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Jim Acosta and his media enablers are on the verge of creating law that will damage journalism

Jim Acosta and his media enablers are on the verge of creating law that will damage journalism

CNN promoted Acosta’s antics for ratings, and other media were largely silent. Now the press as a whole may pay the legal price if Trump prevails in the court battle over Acosta’s press pass.

“Bad facts make bad law” is a common saying. What that means is that bad facts in a specific case can create legal precedent that is damaging to others, not just the bad actor in the case.

Nowhere is that more clear than in the pending motion by Jim Acosta and CNN, publicly supported by over a dozen major media outlets, requesting a Temporary Restraining Order and Preliminary Injunction forcing the White House to restore Acosta’s press “hard pass.” The court is scheduled to rule Friday, November 16, at 10 a.m.

For background, including discussion of the fact, law and hearing argument, see these prior posts:

The hard pass, according to Acosta’s Complaint, would “allow him regular and unescorted access to the White House and White House briefings.” That is a privileged status compared to other journalists, usually with smaller publications, who have to apply for day passes or wait in line.

The government has opposed the motion on the grounds, among others, that the White House has wide discretion in who it allows into the White House, including journalists, and even could refuse to allow any journalists into the White House. That position, which likely is correct, has generated shock and awe:

The government further argues that on the facts here, it was well within its discretion since Acosta disrupted a press conference by refusing to yield the floor and the microphone. Acosta also physically prevented an intern from taking back the microphone, as demonstrated clearly by video, but the government lawyers apparently argued that their case did not depend on the physical interaction between Acosta and the intern. (That non-position by the government was a mistake, in my view.)

Prior to this case, there was not a lot of law on the subject of White House power to exclude individual reporters.

The one case seemingly on point and relied upon by Acosta and CNN, Sherrill v. Knight, 69 F.2d 124 (D.C. Cir. 1977), is distinguishable because it involved a reporter from the far left-wing Nation magazine who the White House granted a press pass, but who was denied by the Secret Service based on security considerations. The Secret Service would not reveal to the reporter why he had not passed the security screening, and there was no process for him to contest it. The court did not order that the reporter have access, but did require that there be a due process for such denials. Thus, the Sherrill case did not involve a reporter who the White House did not want admitted onto the property.

In the absence of clear law, the president and press have established certain norms of conduct. The White House gets to decide who gets hard passes, but usually gives such passes to numerous reporters for each of the major networks and newspapers without singling people out for denial.

A reciprocal norm is that reporters who get hard passes, while they may ask difficult and contentious questions, do not abuse the privileged access status of hard passes by disrupting press conferences or other events.

Acosta has pushed these norms to the extreme ever since Trump took office. He is a showboater who makes everything about him. He shouts questions in very dramatic fashion. He offers commentary and criticism, as if he were a political opponent and the press conference were a debate.

Acosta’s conduct prior to November 7 was the subject of much criticism from Trump and Sarah Sanders, among others, but he never lost his “hard pass” before. All the while, CNN promoted Acosta’s antics for ratings and clicks, and other media were largely silent as they witnessed his aggressive self-aggrandizing performances during press conferences and press briefings.

On November 7, however, Acosta crossed a line by refusing to yield the floor and give back the microphone despite Trump demanding he do so. It was only then, after Acosta tried to hijack the press conference and physically refused to yield the microphone, that the White House revoked his “hard pass.”

The breach of norms by Acosta was significant, and could constitute the bad facts that establish in law a president’s ability to control press events and access to the White House. A court should be very hesitant to micro-manage not only White House access, but how the White House handles press events at the White House.

If Trump prevails, it will have implications far beyond Jim Acosta and CNN. It would establish presidential legal authority in an area that pre-Acosta was left mostly to norms of behavior. By contrast, if Trump loses, he may have to allow Acosta into press events, but he doesn’t have to call on him. So the stakes are very high for the press, and relatively low for Trump.

Acosta’s media enablers at CNN and elsewhere created this situation, and they will have to live with the legal consequences.


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“…they will have to live with the legal consequences.”

Do leftists do that? Perhaps selectively.

Good. The press is the enemy.

    Journolists who believe freedom of the press (i.e. publication) is exclusively a corporate right are the enemy. Journolists who create a hostile environment, and hit a female employee enforcing shared time, are the enemy of the people and journalists.

      oldgoat36 in reply to n.n. | November 15, 2018 at 6:12 pm

      The sad part about all this is they are defending a boorish individual who is unworthy of anything but their contempt.

