- The Washington Times - Wednesday, November 14, 2018

Nobody has a First Amendment right to demand access to the White House and CNN isn’t harmed by having reporter Jim Acosta barred from obtaining press credentials, the Justice Department said Wednesday, firing back at the cable network’s new lawsuit.

The fight reached a Washington courtroom Wednesday afternoon, where U.S. District Judge Timothy J. Kelly, a Trump appointee, heard arguments on CNN’s request that he immediately order the White House to reissue Mr. Acosta a pass.

The judge did not issue a ruling, saying he would return to the courtroom Thursday.

Government lawyers told him there’s no need to issue an emergency order restoring the press pass, since CNN has nearly 50 other journalists credentialed to cover the White House, and the network isn’t damaged.

They batted away CNN’s claims that it’s being punished for its critical coverage of this president, and said it would be unthinkable for the White House to have no control over who gets to enter.

“No journalist has a First Amendment right to enter the White House,” the administration argued in a 28-page brief.

The lawyers added: “The president is generally free to open the White House doors to political allies, in the hopes of furthering a particular agenda, and he is equally free to invite in only political foes, in the hopes of convincing them of his position. The First Amendment simply does not regulate these decisions. And the First Amendment does not impose stricter requirements when journalists, as a subset of the public, are granted or denied access to the White House.”

The White House said Mr. Trump gave his personal blessing to strip Mr. Acosta’s pass last week after he verbally sparred with the president during a press conference, then got into an altercation with a White House intern. When the woman came to take the microphone from him, Mr. Acosta refused to give it back, using his hand to chop at the woman’s elbow to prevent her from controlling the microphone.

CNN downplayed the contact while the White House has insisted it was a physical assault.

The Justice Department, arguing the case for Mr. Trump, said Mr. Acosta’s conduct “disrupts press events and impedes other reporters from asking questions,” which officials said was “a more-than-sufficient reason for revoking his hard pass.”

CNN, though, says revoking the press pass will have a “chilling effect” on other media.

Fox News, the Associated Press and other press outlets agreed, announcing Wednesday they will file friend-of-the-court briefs backing CNN in the lawsuit.

CNN’s original lawsuit, filed Tuesday, claimed Mr. Acosta’s First Amendment press rights and his Fifth Amendment due process rights were violated by the pass revocation. They also said the decision violated process laws because it was arbitrary and Mr. Acosta was never given any notification.

They cited a case from the federal circuit court of appeals in Washington in 1977 where judges ruled the Secret Service couldn’t revoke a reporter’s White House pass in an arbitrary way, without further proceedings.

“The D.C. Circuit has been clear that ‘the protection afforded newsgathering under the First Amendment guarantee of freedom of the press requires that … access [to White House press facilities] not be denied arbitrarily or for less than compelling reasons,’” CNN argued.

The Justice Department, in its brief, pointed to a 2006 case involving a dispute between Maryland’s governor and the Baltimore Sun newspaper. A federal court in that case ruled the governor didn’t violate the First Amendment by ordering state agency employees not to speak with two reporters from the paper.

“In reaching that conclusion, the court explained that providing ‘relatively less information’ to one reporter was permissible, even when done ‘on account of [that journalist’s] reporting,’” the lawyers argued.

At best, the Justice Department said, Mr. Acosta might be entitled to more process.

But the lawyers said CNN was stretching to say not having Mr. Acosta covering the White House was a blow to the public.

“Said differently, plaintiffs have not established that the public interest is uniquely harmed by Mr. Acosta’s absence, in light of the other tenacious reporters still on the White House beat,” the Justice Department argued.


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