[Vision2020] 11-16-18: Judge orders White House to return press credentials to CNN's Acosta

[Ted Moffett]

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Vision2020 Post: Ted Moffett
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https://www.politico.com/story/2018/11/16/judge-orders-white-house-to-return-press-credentials-to-cnns-acosta-995512

Judge orders White House to return press credentials to CNN's Acosta

The White House said it would 'develop rules and processes to ensure fair
and orderly press conferences in the future.

By JASON SCHWARTZ <https://www.politico.com/staff/jason-schwartz>

11/16/2018 10:33 AM EST

A federal judge on Friday ordered the White House to immediately reinstate
CNN correspondent Jim Acosta's security pass, siding with the network and
media advocates in the first decision in a major lawsuit over press access.

The ruling came as a victory for the White House press corps, which
President Donald Trump has fought against since he took office. He had
derided media outlets as "fake news" and called them "the enemy of the
people."

But the decision to pull Acosta's press pass last week over a dispute
involving a news conference came as a major escalation, followed by another
in court Wednesday, when lawyers for the administration argued that Trump
had the authority to ban any reporter from White House grounds for any
reason.

Judge Timothy Kelly of the U.S. District Court for the District of
Columbia, a Trump appointee, said, however, that the administration
deprived Acosta of “due process” when it stripped him of his press pass.
The judge granted CNN's request for the reporter's access to be temporarily
restored while the rest of the case moves forward.

White House press secretary Sarah Huckabee Sanders said in a statement that
the administration would temporarily reinstate Acosta's "hard pass," which
allows reporters to freely enter and exit the grounds.

"We will also further develop rules and processes to ensure fair and
orderly press conferences in the future," she said. "There must be decorum
at the White House."

"If they don't listen to the rules and regulations, we'll end up back in
court, and we'll win," Trump told reporters later Friday.

CNN said Friday it was "gratified" by the result. "Our sincere thanks to
all who have supported not just CNN, but a free, strong and independent
American press," the network said in a statement on Twitter.

CNN argued in filing its lawsuit that the White House was unfairly
punishing Acosta because it disagreed with his coverage and that it had not
followed appropriate steps to revoke his security badge. A group of news
organizations, including POLITICO and the White House Correspondents'
Association, filed briefs siding with CNN.

Kelly said Friday that he was not ruling on whether the White House
violated Acosta's First Amendment rights by targeting him for his coverage
— emphasizing what he called "the very limited nature of today’s ruling" — but
he said it appeared officials had yanked the reporter's press pass without
any advance notice or chance to rebut. The process by which the White House
came to its decision was so “shrouded in mystery,” the judge said, that
Department of Justice lawyers arguing the case were not even able to say
who inside the White House had made the call to pull Acosta’s pass.

Kelly also noted the White House’s shifting explanations, highlighting that
the administration was no longer relying on its initial justification —
that Acosta had laid hands on an intern, which was disputed by video of the
incident — and that it was only after the lawsuit was filed that the White
House fully laid out its argument that Acosta had been banned for
disruptive behavior.

“These belated efforts were hardly sufficient to satisfy due process,”
Kelly said.

Kelly’s decision Friday does not end the overall case, but it was seen by
press advocates as a good sign. One of the standards for granting a
temporary restraining order — as the judge did to restore Acosta’s pass —
is that the underlying case is likely to succeed. Kelly said CNN appeared
likely to succeed on Fifth Amendment grounds.

“Even if Judge Kelly did not address the First Amendment issues yet, this
is a strong win for CNN and press freedom generally,” said Katie Fallow, a
senior attorney at the Knight First Amendment Institute at Columbia
University. “The judge recognized the importance of restoring the
reporter's access to the White House immediately and rejected the
government's argument that the President has complete discretion whom to
allow at press conferences."

Kelly did not comment directly Friday on the White House's argument that
Trump could strip any reporter he chooses of their security pass. But he
said he was bound to a ruling in a 1977 D.C. Circuit Court case — "whether
I agree with it or not" — that said the government cannot boot out
reporters "arbitrarily or for less than compelling reasons” and must follow
a clear process to do it.

“Once the White House opens” to reporters, Kelly said, the due process
protections apply to removing any media. He said he agreed with the
administration that there was no First Amendment requirement to keep the
White House open to reporters in the first place — which Sanders noted in
her statement about the ruling — but once any were admitted, the rights
exist, Kelly said.

“I simply have no choice,” the judge said.

Speaking of the president, Kelly said, “Certainly he need not ever call on
Mr. Acosta again, but...the government must provide Mr. Acosta due process.”

The judge said he was giving Acosta back his press pass while the case
proceeds because he would be done "irreparable harm" if he were deprived of
it. “The court cannot restore” access to missed press conferences or
newsworthy events, the judge said.

The case will resume next week, as Kelly said he expected it to “proceed at
a rapid pace.”

Acosta watched the events unfold inside the courtroom but did not react
when the judge read his decision. Outside the courtroom, though, a CNN
group appeared to pose together for a photo.

"Let's go back to work," Acosta said to reporters assembled outside the
courthouse.
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