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Gov’t: Trump has discretion to limit Acosta access, particularly after “disrupting press proceedings”

Gov’t: Trump has discretion to limit Acosta access, particularly after “disrupting press proceedings”

Court to rule later today on CNN and Jim Acosta demand he immediately get his press “hard pass” reinstated

On November 13, 2008, CNN and Jim Acosta filed in federal court in D.C. for a temporary restraining order and preliminary injunction seeking a court order overruling the White House decision to revoke Acosta’s “hard pass” — the press pass that provides Acosta with “regular and unescorted access to the White House and White House briefings.”

Acosta’s hard pass was revoked after a November 7, 2018, incident during a press conference when Acosta refused to yield the floor after having asked two questions, and physically blocked with his arm and hand a White House intern from taking back the microphone as the Trump wanted to call on someone else.

The media falsely has claimed that the video of the incident circulated by Sarah Sanders was “doctored,” when in fact a portion of it was slowed down to see more clearly the arm and hand contact. It was obvious that a portion was in slow motion, and nothing was doctored. Whether full speed or slow motion, it shows Acosta using his arm and hand to block the intern as he refused to yield the microphone.

As an example of media falsely claiming the video was doctored, WaPo has produced this side-by-side video, which has over 600,000 views. But all the video show is that the slow motion accurately demonstrates the contact, much as slow motion video in football can who if a ball hit the ground (thinking of the famous Edelman catch).

The Complaint and motion papers are included in our prior post, CNN sues Trump over suspension of Jim Acosta’s press pass after he got physical with White House intern. The relief CNN and Acosta seek is extraordinary — it would involve the Court in the micromanagement of White House press conferences and press access policies

The Court set a hearing on the TRO request for today at 3:30 p.m., and required that the government file its opposition by 11 a.m. this morning.

The government filed its Memorandum in Opposition to the TRO (pdf.)(full embed below).

Here is the introduction to the government’s memo of law:

On November 7, 2018, the White House revoked the “hard pass” of CNN Chief White House Correspondent Jim Acosta—the pass that permitted him broad, on-demand access to the White House grounds—following an incident in which he disrupted the fair and orderly administration of a press conference during an exchange with the President. That discretionary decision was lawful. 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. Plaintiffs deny that this broad discretion exists, but under even their curtailed view of the White House’s authority, revoking Mr. Acosta’s pass was permissible. That revocation was premised on stated reasons that are viewpoint- and content-neutral and are evident from the video of the November 7 press conference. Because the White House’s decision comports with the First Amendment and the Due Process Clause, and because Plaintiffs  have fallen short of the high showing necessary for the extraordinary remedy of emergency relief, the motion for a temporary restraining order should be denied.

In particular, the government pointed out the wide discretion the White House has in controlling press access to the president:

Foremost, Plaintiffs are unlikely to show a likelihood of success on the merits. With respect to their First Amendment claim, the President and his staff have absolute discretion over which journalists they grant interviews to, as well as over which journalists they acknowledge at press events. 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. No journalist has a First Amendment right to enter the White House and the President need not survive First Amendment scrutiny whenever he exercises his discretion to deny an individual journalist one of the many hundreds of passes granting on-demand access to the White House complex. Plaintiffs rely on the D.C. Circuit’s decision in Sherrill v. Knight, 69 F.2d 124 (D.C. Cir. 1977), but that case is not as broad as they suggest.

Far from establishing all-purpose rules for regulating White House press passes—rules that apply to everything from the Secret Service’s determinations about security risks to the President’s personal exercises of discretion based on his first-hand observations—Sherrill addressed solely the Secret Service’s decision to deny a pass on security grounds to a journalist to whom the White House had otherwise decided to grant access. That critical predicate is absent here; “all parties” do not “recognize” that Mr. Acosta deserves access to the White House as soon as he clears a Secret Service security review. Id. at 131 n.22. In stark contrast to Sherrill, Mr. Acosta’s access has been denied at a different stage in the decisional process (the White House’s discretionary decision about which journalists to speak with), ratified by a much higher-level decisionmaker (the President), and is based on a personal interaction between the President and Mr. Acosta (the November 7 press conference). But even if the rules Sherrill expounded apply equally here, those rules have been satisfied. Sherrill bars only denials “based on arbitrary or less than compelling reasons.” The stated rationale for the revocation of Mr. Acosta’s pass—that he was disrupting press proceedings—is evident from the video he has proffered, is entirely viewpoint- and content-neutral, and clears this limited bar.