      This type of thing is exactly why I do not respect Unions in general as well. Unions always have to spend time and effort to protect the worst of their membership. Those who do their work poorly, don’t show up on time, and so on, and the Unions defend them and force companies to keep on undesirable workers.

      In this case, the journalists, (which is a large part of the problem, they gave themselves a newer title which they think gave them special status) have banded together to defend a showboating moron who treats every briefing and Q&A with the President as if it’s his show. Acosta’s antics have to cost another reporter’s question as there is an allotted time, and he sermonizes before each question, and it’s always multiple questions he at least tries to ask.

      He ignores the answers he gets.

      There are times when contentious questions should be asked, but not every time. And poor behavior might be excused once or twice, but if allowed to go on it becomes accepted (in some eyes) as normal behavior.

      I hope the President, should he lose – because you never know how left field a judge could rule, shuts down all briefings for an undisclosed period of time. Any communication from the WH will be via the Press Secretary giving written accounts to all reporters, no questions allowed.

      Acosta is one of many who make the news about them. They aren’t even journalists, they are just mouthpieces who are narcissists or egotists who think this is all about them. He gives others a bad name. You would think the other reporters in these briefings would be pissed at him, not joining him and crying about rights they have invented for themselves.

      Trump should win on the basis of law and his powers as the President, but judges seems to think they are higher authorities than the President.

      Acosta is the enemy of the people. He is also the enemy of the other members of the media. It’s too bad the media has hate ruling them so they are blind to their own failings.

      Elzorro in reply to n.n. | November 16, 2018 at 9:10 am

      It would be neat to put them in cages with a name of their speices.

Colonel Travis | November 15, 2018 at 4:18 pm

I never thought I would say I am embarrassed to have once been a journalist. But I am. These people are a disgrace.

Leftists never live with the consequences. I recall David Gregory waving around a thirty round AR-15 mag in a D.C. studio for effect.

Totally illegal. If you were an Army veteran living in VA, and for some reason went to D.C. with a gym bag that doubles as a range bag, and were found with that same magazine in a side pocket you’d be prosecuted to the fullest extent of the law. But not David Gregory. He got a pass.

When Katie Kouric was making her fraudulent “under the gun” piece of fiction posing as a documentary two of her producers crossed state lines to make gun purchases just to show how easy it was.

And violated multiple federal and state laws. Last I checked they suffered no consequences.

See “the Clintons” for further information about not having to live with any consequences. “Consequences,” Hillary Clinton cackles, “What are those?”

    notamemberofanyorganizedpolicital in reply to Arminius. | November 15, 2018 at 10:39 pm

    RE: “…David Gregory waving around a thirty round AR-15 mag in a D.C. studio for effect. Totally illegal.”

    One of the perks of being a man friend of Obama?

By contrast, if Trump loses, he may have to allow Acosta into press events, but he doesn’t have to call on him.

That wouldn’t inhibit Acosta from yelling his questions and being disruptive in general, unless the meddling Court allows the White House some mechanism to maintain order. The best way is obviously to keep him out entirely, but if that’s precluded, they’ll need something else. It would be rash to expect Acosta to suddenly start behaving himself just because he’s being ignored.

    The Packetman in reply to tom_swift. | November 15, 2018 at 4:55 pm

    This one’s easy. In the event that CNN wins, Pres Trump can simply stop having the daily news brief.

    And remind everyone it’s Acosta’s fault …

    Really, Trump wouldn’t have to call on him? Today, he wouldn’t. But, once you let the nose into the tent, the entire camel shall surely follow. Conspiring to deny Jim Acosta his 1st amendment press freedoms at White House briefings? It’s easy to see a court following up and saying this is unconstitutional, too.

      oldgoat36 in reply to JBourque. | November 15, 2018 at 6:19 pm

      Acosta’s first amendment rights are not being impinged in the least. He isn’t being thrown in jail, isn’t being shut up, he is just not allowed, right now anyway, to attend at the WH.

      Despite the Bull Crap being tossed, this isn’t a First Amendment issue at all. This is decorum and self control, which Acosta lacks in spades. This is a case of personal responsibility, which Acosta and CNN seem to think does not apply to them.

