UPDATE (11/19/18, 4:25 p.m): This piece has been updated throughout to reflect the Trump administration's decision to permanently restore Jim Acosta’s press pass.
Last week was deeply satisfying for defenders of a free press and an independent judiciary. A federal judge ordered that the White House temporarily re-issue CNN reporter Jim Acosta’s press pass for 14 days. The White House had stripped Acosta of his access after a particularly tense exchange with President Donald Trump on Nov. 7. The federal judge who handed down the ruling in favor of Acosta was Judge Timothy J. Kelly, a Trump appointee.
While heralded by CNN — and First Amendment advocates — this ruling was not initially cause for much celebration. While Acosta had won the first round, the Trump administration at first vowed to once again rescind Acosta’s press pass. Acosta responded by requesting another emergency court hearing.
The fact that the White House blinked is good news for journalists, but it's still worth paying attention to why the administration tried to take Acosta's pass away in the first place.
Now it seems the White House has decided it won't continue fighting this particular battle. "We have made a final determination in this process: your hard pass is restored," read the letter co-signed by White House press secretary Sarah Sanders and deputy chief of staff Bill Shine. Additionally, the White House has laid out new rules for journalists, including limiting all reporters to only one question and explicitly stating that reporters must yield the microphone when asked.
The fact that the White House blinked is good news for journalists, but it's still worth paying attention to why the administration tried to take Acosta's pass away in the first place. The White House had argued that as a matter of law it had the power to revoke the press pass of any journalist whose reporting it disagrees with. The White House was explicitly arguing, in other words, that it has the authority to choose who can and cannot have access.
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This is, like so many other positions held by the Trump administration, a sharp break from past practice and understanding. While not every reporter is granted a press pass, previous administrations have provided press passes to a wide variety of outlets with a wide variety of viewpoints. This will not be the last time that the Trump administration attempts to exert significant control over the press.
Forty-year-old case precedent indicates that a reporter’s access to the White House should not be denied for reasons that are either arbitrary or less than compelling.
Acosta does not have a First Amendment right to be called on in the White House briefing room. But he does have a First Amendment right to report on the news without fear that he will be stripped of his press pass because of what he says or how he says it. The White House would no doubt prefer to chill the questioning of aggressive reporters. But our country and our First Amendment traditions are at odds with such behavior.
Acosta won on Monday, there is no doubt about that. But the fight between Acosta and the Trump administration has opened up a new front in an epic and existential battle about the freedom of the press that will likely continue for the length of Trump’s time in office.
The fight between Acosta and the Trump administration has opened up a new front in an epic and existential battle about the freedom of the press.
After he was stripped of his press pass, Acosta, along with his employer, CNN, sued the White House alleging violations of both the First Amendment and the Fifth Amendment. The First Amendment protects the freedom of the press and the freedom of speech. The Fifth Amendment protects against deprivation of “life, liberty, or property, without due process of the law.”
Acosta asked for a temporary restraining order to get his press pass back. Essentially, Acosta asked the judge to force the White House to reinstate his pass while the case was still being heard. By ruling in Acosta’s favor, Kelly suggested that Acosta was likely to succeed in his suit, but did not indicate why. Had Trump continued to fight it, Kelly’s ultimate ruling could have been based on either Acosta’s First Amendment claims, Fifth Amendment claims, or both.
What Kelly’s narrow ruling did immediately address was only Acosta’s Fifth Amendment claims. Acosta argued that he was entitled to some sort of due process, like notice and a right to be heard, before the White House stripped him of his press pass. In other words, the reporter basically argued that the White House could not revoke his pass without giving him a reason for that revocation and a chance to be heard to argue against that revocation. The judge — correctly — agreed in the context of the emergency injunction. But this left open the possibility that the White House could still revoke Acosta’s press pass later if it comes back with a better, or fairer, process for doing so.
Kelly also did not rule on Acosta’s claims that his First Amendment rights were violated. If the White House had continued to fight this case, we would have expected to hear plenty of arguments about how Trump’s rhetoric against Acosta and CNN violated the First Amendment. Acosta would likely have pointed to Trump’s statements calling CNN “the enemy of the people” in order to argue that the White House’s decision to revoke his press pass amounted to a content-based restriction.
If the White House had continued to fight this case, we would have heard plenty of arguments about how Trump’s rhetoric against Acosta and CNN violated the First Amendment.
In the land of First Amendment law, there are two types of restrictions — content-neutral and content-based. An example of a content-neutral restriction is a noise ordinance that says residents in certain areas cannot play music over a certain level during the middle of the night. The law applies to everyone, regardless of who is playing the music or what the message of the music is. An example of a content-based restriction is a noise ordinance that says residents in certain areas cannot play rap music over a certain level during the middle of the night. The second law is content-based because it singles out a specific type of music for its message, or content.
Judges are rightly worried about content-based restrictions because they often look like government censorship. The purpose of the first law is to let people sleep through the night without loud music waking them up. The purpose of the second law is to prevent people from playing a specific type of music.
Acosta argued that the White House’s decision to revoke his press pass was based on Trump’s dislike of CNN, Acosta and Acosta’s coverage and message. This would have amounted to a content-based restriction. If Kelly agreed with this argument, it could have been hard for the Trump administration to successfully defend against this suit. If, on the other hand, Kelly believed the White House’s decision was based on Acosta’s conduct, not his content, then Acosta would have a hard time winning his First Amendment claims.