Media companies join CNN supporting Acosta; judge to rule Thursday

November 14, 2018

A federal judge will rule Thursday afternoon on whether CNN correspondent Jim Acosta should get his "hard pass" White House media credentials back.

After Acosta was effectively banned from the White House following a confrontation with the president during a press conference, CNN filed a lawsuit Tuesday asking for a restraining order and injunction against the White House's actions. Other media companies have said the action threatens all journalists with whom the president might disagree.

The Department of Justice said in a legal response to CNN's lawsuit that the president of the United States may choose whomever he wishes to be in the White House press gallery.

During a hearing Wednesday in federal court in Washington, D.C., the DOJ also told Judge Timothy J. Kelly, a Trump appointee, that the reason the White House pulled CNN correspondent Jim Acosta's hard pass access to the White House is that he was disrupting press proceedings, as evidenced "from the video he has proffered." 

That is one in a series of reasons the White House has given for pulling that press clearance that allows a journalist easier access to the White House and the people who work there.  Previously, press secretary Sarah Sanders accused Acosta of touching an intern who attempted to take a microphone away from Acosta during the Nov. 7 news conference. The president himself has called Acosta and CNN dishonest and fake news. 

The DOJ said there is no need for quick court action to restore Acosta's access because there are lots of other reporters covering the White House. The DOJ told the judge that Acosta could just watch the White House briefings on TV and report what the president says. The DOJ called CNN's request for an injunction and restraining order:

"… (an) unprecedented and extraordinarily intrusive order that would require the President and Secret Service to grant on-demand access to the White House complex, West Wing press offices, and other facilities in the President’s official residence and personal office suite to someone he has decided to exclude. The public interest does not require that Mr. Acosta be given immediate access to the White House complex. The public can benefit from his reporting from outside the complex during preliminary injunction briefing, and is additionally well-served by the numerous other journalists who retain their hard passes and who will continue to tenaciously ask questions at press events, just as they have done since the revocation of Mr. Acosta’s pass."

The DOJ, in its answer to CNN's lawsuit, said the president is free to grant interviews and access to whomever he wishes, including to White House press conference events.

"If the rule were otherwise, courts frequently would be called on to police the daily give-and-take between public officials and reporters—an arena that is defined by discretion and where public officials routinely grant or deny interviews to specific reporters based on their judgment about how the reporter’s viewpoints will color the interview."

CNN attorney Theodore Boutrous asked what the standards are for the White House denying access to journalists. "Rudeness is not a standard. If it were, no one could have gone to the press conference," Boutrous said during Wednesday's hearing.

Boutrous also claimed that after the White House pulled Acosta's hard pass, the Trump campaign emailed supporters and mentioned CNN's liberal bias. He said the email included the headline, “CNN SUES! Help Trump win.”  CNN says it is one more way to show it was Trump's distaste for CNN's coverage, not Acosta's disruption of the news conference, that was the core reason for pulling the reporter's pass.

CNN has claimed First and Fifth Amendment protections. The first claim is that when the president takes action against a journalist because of what the journalist reports, it is a clear restraint of speech and press. The Fifth Amendment claim focused on a 1977 appeals court ruling that said a journalist who had been denied a White House press pass had a right to due process — a hearing — in which the accusations against him would be spelled out.  

DOJ Deputy Assistant Attorney General James Burnham said during the hearing, "To be in a room where he has no right to speak … this seems to me like an odd First Amendment injury that we're talking about."

Further, the DOJ says there is no First Amendment right of access to the White House. The DOJ said the White House determines who gets hard pass access based on a range of criteria and defendants do not concede — and, in fact, reject — the premise that White House “press facilities are perceived as being open to all bona fide Washington-based journalists.”

"Such a conclusion is untenable in light of the numerous discretionary determinations the White House Press Office must make in allocating hard passes to a subset of bona fide Washington-based journalists—for example, the degree to which the requester’s beat requires reporting on the White House, whether a requester is a journalist with a sufficiently broad audience, and whether hard passes are fairly distributed between comparable organizations. Accordingly, the premise on which the D.C. Circuit’s opinion in Sherrill depends—that the White House Press Office does not exercise discretion in giving out hard passes to journalists, and that access is subject solely to a security review by the Secret Service—does not exist here."

 Among the media companies that filed or will file amicus briefs supporting CNN and Acosta's lawsuit: CBS, ABC, NBC, Fox News, USA Today, The Associated Press, The Washington Post, The New York Times, Bloomberg News, Politico, EW Scripps and Gannett.

“While we don’t condone the growing antagonistic tone by both the president and the press at recent media avails, we do support a free press, access and open exchanges for the American people," said Jay Wallace, Fox News’s president, in a statement Wednesday.