      This is a case where the media seems to think they are a special class of citizen which goes against American principles.

        notamemberofanyorganizedpolicital in reply to oldgoat36. | November 15, 2018 at 10:50 pm


        It’s exactly as if you invited the local press/journalists to cover your grandchild’s wedding…

        ….and upon arrival the “press/journalists” run shrieking to the middle of the reception room, jump up on the dining table

        …..and take a big crap on the wedding cake…….

        Yelp, sounds like Acosta to me too.

Two comments. #1, I’ve seen people use the DMV standard in citing the Knight case, that the DMV cannot discriminate against you. Yet, I’ve never heard of a driver’s license issued to Americans that cannot be suspended for misbehavior after you receive it. (The WH says such misbehavior occurred. CNN says this is a foul lie.)

#2, what about the Infowars-like groups of the world? “Legitimate” journalists blew their stacks when the “wrong” right-leaning groups began receiving passes. If it is not allowable for the White House to decide what is a real news organization… well, who does, then? The WH press association? The courts? Try and show me a result that is not absurd.

    iowan2 in reply to JBourque. | November 15, 2018 at 11:43 pm

    If it is not allowable for the White House to decide what is a real news organization… well, who does, then?

    There is no such thing as ‘news organization’. If the govt defines it, the govt controls it, by that definition.
    The 1st amendment prevents the govt from stopping the dissemination of information, not the gathering of that information. The constitution protects the means (press) not the person, for every person is a gatherer of facts, the tricky part is wide spread public exposure of that information

Just like a drill sergeant that punishes the entire squad instead of the one sad sack recruit, Trump can simply stop talking to the press and shut down the WH daily briefing. Life would go on and the average American would not know it even happened. But that’s not going to happen because the press needs Trump to perform for them. I think it’s all very amusing and pine for the days when a real journalist asked questions of political leaders. What we have now is purely entertainment.

    notamemberofanyorganizedpolicital in reply to technerd. | November 15, 2018 at 10:52 pm

    Better yet, he can make them stand in a sound proof, unbreakable, glass cell.

    There they can mime away and do whatever they want without the rest of U.S. having to hear them or see them.

Face-to-face daily press briefings need to go the way of the dinosaur. They have outlived their usefulness as a tool of communication and can easily be replaced by an electronic realtime briefing with followup Q&As that relegate the media to again reporting the news rather than enabling them to become the news. They’ll adapt.

    I really don’t understand why this has gone this far. The President is under no obligation to speak with the press. Ever. If the media really feels these face-to-face press briefings are important, terms can be negotiated. Otherwise, the WH can simply release press releases and respond to questions presented in another way. Tweeting works pretty well these days.

    At this point, I don’t see how the public interest is served by staging these obnoxious drama queen episodes. Trump is doing well enough as it is keeping us informed by speaking directly to us via his tweets. Good enough for me.

    If the media needs more clarification, they could ask us to translate it for them from plain English to their familiar jabberwocky idiom. Should be fun. We could present dramatic emotional performances with lots of shouting, hair-pulling, throwing objects around and name-calling. Think of the ratings.

To think that all of this unpleasantness could have been avoided if Acosta as issued even the lamest non-apology apology to the female White House intern.

“By contrast, if Trump loses, he may have to allow Acosta into press events, but he doesn’t have to call on him. So the stakes are very high for the press, and relatively low for Trump.”

Actually, I recommend that Trump pulls everyone’s hard passes and let them fight for access on a daily basis. If the other journalist don’t like it, say hey talk to your buddy Jim. He caused this.

    Then he has to deal with the “White House Press Corps”,which has ruled for 60 years. It’s just another bloody pain in the arse he has to deal with. They would sue, if lost appeal blah, blah, blah. They hate him, straight up. Remember the meme-They hate you, I’m just in the way.

I see the door opening — since I publish on WordPress and Disqus, both of which have a larger audience than CNN, I too should have hard pass press credentials.

Posted this way late on the last CNN thread. My recommendation

Memo WH counsel to all employees of all Execuitive Branches:
Until the CNN lawsuit is resolved, All communication with CNN shall be by counsel ONLY. Do not discuss ANYTHING with anyone known oe suspected to be an employee or represenaptative of CNN. This office is making a determination of whether FOX or other amicus participants will be covered under this directive. This memo I has been approved by office of the POTUS.

Accosta and most of his cohorts in that press room are ACTIVISTS pushing leftist narratives and propaganda.

They aren’t “journalists”.

Again, TOO MUCH deference to the judiciary. POTUS is a co-equal branch. If POTUS told SCOTUS what their rules would be on reporters and press conferences, there’d be hell to pay. Goose, meet gander.