The government disputed that Acosta had a First Amendment right to the press pass:

Plaintiffs’ First Amendment argument rests on the assertion that “there can be no question that the revocation of Acosta’s credentials is a content and viewpoint-based punishment imposed on him because the President and his administration do not like CNN or Acosta’s reporting.” Pls.’ Br. 11. Not so. Even in this preliminary posture, the record available to the Court contradicts Plaintiffs’ characterization. Rather, as the Press Secretary publicly explained, Mr. Acosta’s conduct impeded the White House’s ability to “run an orderly and fair press conference[.]” Sanders Statement; see also id. (“After Mr. Acosta asked the President two questions—each of which the President answered—he physically refused to surrender a White House microphone to an intern, so that other reporters might ask their questions. This was not the first time this reporter has inappropriately refused to yield to other reporters.”).

First, Plaintiffs’ own description of the November 7 press conference validates the White House’s stated reasons for revoking Mr. Acosta’s hard pass. In Plaintiffs’ telling, Mr. Acosta asked a question of the President, but the President did not permit him a follow-up. Compl. ¶¶ 33-34. Rather than acknowledge the President’s attempt to move on to a different journalist, however, Mr. Acosta continued to try to hold the floor, such that a White House staffer attempted to physically reclaim the microphone Mr. Acosta had been using. Id. ¶ 34. Even after the staffer actually had her hands on the microphone, Mr. Acosta continued his refusal to permit another journalist to ask a question, ignoring both the stated wishes of the President and the efforts of a staffer tasked with helping to manage the event. See id.; see also Donaldson Decl. ¶ 9 (acknowledging the salience of “Jim Acosta’s conduct” during the press conference).

Perhaps the government’s best point is somewhat buried — if the White House was motivated by hostility to CNN and Acosta’s political viewpoint, why was there not prior retaliation until this incident?

Second, Plaintiffs claim that the decision to revoke Mr. Acosta’s hard pass was the result of the President’s allegedly “clear . . . antipathy” for “CNN [and] Acosta’s reporting.” Pls.’ Br. 11. But approximately 50 other CNN journalists retain hard passes to enter the White House complex, undercutting their argument that revoking Mr. Acosta’s pass was part of an effort to punish or silence CNN. Plaintiffs’ complaint alleges that this antipathy is longstanding, without any plausible explanation as to why there were no allegedly retaliatory actions against Mr. Acosta previously. Compl. ¶¶ 27-29. The more natural explanation for the White House revoking Mr. Acosta’s pass on November 7, 2018—and to not revoke any of the other 50 passes held by CNN journalists—is that Mr. Acosta’s revocation is based on his conduct at the November 7, 2018 press event.

The government SHOULD win this TRO motion.

The key factor is that Acosta demonstrably was disruptive, refused to yield the floor, and blocked the intern.

If the Court imposes on the White House as to Acosta, where does the line get drawn? What level of disruption and obstruction will be permitted of media in the room? Will the court force Trump to call on Acosta?

A Court should be very hesitant to get involved in this on an emergency basis in light of the clear video showing, at minimum, disruption by Acosta after being asked repeatedly to stop.


CNN and Acosta v. Trump – Gov’t Memo in Opposition to Motion for TRO by Legal Insurrection on Scribd


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Respect the host. Respect the girl, who’s coordinating shared time. #MeToo, right?

The WH could just install a TV in the briefing room that loops a pre-recorded statement.

I’m not sure what value the WH press are actually adding for the American people at this point. They were stenographers through the Obama admin and now they’re huffy teenage girls.

    Gremlin1974 in reply to Andy. | November 14, 2018 at 12:56 pm

    Actually the White House can close the “briefing room” entirely and just issue statements.

      gospace in reply to Gremlin1974. | November 14, 2018 at 1:27 pm

      Actually the White House can close the “briefing room” entirely and bypass the press entirely via twitter and facebook and other social media.

