Posted on 11/13/2018 1:39:40 PM PST by Kaslin
In short, the case of Cable News Network (hereinafter “CNN”) v. President Donald J. Trump (hereinafter “Trump”), to use a legal phrase --- sucks. I sympathize with CNN in the sense that they feel wronged that reporter Jim Acosta was bounced from the White House to report on the president and the news coming from the White House, yet they don’t have a legal leg to stand on. The president has a right to allow or not allow anybody he wants to cover him at the White House.
CNN’s claim is that the federal courts have the power to compel inclusion of a reporter in journalism at the White House who has had his credentials revoked. CNN’s complaint argues that “the Framers of our Constitution embraced a ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964).” That may be true, but not applicable in this case, because the White House is not a public forum and Mr. Acosta has no right to be there. He can report from public spaces and he, nor any other reporter, has a First Amendment right to a credential. Nothing is stopping Mr. Acosta from reporting and the White House has not jailed him nor used the power of government to prevent him from being on CNN whenever CNN wants to have him on the air.
CNN claims correctly that the president can’t stop CNN from being critical of the White House, yet that is not happening with this action. According to the CNN complaint “the President lacks the authority to quash ‘[t]he sort of robust political debate encouraged by the First Amendment’— debate that is ‘bound to produce speech that is critical of those who hold public office.’ Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988).” CNN’s argument taken to the extreme would argue that the White House should be compelled to call on CNN reporters at briefings and that all reporters have a property interest in a White House credential and nobody could be barred. It is ironic that President Obama’s press shop was notorious for freezing out conservative press voices, yet no conservative outlet sued to be called on.
CNN takes an extreme legal position that the president needs a “compelling reason” to revoke a press pass. CNN argues “that is why the D.C. Circuit has been clear that ‘the protection afforded newsgathering under the first amendment guarantee of freedom of the press requires that . . . access [to White House press facilities] not be denied arbitrarily or for less than compelling reasons.’ Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977). And ‘notice . . . of the factual bases for denial [of access to White House press facilities] with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is . . . [not] based on arbitrary or less than compelling reasons.’ Id. at 131.” This is not a holding of the Supreme Court and ignores the broad discretion any White House has to revoke press credentials. In the cited case, it assumes that a White House could not change procedures ever and may be bound by the precedents set by prior presidents. This case ignores the wide discretion a White House has in giving or not giving press access.
CNN is arguing a violation of the First Amendment to the Constitution. They make the case that both “access” and the “questions” Acosta asked of the President were protected First Amendment activity. They are right that Acosta could not be jailed for a tough question, yet the idea that the White House can’t revoke a credential is absurd on its face. Acosta has no “right to access the White House grounds,” just as I don’t have a right to access the White House to gather facts to write this op-ed. Jim Acosta has every right to be critical of the Trump administration, yet he does not have the right to a press pass.
CNN also makes the argument that the Fifth Amendment to the Constitution was violated “protected liberty and property interests in Acosta’s press credentials and the access it affords to the White House.” This is where the CNN case falls apart. There is no property interest in a White House press pass. A final argument is that the Secret Service violated the Administrative Procedures Act in revoking the press pass, yet the remedy for that violation would not allow a court to compel any president to give back a press pass.
This case has no merit and should be immediately disposed of by the courts. An extended fight on this issue will lead to CNN losing, because no rational court is going to order the president to give back a press pass knowing that the order will be difficult, if not impossible, to enforce. The courts understand the limits of the Article III powers of the federal courts and they would be hurting the future of the court by ordering an unenforceable remedy.
CNN is arguing a violation of the First Amendment to the Constitution. They make the case that both “access” and the “questions” Acosta asked of the President were protected First Amendment activity.
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Does that mean that EVERYBODY has a right to be in the White House???? Gonna need a bigger room.
Of course not. "Journalists" and "reporters" are "special people" so they get extra rights not available to the peons and unwashed.
Only if he comes out as a trans-sexual or queer.
Then he's "protected".
If the Court treats the presser like President Trump’s Twitter account then who knows. Ridiculous ‘lawsuit’. POTUS should suspend any further pressers until further notice just so Acosta can be blamed for this idiotic court play.