POTUS can do whatever the heck he wants on this property, and SCOTUS should show some humility that they aren’t our tinpot gods to answer EVERY question on earth, other than what color socks I should wear.

I’m long finished with SCOTUS. Plyler v. Doe sticks in my throat, as do a dozen other such cases. Black-cotton polyester blends don’t mean a damn thing to me.

So, POTUS, kick them all out, kick some of them out, let them take turns in the Lincoln bedroom for all I care…. Just don’t let Acosta run his own show at your expense. Matter of fact, I’d ban Acosta for the rest of your presidency and let the peacock’s market value plummet——-

    SCOTUS does change. Maybe for the better now? I’d like to think that the horrific display surrounding Justice Kavanaugh was worth it… For his sake, and for ours.

I should think Trump’s lawyers would point out to the judge that he/she certainly would not put up with the same kind of conduct in his/her courtroom, and would undoubtedly have any person removed and banned who disrupted a courtroom the way Dim Jim did the press conference.

Does the WH have to allow cameras at the briefings? I doubt that Acosta would perform with no live face time. Or perhaps the solution is to have all press briefings be via written hand outs and no questions.

    They actually tried to Skype in the beginning of his tenure to allow smaller news organizations to participate. I don’t know what happened to that. It was a great idea not brought to fruition.

      Close The Fed in reply to MNCPO. | November 15, 2018 at 9:20 pm

      Dear MNCPO,
      You’re right, it was great. WHAT did happen to that??

        notamemberofanyorganizedpolicital in reply to Close The Fed. | November 15, 2018 at 11:01 pm

        I suspect the Silicon Valley Bullies (Big Tech) made so many “technical difficulties” for the smaller news organizations, that they just gave up.

I’m still confused as to why any outside entity has the authority to force the president to admit to his home and office one whom he wishes to stay away

    DieJustAsHappy in reply to MarkS. | November 15, 2018 at 8:52 pm

    This might be helpful: “What’s Really Behind the Jim Acosta ‘Controversy’?” Link:

    Note, especially, what is said about the White House Correspondents’ Association.

      Close The Fed in reply to DieJustAsHappy. | November 15, 2018 at 9:26 pm

      From Die Just As Happy’s link:

      Look no further than the WHCA — the White House Correspondents’ Association — the same folks who give you that self-congratulatory annual correspondents’ dinner known as the “nerd prom.” From Wikipedia:

      The WHCA operates independently of the White House. Among the more notable issues handled by the WHCA are the credentialing process, access to the President and physical conditions in the White House press briefing rooms.

      In other words, they determine who gets to sit in that room and where. Naturally, when the White House usurped their prerogatives and banned Acosta, they were irate, as any professional organization, acting in essence as a trade union, would be. Only it’s not the working class they are helping or anything close. It’s those big media conglomerates and their over-paid minions. What the WHCA is doing is of no value to the American public at large. Consciously or not, they are working to preserve a defunct and now reactionary system that does just the reverse, that preserves the status quo and the spoon-feeding of information and opinion to the largely unwitting masses.

        The WH response to this seems muted in a weird way. I wonder if this is a rope-a-dope scenario where the WH is handing the press rope to hang themselves.

        Everyone who is sane will understand when Trump makes changes to how it’s done, as opposed to the reaction that would have occurred prior to this.

Or even more fun, President Trump could say he was going to answer questions from reporters……in written form. They have to submit the questions they would like to ask and PDJT can then sit in his office in front of a tv camera, read the questions he’s chosen and answer them.
The result would be acostaDAstreet writing for ages on end with no reply in sight from PDJT.
Mostly though I’m hoping the judge tells ascostDAstreet to go eff himself.

President Trump should only answer written questions at HIS earliest convenience
End of story

Maybe Trump should rename the press briefings” Jeopardy” so the press can not grandstand and are forced to answer in the form of a question.

This all boils down to the reporter trade convincing themselves and everyone around them — including, apparently, Trump and his lawyers — that “Freedom of the press” refers to them, and therefore that they have a quasi-official role in our system of government as one of the constitutional checks on the “three estates” (a term that refers to the constitution of pre-revolutionary France; we only have one estate, so they can’t be a fourth).

I say including Trump and his lawyers because they seem to concede CNN and Fox’s claim that they must provide some access to all the networks, they just don’t think it has to be to whomever each network nominates.