Connivin Caniff | November 14, 2018 at 12:44 pm

My defense of the President in this matter is very simple: Mr. Acosta, what would it be like if all 150 “reporters” in the room acted like you do? If they did, not even you, Mr. Acosta, would have a suitable stage for your idiotic histrionics.

Everybody whining that Acosta ‘assaulted ‘her’…. no, he didn’t, and people claiming that he did allow Acosta and CNN to completely avoid the question of whether he’s a disruptive asshole.

No member of the press has a ‘right’ to access, Trump can throw him out if he doesn’t like his haircut, we don’t have to manufacture an ‘assault’ to agree that Acosta is a complete asshole and Trump doesn’t have to put up with him.

    Gremlin1974 in reply to Olinser. | November 14, 2018 at 1:01 pm

    Actually watch the video, what he did was technically battery, he did force her arm away, now it wasn’t violent and for anyone to claim that is should be prosecuted is kind of silly, but either way he was completely out of line, has been out of line for some time, and actually should have had is credentials revoked a year ago.

    If the Judge rules in Trump’s favor for the TRO, which I think he will, then the WH should announce that it is making the revocation permanent.

    One thing that is being ignored in all of this is that CNN had 50 other staff with Hard Passes, so they don’t “need” Acosta to have his.

      Deja vu? I think I’ve seen something about this kind of thing in the media before…something about a “war on women.”

      Selective CRS.

    If not “assault”, what word describes Acosta physically preventing (blocking? restraining?) the intern from doing her job?

    I’m surprised white-house counsel isn’t representing the intern in counter-suit against Acosta/CNN. The message needs to be ‘get physical with WH staff, get evicted’.

      Gremlin1974 in reply to MrE. | November 14, 2018 at 1:10 pm

      Maybe they need to have an Armed Secret Service Agent handle the mic for a while?

      I do love looking at the Inten’s face after he pushed her arm down though. I have a feeling that if the lady hadn’t remembered she was on TV Little Jimmy would have been picking himself up off of the floor, lmao.

      Toranth in reply to MrE. | November 14, 2018 at 2:38 pm

      Since the microphone didn’t belong to him, but was instead lent to Acosta for a limited time and specific purpose, would his attempt to retain possession after being told the lease was over constitute an attempted theft?

      And then an assault in the commission of a theft… It may be a couple of misdemeanors, but it’d still make the point.

        JPL17 in reply to Toranth. | November 14, 2018 at 2:59 pm

        Actually, the use or threat of violence in the course of committing (or attempting to commit) a theft from a person is technically a robbery. So if you’re correct that what Acosta did is theft (or attempted theft), then he’s also guilty of robbery — which is a felony. So to all you ambitious, over-charging Assistant U.S. Attorneys out there — call in the grand jury now!

In that this the WH itself, there is not a thing the courts can do if Trump refuses to abide by a left wing judge making a political ruling.

Which judge will be hearing this motion?

If the Court rules against Trump, he should just refuse to hold any further press conferences until the Acosta suspension runs out. Instead, perhaps, invite select members of the media for one on one interviews.

Bucky Barkingham | November 14, 2018 at 1:09 pm

If the court rules in favor of CNN what next? Can a reporter claim a 1st Amendment right to ask as many questions as they want? Can a reporter claim a 1st Amendment right to be called on at a presser?

I dislike splitting the fine hairs of “doctored” because Sanders had to have known from where the video hailed. Wasn’t it blatantly picking a fight? Which she is free to do.

Anyway, there’s no question Acosta should lose, because America does not have nobility and the pass is not his property. This instantly makes me doubtful he will lose. “Should” has little to do with anything anymore. And, the trend is, once the government grants something, it becomes an entitlement, and thus subject to due process. There is discretion to give goodies, but not to take them back. If the result is chaos, chaos we shall have. Far too many people are comfortable with that result.

