Jurisprudence

The White House Restored Jim Acosta’s Press Pass, but Hasn’t Abandoned Its Attack on Free Speech

Donald Trump points angrily during a heated exchange with CNN chief White House correspondent Jim Acosta during a post-election press conference on Nov. 7.
Donald Trump gets into a heated exchange with CNN chief White House correspondent Jim Acosta during a post-election press conference on Nov. 7.
Jim Watson/AFP/Getty Images

On Monday, Donald Trump appeared to end his effort to bar Jim Acosta from the White House grounds. The president’s staff informed Acosta by letter that a “final decision” had been made to “restore” the CNN reporter’s press pass. Immediately after the White House announcement, CNN stated that its pending lawsuit against Trump and some White House staff to vindicate Acosta’s (and the broadcaster’s) First Amendment rights was “no longer necessary,” and would be dismissed.

The White House’s action followed last week’s order by District Court Judge Timothy Kelly compelling to the White House to return Acosta’s pass, which it had revoked after a Nov. 7 press conference during which Acosta angered the president with persistent questioning about topics Trump wanted to avoid, including his mendacious claim ahead of the midterm elections that a group of refugees hundreds of miles from the U.S. border were about to “invade” the United States.

The White House’s “final decision” also followed its issuance Saturday of another letter to Acosta, this one announcing a “preliminary decision” to permanently strip Acosta of his pass, a decision the White House apparently later concluded could not survive judicial scrutiny.

Yet the apparent end to this bizarre saga may, in fact, only be the beginning of a campaign by the president and his staff—to police the reporting and questioning of journalists by placing disfavored reporters like Acosta at permanent risk of losing their constitutional right to access the White House grounds.

In the same letter announcing its “final decision” to “restore” Acosta’s pass, the White House Communications Office issued a patent threat to Acosta, together with every other member of the White House press corps.

The letter included a set of purported “rules” governing the conduct of reporters during White House press conferences and briefings. Principal among those rules is a mandate that a “journalist called upon to ask a question will ask a single question, and then … yield the floor.” The rules go on to state that a “follow-up question or questions may be permitted” only at the discretion of the president or government official answering the press’ questions.

The White House’s announcement of the new rules might be of little moment, were it not for the penalty that Trump proposes to impose upon violators. The fourth and final rule states that “failure to abide by any [of the foregoing] rules … may result in suspension or revocation of [a] journalist’s hard pass” to the White House. Lest the import of this threat be lost on Acosta, the White House letter closes with this warning: “Should you refuse to follow these rules in the future, we will take action in accordance with the rules set forth above. The president is aware of this decision and concurs.”

Trump’s message to the journalists who cover him could not be clearer: If a reporter chooses to persistently question the president about a topic he finds unpleasant or wishes to avoid—as Acosta, April Ryan, Sam Donaldson, and other leading journalists have long sought—she can expect to be expelled from the White House.

The president’s staff contends that its new rules simply codify long-standing “widely understood practices.” That is not true. As the White House Correspondents’ Association stated following the announcement: “For as long as there have been White House press conferences, reporters have asked follow-up questions.” Chuck Todd offered a more pointed critique that “regulating follow ups is a form of censorship.” Indeed, the most effective questioning of Trump White House officials has invariably come in the form of follow-up questions.

Trump’s rules are not only new, they are also very likely unconstitutional, as indicated by the fact that the White House was ordered to return Acosta’s press pass last week. Trump’s surrogates have attempted to minimize the significance of his courtroom loss, asserting, as Corey Lewandowski did, that Acosta’s case was “not an issue of the First Amendment.” That is not true.

In its 1977 decision in Sherrill v. Knight, the U.S. Court of Appeals for the District of Columbia Circuit recognized that journalists have a constitutional right of access to the White House press facilities and ruled that the “first amendment guarantee of freedom of the press … requires that this access not be denied,” except in extraordinary circumstances. In the lexicon of contemporary constitutional law, the court concluded that the White House press facilities constitute a limited public forum.

It’s true that Kelly did not squarely reach the question of whether Donald Trump unconstitutionally penalized Acosta for the content of his reporting, but that was only because the judge did not need to do so in order to grant CNN’s demand for the immediate return of his press pass.

As the judge explained, apart from allegedly unconstitutionally punishing Acosta for the content of his reporting, the White House also failed to satisfy the Fifth Amendment’s due process requirements for denying the journalist his constitutionally protected right of access to the White House. In light of the “violation of Mr. Acosta’s due process rights and the resulting impact on his First Amendment interests,” the court ruled that the pass had to be returned immediately.

As the White House’s letter to Acosta makes plain, however, the president and his staff are simply unwilling to recognize that journalists have a First Amendment right to access the White House. Instead, Trump and his staff believe they have the ability to kick journalists out for asking questions as long as the “rules” surrounding such expulsions are written down.

The president’s position is at odds with Sherrill, which states that the First Amendment permits the expulsion of journalists only for non-arbitrary and “compelling” reasons. And it is hard to conceive of how persistent, or even modestly indecorous, conduct in a briefing room could ever amount to a compelling reason to kick a journalist out of the White House.

Indeed, the president’s contention that barring purportedly “rude” and “stupid” journalists from White House grounds is necessary to police “professional norms” in press conferences makes little logical sense: As the appellate court stated in Sherill, journalists do not have the right to be called upon in news conferences. The president and his staff are free to ignore reporters they deem to be insufficiently respectful, regardless of whether they have access to the White House press facilities.

In light of that, it is difficult to avoid concluding that the purpose of these new rules is not to police manners in the briefing room, but rather to employ the in terrorem threat of denying journalists their constitutional right of access to the White House as a means of keeping reporters from asking unwelcome questions of the president and his staff. That is a classic form of viewpoint (or content) discrimination that amounts to a virtual per se violation of the First Amendment.

Unfortunately, it appears the president’s scheme to discourage unwelcome journalistic persistence through the use of a permanent threat of expulsion may not face immediate challenge. CNN’s chief White House correspondent just received a clear written threat that Trump intends to kick him out of the White House grounds the next time he has the temerity to ask a follow-up question the president does not like. Nonetheless, CNN made the probably judicious decision to discontinue its lawsuit, presumably in the hope that the president and his staff will not actually make good on their threats and that things in the White House press room will return to something approaching normality.

Other White House journalists who are also within the ambit of the president’s expulsion threat probably have the right to bring an immediate (or “facial”) challenge to the probably unconstitutional White House “rules.” Yet they may choose to wait to bring a challenge—both because of the costs, as well as the reputational and other risks, involved.

It is, however, crucial that journalists covering Trump’s White House adhere to their long-standing practice of respectfully but persistently holding the nation’s leaders to account, regardless of the risk of retribution. If doing so ends up forcing reporters back into court in a yet another lawsuit against a president who doggedly refuses to accept the mandates of the First Amendment, so be it.