Jim Acosta’s First Amendment Defense

David A Fischer

On November 7, the day after the midterm elections, the President held a press conference. In an average administration, that statement could evince a real snoozer. The press conference could yield a few interesting tidbits, but it would more likely be filled with carefully-calibrated, spin-doctored gobbledygook that would attract the considered attention of self-described “politics junkies.” As anyone who has passed the proverbial electronics store window filled with blaring televisions (a ubiquitous experience centered around momentous occasions, if you believe most action films) could tell you, this is not a normal time.

In addition to calling a measured question about whether he has emboldened white nationalists a “racist question” and bizarrely ridiculingRepublican candidates who lost their elections, President Donald J. Trump found himself in yet another screaming match with CNN’s Jim Acosta. The two have a history of clashing (for example, Acosta was once criticized for having the temerity to ask President Trump a question about immigration policy at the White House Easter Egg Roll), and last Wednesday’s spat was one for the books.

For anyone who has not the seen the video, I will briefly summarize the conflict. Acosta pressed President Trump on his midterm campaign rhetoric about immigration, and Trump heatedly responded that he felt a group of migrants and refugees was an invasion without offering further justification. After some additional pushing by Acosta, President Trump told Acosta that he shouldn’t concern himself with how the President runs the country. A White House intern swept over to Acosta to seize his microphone. After what a transcript writer might call “[garbled cross-talk],” a clear “pardon me, ma’am,” and a question about the “Russia investigation,” President Trump started to meander away from the podium and Acosta relinquished the microphone. Without fear of amplified pushback, President Trump returned to the podium and delivered a screed against Acosta: “CNN should be ashamed of itself having you working for them. You are a rude, terrible person. You shouldn’t be working for CNN.” After castigating another reporter for defending Acosta, Trump moved onto the next question.

Unlike previous clashes between the two men, this one was not quickly swept away by an ephemeral news cycle. On the same day, Press Secretary Sarah Huckabee Sanders announced on Twitter that the White House was “suspending the hard pass of [Acosta] until further notice.” Acosta shortly thereafter posted a video of a Secret Service officer seizing his White House access pass. Sanders justified revoking Acosta’s access pass because he apparently placed his hands on the White House intern who was attempting to wrest control of the microphone from him. Acosta responded that it was a “lie” and the video evidence appears to show him saying “pardon me, ma’am” as the intern’s elbow comes into contact with his hand. Sanders posted a video the same night that appears to have been doctored to make Acosta’s motion more aggressive. Kellyanne Conway, Counselor to the President, conceded on Monday that the footage was “altered.” The next day, CNN and Acosta filed suit against the Trump Administration in federal district court in the District of Columbia, alleging violations of the First and Fifth Amendments, and that the Administration violated the Administrative Procedure Act by acting arbitrarily and capriciously. CNN and Acosta seek, among other forms of relief, immediate restoration of Acosta’s press credentials. You can find the complaint here. Along with its complaint, CNN asked for a temporary restraining order (immediate, preliminary relief that could include temporary restoration of Acosta’s press pass before a more extensive trial on the merits), and the Court ordered the White House to submit its reply brief to that motion on Wednesday. In its brief, the Trump Administration jettisoned the pretext that Acosta’s credentials were revoked for laying hands on the intern. Instead, the Administration’s First Amendment argument contends that the President’s unfettered discretion to call on or grant an exclusive interview with whichever journalist he wishes allows him to revoke an individual journalist’s existing access to the White House based on that journalist’s perceived rudeness and his media organization’s existing fleet of journalists with White House credentials. The Court held a hearing on Wednesday and is expected to issue a verdict on CNN and Acosta’s motion for a temporary restraining order this morning by 10 a.m. The First Amendment strongly supports CNN and Acosta’s claim.

The White House cannot simply revoke press credentials because it finds a reporter’s questions disagreeable or critical. Acosta has a newsgathering right secured by the First Amendment’s free press clause to have his access to the White House restored. The White House may not “abridg[e] the freedom . . . of the press” by excluding Acosta because of his critical coverage or questions after he has been granted access to the White House for reporting purposes. U.S. Const. amend. I. This constitutional restriction on the White House’s ability to withdraw a critical reporter’s access for newsgathering purposes finds purchase in the First Amendment’s presumption of access to court proceedings. In Richmond Newspapers, Inc. v. Virginia, the Supreme Court held that “a presumption of openness inheres in the very nature of a criminal trial” and reasoned that the presence of the public and press “enhance[s] the integrity and quality of what takes place.” 448 U.S. 555, 573, 578 (1980). When determining whether a particular proceeding or record should be made public, a court considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question. Press-Enterprise Co. v. Super. Ct., 478 U.S. 1, 8 (1986). A high-profile, recent invocation of this doctrine occurred when a media lawyer advocated for the release of a secret client of President Trump’s personal lawyer Michael Cohen. After a successful right of access claim, that client was revealed to be right-wing pundit Sean Hannity.

The doctrine typically bestows an affirmative right of access to information on the information-seeker. No one should have an unabridged right of access to the White House simply because a portion of the building enables newsgathering activities by journalists. However, the Briefing Room and spaces open for press use have been historically open to the press. Further, allowing critical journalists to question the President and other government officials without fear of reprisal plays a significant positive role in the process of gathering news from public officials. The D.C. Circuit recognized as much in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977). Robert Sherrill, a correspondent for The Nation who was eulogized as “a man who never kissed ass,” applied for a press pass to the White House but was denied. Upon challenge, the D.C. Circuit ruled that, when the White House “voluntarily” established press facilities that are open to bona fide journalists, it can only refuse to grant White House press passes when justified by a compelling governmental interest. Id. at 129–30. Furthermore, the court recognized that “the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information.” Id.

Sherrill applies with equal, if not greater, force in the context where the White House revokes an already-granted press pass unjustified by a compelling interest. Jim Acosta has a First Amendment newsgathering interest in accessing the White House facilities and briefings. Additionally, the public have a First Amendment interest in hearing Acosta’s questions and in the enhancing effects that the presence of critical voices have on public debate. Although the First Amendment right of access does not create an affirmative right of access for the general public to romp around the White House, it does restrict the White House’s ability to restrict access to a critical journalist who holds a press pass. The White House would need to justify such a revocation with a compelling governmental interest—a bar that the government cannot meet with its obviously false pretext of preserving safety. Therefore, Acosta has a strong First Amendment argument and his press pass should be reinstated.