The First Amendment guaranty of a free press had nothing to due with access to any person or place. The guaranty was about content and opinion. (In that the government could not have reporters or authors arrested because they didn’t like what they published.)
Sense the advent of television the claims on that freedom have been taken to absurd levels. It is time that the courts remind journalists of the original intent.( but I won’t hold my breath.)

    Milhouse in reply to Shadow5. | November 14, 2018 at 1:56 pm

    The freedom of speech and of the press is one thing, not two. All it means is that we are free to say whatever we like, whether orally, in print, electronically, or with smoke signals. The government can regulate the time, place, and manner, but not the content.

      Shadow5 in reply to Milhouse. | November 14, 2018 at 2:01 pm

      Then obviously we are in agreement, as that was my point entire.

      Ulysses in reply to Milhouse. | November 14, 2018 at 3:28 pm

      The Supreme Court reinforced that the press does not
      receive special treatment for First Amendment purposes in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). See id. at 352 (“We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” (citation omitted)). A rule that limits the White House’s discretion to grant or deny journalists hard passes would thus risk requiring the White House to grant full access to any member of the public who would like to ask the President or his staff questions.

      countrylaw in reply to Milhouse. | November 14, 2018 at 4:08 pm

      The one case the Plaintiff’s (CNN) cite is Sherrill v. Knight a 1977 DC Circuit decision. That decision has been supplanted by technology changes and 40 years of case law that eviscerate the Sherrill Court’s analysis.

      In the intervening years, the Supreme Court has held that the First Amendment rights of journalists are no greater than average citizens. Advances in technology make it easy for everyone to receive information instantly. Furthermore everyone can propagate information equally and instantly. Any special role the Sherrill Court implicitly assumed the press may have played in information dissemination has been supplanted by technology.

      Journalists no longer need to be intermediaries. Any citizen can be a journalist and disseminate information. The White House can disseminate information instantly and does not need journalists to be intermediaries.

      The notion of press briefings is outmoded. It is mere entertainment now.

      Freedom of the press is the freedom of the printing press, not the mythical anointed priesthood that now calls themselves ‘the press’ they don’t have special super first amendment rights that the rest of us don’t have.

        Shadow5 in reply to rdm. | November 14, 2018 at 5:19 pm

        As with many things sense the ratification of The Bill of Rights, the terms and definations have had to change with advancements in technology. By your logic the Second Amendment would only apply to muzzle loaders and flintlocks.

I think the judge should see this in much simpler terms. Does a judge have the authority to deny entry to a reporter, to his courtroom? Obvious answer, “yes” Even more so, the president have power to limit access to the whitehouse as he sees fit. No person, INCLUDING REPORTERS have a constitutional right of access to the white house, to ask questions, or to hold onto government property. This should be a slam dunk

    MarkSmith in reply to stl. | November 14, 2018 at 1:49 pm

    Yep, right there with you. I have seen judges throw people out for wearing a hat in the courtroom. Chewing gum. Accosta is way over the line and knew better. Also, would Accosta acted differently if some male the size of a football player grab the mic. I doubt it. Let make this an issue of disrespecting a “woman” too. Dumb move by Fox. Remember the song Video killed the radio? Well Internet is killing TV and Print News.

    My first question to the judge would be to ask where in the law does it require you to act and dress for the court room. The guiding principles to this are the same as the press room. If anything the law suit restricts access to the government because it means that CNN now controls information and who gets it. Totally against 1st. Amend. which was about allowing all sides to free speech. Also, big difference between access to information and dissemination of information.

    RasMoyag in reply to stl. | November 14, 2018 at 2:13 pm

    Under what statute, precendent, administrative ruling, constitutional amendment does a judge have the right to deny a reporter or any other person access to a court room? The last time I looked at this it was a fundamental aspect of a democracy and the justice system that all persons can attend and that court cases are not held in camera.

      “In the United States, the Judiciary Act of 1789 conferred power on all courts of the United States “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.”

      Note the year. It goes back a while.

The government SHOULD win this TRO motion.


The key factor is that Acosta demonstrably was disruptive, refused to yield the floor, and blocked the intern.

Actually the key factor is that Acosta was the President’s guest at the White House, invited there entirely by the President’s grace and good will, and he wore that good will out by behaving as if he were there by some sort of right, and as if it were his mic.

