CNN has now dropped their lawsuit against the White House because Jim Acosta’s “hard pass” press credentials have been restored, in what is basically a negotiated settlement. Acosta agreed to abide by new rules in exchange for receiving his press credentials. While some outlets have characterized this as compromising or “capitulating” to CNN, it’s actually smart for both parties and overall probably the best resolution. We’re America, land of the lawsuit, but not every dispute needs a courtroom resolution.
The thing no one was really talking about in terms of the merit of the case is the difference between federal legislation and procedural rules. Unfortunately, the Supreme Court and federal courts increasingly don’t distinguish between law vs. government action. They should.
Does any person have a “fundamental right” to be present at the White House in a press briefing? Doesn’t separation of powers and executive discretion suggest that the president can control access to the White House? CNN wasn’t kicked out — they could have sent another reporter, so how this is even a violation of the First Amendment? CNN and Acosta didn’t sue on the basis of a specific law or regulation that was violated. People (and perhaps some judges) assume that because Acosta is a member of the press, then there is automatically a First Amendment legal question. But is that how we should analyze this?
Congress is the only branch of federal government that can make law, and the executive and even judicial branches have wide latitude to put policies and procedural rules in place to order their business. Procedure is not law. Even Congress has discretion within the ability to set forth their own procedural rules. Sometimes procedure can run afoul of law, but here there is no law CNN has cited that has been violated for the White House to require and enforce decorum at a press conference.
For example, the Constitution requires that the Senate provide “advice and consent” to confirm Supreme Court nominees, like we just saw with Justice Brett Kavanaugh. But the Constitution does not proscribe the specific procedure by which the Senate gives its advice and consent. That’s why we ended up with the so-called “nuclear option” — the Senate may change its rules. The executive and judiciary may change their procedures, too.
Thus, it’s incorrect to define “Congress” in the context of the First Amendment as equal to the entire government or any government action that is nonlegislative in nature.
Moreover, the president’s office doesn’t have any constitutional obligation to hold press conferences, but if they do, that still doesn’t make the press conference a public forum or even a limited public forum. Thus, this isn’t a First Amendment question and should not be analyzed legally as such. If the White House stopped the practice of providing hard passes altogether, why would that be a violation of the “freedom of the press” any more than it’s certainly not a violation that there are no cameras allowed in the Supreme Court? Or is the argument that when the government issues a hard pass, that is an “entitlement” and that the removal has to be justified?
The First Amendment does not give anyone the right to just walk onto the Senate floor and start talking any time they please. Procedural restrictions on access are distinct from a legislative or even government action that infringes on the First Amendment. Is CNN really advancing the argument that individuals or journalists should also sue the Senate because they don’t get to ask questions from the gallery?
Even if Acosta wanted to suggest that being kicked out was arbitrary, enforcing decorum is not arbitrary. The president, as chief executive, gets to control access to the White House and should have a very wide latitude on setting those standards, like the rules they just imposed. If Acosta is going to treat White House staff and the president with gross disrespect, he has no place in the White House. Certainly, we want a robust and free press that asks hard questions, but Acosta stepped over the line and should not be rewarded for his behavior.
Protesters during the Kavanaugh hearings were escorted out for being disruptive. Can they now sue? During the course of a jury trial where due process is happening, a judge may still hold the defendant in contempt for disrupting the proceedings. Judges vary widely in what they require in their courtrooms and what procedure and decorum they expect.
It’s not unreasonable or arbitrary to expect that guests on White House grounds or inside the Senate or Supreme Court not disrupt proceedings, regardless of how that disruption may manifest itself. Further, Acosta isn’t being prosecuted or even accused of a crime, and his hard pass isn’t his own property. It’s like a hotel key — it provides access, subject to the terms and conditions of use, but that access can be denied if a guest breaks the rules. The key itself and the property it accesses still belong to the hotel.
So, regarding the Fifth Amendment due process claim and the basis for temporary restoration of the hard pass pending the outcome of the case, the judge should not have granted the temporary order. There was no irreparable harm, and CNN likely pulled their suit because the likelihood of succeeding on the merits was far less than 50/50. Acosta could still apply for a day pass, cover the press conferences via television (he has no guarantee he will be called on for questions even present at the conference), and most importantly, he isn’t representing himself. He is there representing CNN. CNN has many other journalists they could send instead.
The fact that the judge that issued the temporary order is a Trump appointee only serves as a reminder that generally conservative judges are, well, conservative. They are cautious. Like judges often do in imposing other kinds of temporary orders, they usually hold in favor of what is most conservative and out of an abundance of caution. Acosta may be acting like an obnoxiously disruptive jerk, but no one was arguing that he actively presents an actual security threat to the White House or the president.
While I disagree with the order from a legal posture, I don’t think it’s really surprising that the judge would require restoration of the hard pass pending the outcome of the case. But the final resolution here spared the parties (and the nation) extended litigation over basic executive authority to enforce procedure. For the White House to now issue rules that everyone has to abide by is the best remedy. If Acosta continues to be Acosta, he’ll get his pass revoked again and cannot claim that it’s arbitrary or he didn’t have notice. If he instead begins to behave himself, well, that will just mean press conferences are nicer for everyone.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution. She can be reached at [email protected].