Just a suspicion- but it seems that if the judge had any intention of ruling for Acosta he would have issued a temporary injunction. Possibly he’s trying to figure out a way to tell him to go to h— without using those exact words.

    notamemberofanyorganizedpolicital in reply to gospace. | November 15, 2018 at 10:55 pm

    Immediate arrest of Acosta for “disturbing the peace” would be a good judicial response.

There’s an old phrase, “it may be legal but it ain’t right” that I feel fits this situation well. CNN and Acosta may prevail in the courts but he is still a rude jerk. CNN should have the integrity and professionalism to pull Acosta from the briefing themselves because of his behavior. It appears that integrity, honor and professionalism are no longer a part of their culture, and everyone loses.

NAL. Question. The press has constitutional protection, not constitutional license.
The President allows any person in the White House at his pleasure. I can see no judicial power to force the President to allow specific named individual access to the building.

Speaking of an overreaching haughty presumptuous arrogant condescending Judiciary, let’s not forget that some judge ruled POTUS had to allow every freak of nature on his Twitter feed.

Just another day in our judicial oligarchy.

Of the tens of thousands of journalists in the US, those allowed into the WH are privileged. Privilege is special permission, and permission can be withheld or withdrawn. This is not a 1st Amendment issue. Statistically speaking, the percentage of journalists who have access to the WH is effectively zero, and this has never been considered an infringement upon the rights of tens of thousands of journalists because it does not hinder them from publishing what they will, and this is all the First Amendment guarantees to them – freedom of the press, that is, to publish.

The very fact that some reporters have WH access and others do not should be sufficient to demonstrate that there is no “right to WH access.” Otherwise a stadium would have to serve as the venue for WH news conferences in order to accommodate all the journalists who might wish to exercise their “right” to attend.

Just as driving a car is a privilege, the ability to be allowed into a press conference is a privilege and not a right. If attending a press conference in the White House was a right, then why or how could anyone be excluded? It would seem obvious that just as we have a right to determine who can or cannot come into our own homes, it should be Trump’s right to determine who can of cannot enter the White House to attend the press conferences.
Should Acosta and CNN win this lawsuit, think of the consequences. At the very least Acosta would be emboldened to the point where his obnoxious behavior would become far worse than anything seen to data because he would then know he was untouchable and we all know that Acosta is all about self promotion. Even worse would be the numbers of journalist wannabes who would all demand access to the White House briefings as well. It gets worse from there.
So where does this all end? It simply must end with Trump and the White House having the ability to allow only those they think should be allowed into the White House. Additionally, reporters are no different than you or I and they must be held accountable for their behavior and must face the consequences for their bad behavior. It seems this idea is clearly understood by everyone other than criminals and Democrats (or do I repeat myself?).

SCOTUS restricts protesters to an area a block away from the building. That is a restriction on an enumerated right. That seems fine. If this judge overturns the White House, President Trump should overrule that restriction and get the door bangers back on the front steps. As someone else mentioned, The judiciary is not superior to the other two branches of Govt.

For decades the media has called itself the 4th estate. A self- aggrandizing title that claims a place as a coequal branch of the government. Likewise the claim to be the voice of the people. (Like many meglomaniacal entities from history.) While I applaud our founders for their foresight in creating the Bill of Rights, I can only wish the courts would apply the same scrutiny to the “free press” as it does to the free exercise clause and the Second Amendment.

Judge Timothy Kelly was appointed by President Trump and then confirmed Sept. 5 2017. He presided in English v. Trump, and ruled for the President. Glad to see that.

The special role of “the press” is no longer appropriate. We all have a press, an internet connection. There’s no reason Jim Acosta should have more free speech rights within the White House than I do, and no reason his questions are any better than mine — in fact obviously they’re worse.

The First Amendment recognizes “freedom of speech” and “freedom of the press” but the latter should simply be subsumed now as freedom of speech. The WH does not have to hold press briefings. If it chooses to do so, it should be much more diverse in who it invites in. Draw names at random from some large list, or WH visitors / tourists of the day, for example.

There is no reason at all the WH or the public should be burdened with Jim Acosta day after day.

This ruling was based on Acosta’s personal free speech rights, not freedom of the press.

Jim Acosta is at work while disrupting these press briefings. He should have the same free speech rights in that context that I do when I am at my employer’s office.

None. He has no personal free speech rights at that moment, other than what CNN permits him to have and what the White House permits in their building.