Julio Gonzalez, M.D., J.D.
On November 7, 2018, a testy exchange took place between the President of the United States and an arrogant, disruptive CNN reporter, named Jim Acosta. The exchange took place when Acosta asked a question of President Trump during a White House Press Conference. Acosta asked, after being recognized by the President, why he used the term "invasion" when referring to the actions of Central American migrants making their way to the United States.
The President curtly responded that he used the word invasion because that's what he thought it was.
Acosta then continued by lecturing the President on the definition of an invasion, to which the President responded by maintaining his position and observing that Acosta and he obviously had a difference of opinion.
Nevertheless, Acosta persisted, reiterating the same answered question of why the President insisted on using the term "invasion" and continuing with his dissertation holding that it was not an invasion.
By this point, the President was done with this exchange and told Acosta as much while actually uttering the words, "Enough," and "Put down the mic."
Acosta neither stopped nor put down the microphone, and when a White House intern reached to retrieve it, Acosta tugged back against her, at one point pushing back against her left arm with his forearm.
Later that day, White House Press Secretary Sarah Huckabee Sanders tweeted the decision to have Acosta's hard pass revoked. And later, when Acosta went to retrieve a hard pass, as he normally does, the Secret Service told him he would not be receiving one.
Shortly thereafter, the world ended, at least according to CNN.
Members of the press have viewed the President's revocation of Acosta's pass as grossly intolerant, even oppressive. They call the action an affront to Freedom of the Press, to Freedom of Speech, and the Freedom to Due Process under the law. They have also claimed that President Trump revoked Acosta's hard pass because Trump does not like Acosta.
The White House, on the other hand, views the action as falling well within its powers to address the unruly and disruptive behavior of an out of control journalist who refuses to follow directions and to cooperate with the President's attempt at conducting the fair and orderly proceedings of a press conference.
With neither side blinking, the argument is now heading to the Federal District Court of the District of Columbia as CNN and Mr. Acosta have filed a complaint against the President and others. Of course, the White House has filed its response.
The bottom line of the situation is this: neither Acosta nor CNN have the inherent right to attend a White House briefing nor to force their attendance upon the President of the United States. In the meantime, the President has the full authority to engage any reporter he wishes and to conduct the White House Press Conference in whatever manner he desires. Neither CNN's nor Acosta's rights have been infringed, and neither the First Amendment right to Freedom of Speech nor Freedom of the Press may ever be construed to give a reporter, or anyone else for that matter, the right to force themselves into the White House for any purpose.
Some argue that the conduct of the President runs contrary to convention. Specifically, they cite other presidents who have had confrontations with correspondents like Sam Donaldson, Dan Rather, and Helen Thomas and have done so without revoking their passes. This may be so, but neither of these reporters has refused to hand over the microphone when specifically told to do so. They also cite tradition and decorum, but the argument can equally be lodged at Acosta regarding his conduct.
These arguments, although interesting, speak to public relations issues, statesmanship, and collegiality, and are largely immaterial because the argument before the court is purely a legal one, not a political one (at least in theory).
The legal arguments are more complex, but lead to the same fruitless conclusion. We have already addressed the non-argument of the First Amendment. But how about the Fifth Amendment and Due Process?
Here, the plaintiffs rely on one case: Sherill v. Knight. In that 1977 case decided in the Circuit Court for the District of Columbia, a reporter named Robert Sherrill was continuously denied access to the White House press conference by Secret Service. When he inquired why, the Secret Service would respond with a vague excuse of presidential security.
In reviewing the matter, the court held that the Secret Service owed Mr. Sherill some sort of due process. From this, CNN argues, the White House has violated Acosta's due process rights.
However, Acosta's circumstances are clearly distinguishable from those of Sherrill. First, Acosta was given access, and he abused it.
Second, even if one were going to make the argument of notice, the White House has met it. The Supreme Court has held that in order for someone to demonstrate a breach of his or her due process rights, the plaintiff must demonstrate that he or she had an interest that was being infringed, that the government did not give him or her notice of the infringement, and that there was no opportunity to seek redress. Crucial to the understanding of Acosta's due process rights is the concept laid out by the Court, that the sophistication/formality of the "process" is related to the degree of importance of the interest. So, for example, if the government is removing your access to a specific parking space that you previously used, such an act involving a relatively minor interest would require a lower level of formality in procedures than if it was taking away your social security benefits.
In Acosta's case, his interest in being able to continue to access the press conference is relatively insubstantial. For example, he can still exercise his First Amendment rights to free speech regardless of whether he attends. Similarly, for CNN, the White House lists 50 other CNN reporters with hard passes, so CNN isn't really dependent on Jim Acosta in continuing to cover the President. Second, and most importantly to the court, because CNN has not fired him, Acosta has not lost a single dime in wages because of the decision. As a matter of fact, one could argue that his position as a journalist has actually improved!
Having established Acosta's less than monumental interest in accessing the White House, what about the procedures? Well, he received notice when Sanders tweeted out the White House Press Office's decision to withdraw his pass and again when Secret Service told him upon his presentation to the White House for access. Then, he and CNN exercised their rights to redress when they wrote Sanders asking that the matter be rectified. And they received a ruling on the redress when Sanders, in writing, responded in the negative.
Finally, consider all the things CNN is asking the court to do in order to satisfy Jim Acosta. First, it is asking the court to create a new right; the right for a reporter to remain in the White House press corps once given access despite a presidential decision against it. Second, it is asking the court to intrude into the President's authority on how to run a press briefing by limiting his ability to determine who does and who does not attend. Third, CNN is asking the court to further muddy the separation of powers doctrine by intruding into another branch's purview and direct it on how it should perform its internal functions. Although admittedly, the court has done so many times, such a move, in this case, would be particularly brazen. And finally, it is being asked to disturb the comity between the branches to appease the misbehaviors of one arrogant, pathologically narcissistic journalist.
Put simply, the destination to which CNN is asking the court travel is a number of bridges too far. Even if CNN's lawsuit were to pass the scrutiny of some activist judge, such a ruling would surely fail either in appeal or to at Supreme Court where it would surely go.
Either way, CNN's lawsuit will fail. They're much better off reprimanding Acosta for his inappropriateness, like they should have done from the beginning, and drop this case before it finishes blowing up on them.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and serves in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.