A few years ago, a state supreme court decision was handed down that basically shredded the idea of a "freedom of the press" as it is commonly understood. Basically, the court said there is no such thing as a "free press" that is distinct from a "free citizen" in any way. So an ordinary citizen who posts regularly on blog sites or even sends frequent letters to the editor of the local newspaper is apparently considered "the press" for all intents and purposes under state law.
That's exactly the way it should be. If Jim Acosta has a legal right to a White House press pass, then so do I.
I think the best punishment is to let Acosta back in, but never call on him or acknowledge his existence. He will lose his mind over being ignored.
CNN is responsible for Acosta’s behavior! They should have reprimanded him months ago and then fired his posterior before it got to this point. Actually I think they should not even be allowed to replace him anymore.
If CNN is going to sue Trump then Trump should not take any questions from anyone at CNN on the grounds that CNN is suing him and that any questions from anyone at CNN should be addressed in writing to his attorneys.
That way they are locked out of any press briefing until such time as the lawsuit is resolved.
“So an ordinary citizen who posts regularly on blog sites or even sends frequent letters to the editor of the local newspaper is apparently considered “the press” for all intents and purposes under state law.”
This is true and I’ve testified in a Hudson County voter fraud case where those rights were applicable under the NJ Shield Law.
I applied that right dozens of times and the Court refused not to undermine it. That would require a separate hearing stopping the proceedings and the outcome would not have been in doubt.
In NJ, the State Constitution holds higher protections than the First Amendment. Political speech is considered at the highest rung.
But if the court treats the presser like Trump’s twitter account, then they have to let everyone in the room, including you, me, and all the other Freepers who show up to claim our equal rights with Acosta to be there.
Actually that would be the correct approach.
A legislative robot without any emotions, no need for revenge at all, no need to ‘stick it to them’ at all, would recommend it.
To bad it would tickle me pink if Sarah Sanders and Trump did it :) it would be a hoot! Sometimes the right thing to do is the best approach.
Since this is a matter under legislation, all questions asked by CNN should be referred to the White House counsel.
Great story. I believe the New Jersey standard is that a person is covered by the NJ Shield Law as a “journalist” as long as they are engaged in an activity that is aimed at disseminating information to the public in some manner (newspaper, TV, radio, web blog, standing on a street corner with a bullhorn, etc.). Is this true?
Trump doesn’t have to talk to the press, and they can cancel the daily briefings. Obama rarely spoke with the press. Who needs to listen to the CNN creeps scream on?
Every damn thing the Dems complain about Trump, is the exact opposite of what they say it is. They claim he destroys the press when he has given more access than any of the last 6 presidents! Trump loves talking to the press, but they cannot behave and so shout in his presence, and won’t sit down after their question. They believe they can manhandle women and become complete assholes because their leftism gives them permission, that these pompous, arrogant fools believe they are exposing the evil racist Trump. They aren’t exposing anything except their own asses!
We don’t need it, nor want it.
That’s my guess, too...and it would be sweeeeet to see it tossed w/fines.
Sarah Sanders: CNN is “grandstanding”, we will “vigorously defend” ourselves
“We have been advised that CNN has filed a complaint challenging the suspension of Jim Acosta’s hard pass. This is just more grandstanding from CNN, and we will vigorously defend against this lawsuit.
CNN, who has nearly 50 additional hard pass holders, and Mr. Acosta is no more or less special than any other media outlet or reporter with respect to the First Amendment.
After Mr. Acosta asked the President two questions—each of which the President answered—he physically refused to surrender a White House microphone to an intern, so that other reporters might ask their questions.
This was not the first time this reporter has inappropriately refused to yield to other reporters.
The White House cannot run an orderly and fair press conference when a reporter acts this way, which is neither appropriate nor professional.
The First Amendment is not served when a single reporter, of more than 150 present, attempts to monopolize the floor.
If there is no check on this type of behavior it impedes the ability of the President, the White House staff, and members of the media to conduct business.”
Shoot. Everything about CNN sucks. Nothing new in this.
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