If the Court imposes on the White House as to Acosta, where does the line get drawn?

The line should be drawn right there and then. The President should inform the judge that his order is ultra vires and he intends to ignore it. A judge has no more authority to tell Mr Trump whom he must invite into his home than he does to tell any of us the same thing.

It wasn’t until 1913 that any President held an offical press conference. (You can thank Woodrow Wilson *sarc.*) Before then the media had to hope to be lucky enough for the President to speak with them. (Access to the President was at the President discretion.) Why would a President wish to speak to anyone who consistently berated and belittled him. Let the White House go back to those days. And quit doing the media’s job for them.

    Trump himself has addressed this. They tried it, it didn’t work well for them politically. Trump benefits more from a high media presence. Of course the media derives its own benefits.

      Shadow5 in reply to JBourque. | November 14, 2018 at 2:51 pm

      What the media fail to see is that with cable access to these news conferences the American people get to see how petty and annoying reporters can be. The more they act as arms of the Democratic the more their credibility falls.

    amatuerwrangler in reply to Shadow5. | November 14, 2018 at 3:23 pm

    Set the press up with a tent out near the gate where they can buy coffee from a WH coffee machine (with the traditional paper cups, lumpy sugar and powdered fake cream — AND plastic stir-sticks) with CSPN streamed in — like CNN is pumped into airports. President Trump and Ms Saunders appear as needed to read statements as to issues deemed important at the time. The reporters get the information and are free, per 1A, to dispense it to the public as they please.

    The public is also free to eliminate the middle-man and watch CSPN. And they can evaluate for themselves how the reported material might differ from what the reporter was actually told.

Perhaps they should review Acosta’s background check. There is something in everyone’s life, if you look hard enough, that would make them a security risk who should not be in close proximity to POTUS. Maybe look at some high school parties and interview some people who went to school with him.

    Shadow5 in reply to userpen. | November 14, 2018 at 2:22 pm

    Your idea (while not without merit and a bit adolescent) is not as effective as the way PDJT handled the situation. Acosta was made a fool not a martyr.

I fully expect ISIS to take credit for Acosta being retribution for Trump’s actions in Syria and Iraq.

This doctored video crap is outing so many libs as stupid, partisan hack particularly CNN and WaPo. Neither seems to understand video compression and removal of frames (and audio) for making a .gif file.

It’s not exactly high quality video, so quite a few frames are skimmed to lower the file size. The audio is also removed as it also carries a large data load. #gifsplaining to a mainstream media company is pretty hilarious when you think about it.

    neanderthal in reply to healthguyfsu. | November 14, 2018 at 5:10 pm

    Very true. I’m sure CNN actually has a large number of employees who understand the basics of video conversion, editing, and compression. But I suspect none of them were asked to give an expert opinion, because they weren’t “important” enough.

    …but the claim of doctored footage fell upon fertile ground, millions of listeners who have been indoctrinated into thinking everything Trump is bad and everything CNN says is the Gospel truth. The *actual* truth will only touch a few compared to the millions that get fed CNN’s lies day after day after day…

Serious question: Does a judge have the authority to dictate to the president of the united states who he can and cannot allow into the white house?

Seriously, you can just look at the first two photos at the top of this page and clearly see a) Acosta pulling the microphone away from the intern reaching for it, b) Acosta pushing her arm down, however forcefully or not, and c) the intern being pulled off-balance towards Acosta as he protects his microphone from her.

I wouldn’t call it an assault, but he does contact her in the process of keeping her away from the microphone.

There are thousands of small town news outlets that would like to have just one hard pass to the White House like Jim Acosta had. If whining Jim thinks he’s entitled to one, so are they.

The saddest part of this media paeon to Acosta’s ego: Fox Newscorp Friend of the Court brief … in favor of CNN.

    MarkSmith in reply to Redneck Law. | November 14, 2018 at 9:54 pm

    Saw that, so Fox news think it is ok to treat people like crap because they work at the White House. This is totally wrong. They should be asking for Acosta to be fired instead. If I had been in that room I would have decked him for what he did. I guess the metro-sex males in the press core have no b….