Judge's ruling in CNN case a victory for free press

Friday's ruling by US District Court ...

Posted: Nov 17, 2018 8:42 AM
Updated: Nov 17, 2018 8:42 AM

Friday's ruling by US District Court Judge Timothy Kelly -- a 2017 appointee of President Donald Trump -- requiring the White House to return CNN chief White House correspondent Jim Acosta's "hard pass" struck an important victory for the free press.

If it wasn't clear to the White House before, it should be now: the administration picked an absurd fight spurred by a presidential temper tantrum, dug into an untenable position, and is now very far out on a very thin branch in the courts.

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By basing his ruling on procedural due process rather than substantive First Amendment grounds, Judge Kelly stopped just short of delivering a full vindication of the constitutional right of free press, but he went far enough to make clear where the case is headed.

As a basic principle, anytime the government takes away a person's rights or property, it must afford that person some level of process (hence, "due process"); the extent of the required process depends on the importance of the rights or property at issue. Judge Kelly ruled that the White House took away Acosta's hard pass with essentially no process.

Indeed, the Department of Justice lawyer who argued the case for the administration conceded at oral argument that "there doesn't need to be a reason" for revoking press credentials because "the President has broad discretion." In other words, the President can do whatever he wants, for any reason he wants, and nobody can do anything about it. In his ruling Friday, Judge Kelly firmly disagreed.

There are two important limitations on Judge Kelly's ruling.

First, he granted CNN's request for a temporary restraining order on Fifth Amendment grounds. The return of Acosta's hard pass is only temporary, pending further proceedings. The case will continue -- unless the White House pulls out now, which they would be wise to do -- and eventually Judge Kelly will rule on whether the order requiring the return of the hard pass should become permanent.

Judge Kelly has already made it clear which way he leans on this issue; by issuing temporary relief, he legally had to make a finding that CNN and Acosta are likely to prevail on the case overall. Indeed, it is rare -- not unheard of, but rare -- for a judge to reverse course and deny permanent relief.

Second, Judge Kelly did not technically reach the core First Amendment issue. This was not unexpected. Typically, if a judge can decide a case on a procedural issue, then the judge will not (and does not need to) address the underlying substantive claim. However, this week's court proceedings make clear that the administration isn't going to like where the substantive First Amendment issue comes out, either.

Making the First Amendment argument, CNN -- backed by a broad coalition of media organizations -- argued that the White House cannot deny access to a media outlet based on viewpoint or content. At oral argument, Judge Kelly asked whether the White House could unilaterally decide "we don't like your reporting, so we're pulling your hard pass." The administration lawyer responded "as a matter of law... yes." You don't need to be a judge or a lawyer to understand how absurd that argument is. It will not fare any better under the First Amendment than it does as a matter of common sense.

The White House took a foolish position in the first place by revoking Acosta's access and offering pretextual reasons -- including the laughable notion that Acosta inappropriately "plac[ed] his hands on" a White House intern when she tried to grab a microphone out of his hand, despite contrary video evidence for all to see.

While that argument has since been abandoned, the administration then buried itself deeper, digging in in court even as media organizations and First Amendment experts rallied to CNN's cause.

This lawsuit never should have been necessary in the first place, and now the consequences of the White House's obstinacy have landed. But there's a silver lining: Friday's ruling struck a major blow in favor of due process and the free press. And if the White House presses the case further in the courts, then expect Judge Kelly to deliver a knockout.

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