It started with a press conference, or what passes for one under this White House. CNN’s Jim Acosta took a more assertive than usual tack in an effort to question President Donald Trump. For that, he was kicked out, and his “hard pass” for White House access, critical to his job as CNN’s chief White House correspondent, withdrawn.
Although the entire exchange was captured on film, that didn’t stop the White House from issuing “alternative film” as we might put it. The doctored video—courtesy of Infowars’s Paul Joseph Watson—omits Acosta’s “pardon me, ma’am,” as he copes with a young woman attempting to bodily confiscate the mic, and speeds up a section so that a defensive gesture from Acosta appears aggressive.
CNN filed suit on Nov. 13 with a very clean, even elegant 18-page complaint, challenging Trump and citing his threat to withdraw others’ hard passes. CNN’s armed with a 1977 D.C. Circuit case—which is binding on the U.S. District Court for the District of Columbia, of course, as part of the same circuit—that’s going to be tough for the White House to get around.
White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons.
One big takeaway when it comes to public fora and their ilk: Viewpoint discrimination is not allowed. Trump’s confirmed not just anti-media but anti-CNN bias over and over while in office. Whoops.
Let’s go one layer deeper. This 1977 case didn’t just hold that outlets generally have some right to access, but that individual reporters do—and that the public’s interest is implicated in such questions.
Not only newsmen and the publications for which they write, but also 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.
In addition to filing a complaint, CNN argued for a preliminary injunction—that is, for the court to temporarily back CNN against the White House until the case can be resolved in full. The criteria for a temporary injunction include a “substantial likelihood of success on the merits” and a substantial threat of irreparable harm among others. It’s also necessary that there’s urgency and that the injunction serves the public interest.
Fortunately, at least some jurists still take the First Amendment seriously. A reporter granted a hard pass then has a “liberty” right in it; that means it can’t be revoked without due process. Moreover, Judge Kelly found Acosta was also at risk of irreparable harm.
Not that the White House would ever let facts or precedent interfere with their effort to rationalize bias and discrimination. Only grudgingly did the White House concede to restore Acosta’s access.
The good news is, the White House is no more likely to prevail at trial or at the appellate level given the strength of D.C. Circuit precedent. The problem comes in at the Supreme Court level, where CNN would face two Trump appointees and three conservative enablers. Hopefully, this is just Trump’s storyline of the week, and this particular legal battle won’t land before the justices.