CNN recently won round in its legal battle with the White House over press credentials for its aggressive White House correspondent Jim Acosta. The ruling seemed correct on the law, but narrower than it could have been, postponing for another day a definitive decision on the free speech rights of the White House press corps.
The White House revoked Acosta’s press credentials last week shortly after a tense exchange between Acosta and President Donald J. Trump at a recent press conference. It was the first time in history that the White House revoked the credentials of a reporter who had White House reporting privileges.
This past week, D.C. federal district court judge Timothy Kelly, a Trump appointee, granted CNN temporary injunction against revoking Acosta’s White House press credentials. Litigation could continue next week toward a permanent ruling in the case. In the meantime, Acosta returned to normal White House press corps access.
The ruling is not surprising.
The D.C. Circuit Court, an appellate court one step below the Supreme Court and immediately above Judge Kelly, long ago ruled that White House press passes cannot be revoked or denied arbitrarily, and certainly not because of disapproval of what a particular journalist has to say.
Instead, the government must supply a “compelling” reason for the revocation, like the security of the president or his family. This reason must be in writing, and the reporter affected must have notice of the basis for revocation and an opportunity to rebut it.
Judge Kelly followed this ruling, stating narrowly that due process entitles CNN and Acosta to an explanation of the basis for its revocation and an opportunity to appeal it. Indeed, the trial judge said that the process for approving or revoking White House press credentials was “shrouded in mystery.” It wasn’t even clear who decided in Acosta’s case, the judge said.
Free Speech
Thus, by relying on due process principles, the court has not ruled definitively on the free speech issue at the heart of the case.
Even so, the ruling is unsurprising from a free speech perspective as well. It is in accord with a longstanding free speech principle that “content-based” restrictions on speech – rules that depend on the content of what the speaker is saying – get “strict scrutiny,” the most demanding type of judicial review. Even worse from constitutional perspective is action that is “viewpoint-based” – e.g., not just shutting down a reporter because she brings up our Saudi Arabia policy, but because she seems critical of it.
CNN argued that it was precisely viewpoint discrimination at work in Acosta’s case: Acosta aggressively questioned Trump, sometimes critically, and Trump retaliated.
Despite denying this, the White House seemed to bolster CNN’s argument when it first put forth an explanation for the move against Acosta that appeared pretextual. Specifically, the White House claimed that Acosta had improperly touched an intern who tried to take the microphone away from him and released a video to support this allegation that appeared to have been doctored. Judge Kelly criticized this initial explanation, calling it “likely untrue and at least partly based on evidence of questionable accuracy.”
The White House’s later alternative explanation, that it was banning Acosta for his “rudeness” and unwillingness to yield the microphone to other reporters, struck the judge as insufficiently detailed to provide CNN and Acosta the process they were due.
Self-Censorship and Watchdog Function
The revocation did seem to present a non-trivial threat of a “chilling effect” on reporters covering the president. If a reporter’s aggressive questioning could get him thrown out, other journalists may self-censor, treading more lightly to stay on the president’s good side.
This kind of journalistic timidity could compromise the watchdog function that the White House press corps is supposed to provide, and on which our democracy depends. For that reason, many other media organizations filed “friend of the court” briefs in the case supporting CNN – even its archrival Fox News Channel, a conservative news network and stalwart Trump supporter.
In response to the ruling, the White House said it would promulgate rules of behavior for White House journalists. If reporters didn’t “behave,” Trump said, “we’ll end up back in court.”
Although the CNN case is technically still ongoing, with further hearings possible in the coming weeks, it seems likely that that the White House will allow the controversy to die for now. But if further blowups occur at future press conferences, involving CNN or other organizations, the federal courts may have to flesh out the free speech rules in this area.