to White House: Restore Brian Karem’s press pass

Conservative radio host Sebastian Gorka, right, argues with Brian Karem, a correspondent for Playboy, in the Rose Garden at the White House on July 11. (Jabin Botsford/The Washington Post)

On his CNN show “Reliable Sources,” media maven Brian Stelter on Sunday scolded Playboy White House correspondent Brian Karem for his raucous conduct on July 11 in the Rose Garden. “Why in the world was it appropriate for you — what were you doing trying to confront, trying to provoke Sebastian Gorka and others? To me, this was clearly unprofessional conduct at the White House,” said Stelter, in a display of admirable intra-industry accountability.

Luckily for Karem, a federal judge didn’t quite share Stelter’s evaluation of that now-famous encounter, which was caught on video from various angles. “The Court cannot conclude that Karem’s behavior was clearly proscribed by [a standard in a previous White House document], or even by any widely understood standard of ‘professionalism’ or ‘decorum’ within the context of such an unruly event,” wrote U.S. District Judge Rudolph Contreras. Contreras granted a motion by Karem for the restoration of his White House hard pass, which on Aug. 16 was suspended for 30 days by White House Press Secretary Stephanie Grisham, on the grounds that Karem’s behavior during the July 11 event was disruptive.

A commentary on the kind of event that unfolds under the leadership of President Trump sneaks into the opinion: “This event was also one where jocular insults had been flying from all directions. There is no indication in the record that other offenders were reprimanded, or even told to stop,” wrote Contreras, crediting an argument made by Karem’s lawyers.

Based in part on that rationale, Contreras granted Karem’s motion. After Trump finished remarks concerning the 2020 Census on July 11, Karem asked whether he’d take questions. He said no, prompting some ribbing from the assembled pro-Trump Internet personalities. Things got more boisterous from there. You can find more details on the goings-on here.

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The Karem case bears some similarities to last year’s great press-access squabble, which arose in November after the White House revoked the hard pass of CNN chief White House correspondent Jim Acosta. The reasons were flimsy, and Acosta’s lawyers — led by Ted Boutrous of the law firm Gibson, Dunn & Crutcher LLP — argued that they violated the holdings of the decades-old access case Sherrill v. Knight, which concluded that reporters have such a compelling First Amendment interest in hard passes that any move to upend them requires due process. In the Acosta case, District Judge Timothy J. Kelly ruled that Acosta would likely prevail on the due-process front, and ordered restoration of the pass.

So the Karem decision marks the second judicial dis for the White House’s credential-denial fantasies in the last 10 months.

The Contreras order shows that the White House isn’t sufficiently organized and savvy to effectively silence journalists. He cites a letter that the White House issued after the Acosta case, one that laid out a set of rules binding on reporters in future news conferences and briefings. However, the judge pointedly shrank from outlining standards and guidelines for reporters outside of these official settings:

We are mindful that a more elaborate and comprehensive set of rules might need to be devised, including, for example, for journalist conduct in the open (non-press room) areas inside and outside the White House and for Air Force One. At this time however, we have decided not to frame such rules in the hope that professional journalistic norms will suffice to regulate conduct in those places. If unprofessional behavior occurs in those settings, or if a court should decide that explicit rules are required to regulate conduct even there, we will be forced to reconsider this decision.
The White House’s interaction with the press is, and generally should be, subject to a natural give-and-take. . . . It would be a great loss for all if, instead of relying on the professionalism of White House journalists, we were compelled to devise a lengthy and detailed code of conduct for White House events.

The Karem-Gorka confrontation took place after a White House event, and Contreras ruled that the letter cited above didn’t properly place White House correspondents on notice about what conduct would be punished. Here, again, the judge mentioned the importance of context: “Though ‘professionalism’ has a well-known common meaning, it is inherently subjective and context-dependent,” wrote Contreras. “Such abstract concepts may at times indicate what is allowed and disallowed at the furthest margins, but they do not clearly define what is forbidden or permitted in common practice within those margins.”

In a nice little flourish, Contreras argued that Karem’s constitutional rights “outweigh the White House’s interest in maintaining order." That is a phantom interest in any case, considering the president’s own record of insulting reporters on the White House grounds. A White House authentically interested in curbing unprofessionalism would begin its enforcement activities right in the Oval Office.

Toward the end of his ruling, Contreras was careful to limit its reach: “In granting Karem relief, the Court finds only that the White House likely did not provide the requisite guidance in this specific case — nothing more. . . . The Court does not reach Karem’s independent free speech claim.”

Boutrous issued this statement on the order: "We are very pleased with the court’s order directing the restoration of Brian Karem’s hard pass. The White House’s suspension of his press credentials violated the First Amendment and due process and was a blatant attempt to chill vigorous reporting about the President.”

And in a statement of her own, Grisham, the press secretary, argues, “We disagree with the decision of the district court to issue an injunction that essentially gives free reign to members of the press to engage in unprofessional, disruptive conduct at the White House. Mr. Karem’s conduct, including threatening to escalate a verbal confrontation into a physical one to the point that a Secret Service agent intervened, clearly breached well-understood norms of professional conduct. The Press Secretary must have the ability to deter such unacceptable conduct.”

Read more from Erik Wemple:

In the Brian Karem case, an argument for small government

Is the White House competent enough to boot reporters from its grounds?

Playboy’s Brian Karem seeks restoration of suspended White House press credentials

It’s crunch time for the White House vs. Brian Karem