CNN is going to win the First Amendment lawsuit it filed Tuesday against President Donald Trump’s White House for taking away reporter Jim Acosta’s press pass. And the sad truth is that Trump won’t mind at all.
As the president has shown repeatedly, he doesn’t especially care if, after he violates the Constitution, the courts reverse his action. Instead of understanding judicial repudiation as a defeat, Trump sees the whole episode as a victory.
Worse still, taken in this political context, he’s right. The Constitution is working. But Trump has found a way to subvert it anyhow.
Last week, the White House revoked the pass that allowed Acosta, CNN’s chief White House correspondent, to work in and around the building unescorted. Press secretary Sarah Huckabee Sanders announced that the administration had done so because Acosta had placed his hands on an aide when she tried to take a microphone from him during a news conference. Acosta and the president had been clashing over a question about immigration and the midterm campaign.
The law governing the Acosta case, filed in Federal District Court on behalf of the reporter and the network, is relatively straightforward. The president doesn’t have any constitutional obligation to open the White House to the press. He can choose which reporters he would like to meet with privately, and he can prefer certain networks, like Fox News, for his own appearances or for exclusive interviews.
Once the White House has opened itself up to all accredited reporters with press passes, however, the government has created what is in effect a forum for free speech in interaction with the president. It’s black letter law that, in such a “limited-purpose public forum,” the government isn’t allowed to discriminate based on a speaker’s viewpoint.
That’s exactly what’s happened to Acosta. Trump made clear during the news conference that he doesn’t like the reporter, calling him a “rude, terrible person” and “the enemy of the people.” Trump doesn’t like Acosta’s viewpoint, so Acosta was banned from using White House press facilities.
There’s a judicial precedent on this point. In a 1977 case, Sherrill v. Knight, the U.S. Court of Appeals for the D.C. Circuit, whose jurisdiction includes the White House, held that the First Amendment applies to reporters seeking press passes. And it specifically concluded that the White House couldn’t deny a press pass to a reporter without explaining what the criterion was and telling him how he violated that criterion.
At the time, the doctrine of the limited public forum wasn’t fully in place. But the D.C. Circuit opinion effectively foreshadowed the same idea. The court said it was “presented with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists.”