Acosta Has No Constitutional Right to a White House Pass

If you wanted a constitutional crisis, folks, federal judge Thomas Kelly has given us one with the issuance of a temporary restraining order requiring the Trump White House to reinstate CNN’s petulant Jim Acosta’s press pass giving him access to the building in which President Trump resides and leads the Free World.

Revoking Acosta’s press pass did not threaten the First Amendment rights of either CNN or Acosta. CNN is free to broadcast what it wants and report on anything it wants and Acosta is free to do the same. The funny thing about freedom of speech and freedom of the press is that while both freedoms are constitutionally guaranteed, the Constitution does not guarantee a right to a particular forum. There is no more right for Jim Acosta to have White House credentials than there is to have White House press conferences at all:

In court on Wednesday, Justice Department lawyer James Burnham argued that the Trump White House has the legal right to kick out any reporter at any time for any reason -- a position that is a dramatic break from decades of tradition.

While responding to a hypothetical from Kelly, Burnham said that it would be perfectly legal for the White House to revoke a journalist's press pass if it didn't agree with their reporting. "As a matter of law... yes," he said.

The White House Correspondents' Association -- which represents reporters from scores of different outlets -- said the government's stance is "wrong" and "dangerous."

"Simply stated," the association's lawyers wrote in a brief on Thursday, "if the President were to have the absolute discretion to strip a correspondent of a hard pass, the chilling effect would be severe and the First Amendment protections afforded journalists to gather and report news on the activities on the President would be largely eviscerated."

No, they wouldn’t, even if Acosta/CNN defenders are treating this kerfuffle as if it happened at the Saudi consulate in Turkey. Acosta is in no danger of being dismembered.  White House press conferences and press briefings may elicit an occasional newsworthy quote, but have morphed from information-gathering sessions to forums where reporters grandstand to advance their careers as they debate rather than inquire and engage in character assassination masquerading as legitimate inquiry. The President has every right to restrict access to the White House where the press conferences are held  just as he has the choice whether to have them at all:

In answer to a lawsuit filed by CNN after the White House revoked one of the network reporter's press passes, the White House on Wednesday asserted that it can decide which journalists are given passes and which ones aren't.

According to a court filing by the Justice Department on Wednesday, White House lawyers say the president and his aides are the sole arbiters of who gets into the White House.

"The President and White House possess the same broad discretion to regulate access to the White House for journalists (and other members of the public) that they possess to select which journalists receive interviews, or which journalists they acknowledge at press conferences," lawyers say in the filing.

"That broad discretion necessarily includes discretion over which journalists receive on-demand access to the White House grounds and special access during White House travel for the purpose of asking questions of the President or his staff..."

"[N]o journalist has a First Amendment right to enter the White House," the filing says.

Bingo. If President Trump doesn’t hold them, and the courts can’t force him to, why does Jim Acosta have the right to attend them? We now have a federal court suggesting courts have a right to tell the White House, part of a separate branch of government, how to run itself. How is this constitutional?

Some have applied the “what goes around comes around” argument, and that a future liberal Democrat could do the same to conservative journalists citing President Obama’s treatment and criticism of Fox News. Fine. There is still no constitutional right to a press pass or access to the President’s home. If a reporter shows up at my house and points a microphone in my direction, I have every right to tell the arrogant doofus to get off my property. Yes, the White House is technically the people’s house, but the President is legally free to determine who he lets in through the front door. 

As White House Press Secretary Sarah Huckabee Sanders, the first White House Press Secretary to require Secret Service protection, duly noted:

“Today, the court made clear that there is no absolute First Amendment right to access the White House,” Sanders said in the statement. “In response to the court, we will temporarily reinstate the reporter’s hard pass. We will also further develop rules and processes to ensure fair and orderly press conferences in the future. There must be decorum at the White House.”

Indeed, there is also no constitutional right to arm wrestle a White House intern for the White House microphone. There is no constitutional right to have the President ask you a question or seat you in the front row. There is no constitutional right to ask four questions when the tradition is one with possibly a follow-up.

Jim Acosta wasn’t there to ask questions. He was there to debate, which is fine if you’re setting up a 2020 presidential bid, but don’t hide behind the First Amendment to argue with and not legitimately question the President:

As is his habit, Acosta doesn’t ask questions -- he makes accusations and argues. Almost daily, he does it with the press secretary; Wednesday, he did it with the president. 

“I want to challenge you,” Acosta began after Trump called on him. Trump realized he’d made a mistake, murmuring, “Here we go,” and Acosta didn’t disappoint.

He insisted that despite the president’s use of the word “invasion,” the caravan of Central American migrants “is not an invasion.”

He adopted a lecturing, I-know-best tone to declare that “they’re hundreds and hundreds of miles away; that’s not an invasion.”…

Finally, Acosta sat down, then stood up to argue again, interrupting another reporter. That reporter, from NBC, praised Acosta and picked up the baton by making his own accusation disguised as a question. He mentioned Trump’s attacks on Democrats and “asked” the president: Why are “you are pitting Americans against one another?”

The First Amendment will survive Jim Acosta not having a press pass. But if the courts insists that the President of the United States can’t run the White House without permission from an allegedly co-equal branch of government, fine. Sit Acosta next to the fire extinguisher, don’t call on him, and let a judge tell us what the Constitution says about that.

Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine and the Chicago Sun-Times among other publications.         

If you wanted a constitutional crisis, folks, federal judge Thomas Kelly has given us one with the issuance of a temporary restraining order requiring the Trump White House to reinstate CNN’s petulant Jim Acosta’s press pass giving him access to the building in which President Trump resides and leads the Free World.

Revoking Acosta’s press pass did not threaten the First Amendment rights of either CNN or Acosta. CNN is free to broadcast what it wants and report on anything it wants and Acosta is free to do the same. The funny thing about freedom of speech and freedom of the press is that while both freedoms are constitutionally guaranteed, the Constitution does not guarantee a right to a particular forum. There is no more right for Jim Acosta to have White House credentials than there is to have White House press conferences at all:

In court on Wednesday, Justice Department lawyer James Burnham argued that the Trump White House has the legal right to kick out any reporter at any time for any reason -- a position that is a dramatic break from decades of tradition.

While responding to a hypothetical from Kelly, Burnham said that it would be perfectly legal for the White House to revoke a journalist's press pass if it didn't agree with their reporting. "As a matter of law... yes," he said.

The White House Correspondents' Association -- which represents reporters from scores of different outlets -- said the government's stance is "wrong" and "dangerous."

"Simply stated," the association's lawyers wrote in a brief on Thursday, "if the President were to have the absolute discretion to strip a correspondent of a hard pass, the chilling effect would be severe and the First Amendment protections afforded journalists to gather and report news on the activities on the President would be largely eviscerated."

No, they wouldn’t, even if Acosta/CNN defenders are treating this kerfuffle as if it happened at the Saudi consulate in Turkey. Acosta is in no danger of being dismembered.  White House press conferences and press briefings may elicit an occasional newsworthy quote, but have morphed from information-gathering sessions to forums where reporters grandstand to advance their careers as they debate rather than inquire and engage in character assassination masquerading as legitimate inquiry. The President has every right to restrict access to the White House where the press conferences are held  just as he has the choice whether to have them at all:

In answer to a lawsuit filed by CNN after the White House revoked one of the network reporter's press passes, the White House on Wednesday asserted that it can decide which journalists are given passes and which ones aren't.

According to a court filing by the Justice Department on Wednesday, White House lawyers say the president and his aides are the sole arbiters of who gets into the White House.

"The President and White House possess the same broad discretion to regulate access to the White House for journalists (and other members of the public) that they possess to select which journalists receive interviews, or which journalists they acknowledge at press conferences," lawyers say in the filing.

"That broad discretion necessarily includes discretion over which journalists receive on-demand access to the White House grounds and special access during White House travel for the purpose of asking questions of the President or his staff..."

"[N]o journalist has a First Amendment right to enter the White House," the filing says.

Bingo. If President Trump doesn’t hold them, and the courts can’t force him to, why does Jim Acosta have the right to attend them? We now have a federal court suggesting courts have a right to tell the White House, part of a separate branch of government, how to run itself. How is this constitutional?

Some have applied the “what goes around comes around” argument, and that a future liberal Democrat could do the same to conservative journalists citing President Obama’s treatment and criticism of Fox News. Fine. There is still no constitutional right to a press pass or access to the President’s home. If a reporter shows up at my house and points a microphone in my direction, I have every right to tell the arrogant doofus to get off my property. Yes, the White House is technically the people’s house, but the President is legally free to determine who he lets in through the front door. 

As White House Press Secretary Sarah Huckabee Sanders, the first White House Press Secretary to require Secret Service protection, duly noted:

“Today, the court made clear that there is no absolute First Amendment right to access the White House,” Sanders said in the statement. “In response to the court, we will temporarily reinstate the reporter’s hard pass. We will also further develop rules and processes to ensure fair and orderly press conferences in the future. There must be decorum at the White House.”

Indeed, there is also no constitutional right to arm wrestle a White House intern for the White House microphone. There is no constitutional right to have the President ask you a question or seat you in the front row. There is no constitutional right to ask four questions when the tradition is one with possibly a follow-up.

Jim Acosta wasn’t there to ask questions. He was there to debate, which is fine if you’re setting up a 2020 presidential bid, but don’t hide behind the First Amendment to argue with and not legitimately question the President:

As is his habit, Acosta doesn’t ask questions -- he makes accusations and argues. Almost daily, he does it with the press secretary; Wednesday, he did it with the president. 

“I want to challenge you,” Acosta began after Trump called on him. Trump realized he’d made a mistake, murmuring, “Here we go,” and Acosta didn’t disappoint.

He insisted that despite the president’s use of the word “invasion,” the caravan of Central American migrants “is not an invasion.”

He adopted a lecturing, I-know-best tone to declare that “they’re hundreds and hundreds of miles away; that’s not an invasion.”…

Finally, Acosta sat down, then stood up to argue again, interrupting another reporter. That reporter, from NBC, praised Acosta and picked up the baton by making his own accusation disguised as a question. He mentioned Trump’s attacks on Democrats and “asked” the president: Why are “you are pitting Americans against one another?”

The First Amendment will survive Jim Acosta not having a press pass. But if the courts insists that the President of the United States can’t run the White House without permission from an allegedly co-equal branch of government, fine. Sit Acosta next to the fire extinguisher, don’t call on him, and let a judge tell us what the Constitution says about that.

Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine and the Chicago Sun-Times among other publications.