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.
Brian Darling is a former counsel to Sen. Rand Paul (R-KY).
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