In essence, the President suggested that there are no procedural checks on his power over the press.
We’ve all seen (or heard about) the exchange last week between CNN’s Jim Acosta and the President of the United States of America—the exchange that led to the revocation of Acosta’s press pass. However, the more important scene is the one that followed.
Immediately after President Trump called Acosta the “enemy of the people” and directed him to sit down, the subsequent NBCNews reporter (who asked the President about stirring political tension among Americans) was also interrupted. Trump asked, “Are you trying to be him [pointing to Acosta],” to which the reporter answered in a deferential tone, “No, I’m just asking a question.” While it may be imperceptible at first glance, this exchange amounts to a subtle but unmistakable threat of unbridled discretion on the part of the President. In essence, the President suggested that there are no procedural checks on his power over the press.
In a decision granting a temporary restraining order against President Trump, Judge Kelly of the U.S. District Court for the District of Columbia rejected the President’s position. Judge Kelley vindicated Acosta’s claim that fair, regular procedures are essential to protect democracy—especially where free press rights are implicated. Judge Kelly found that the White House had violated Acosta’s due process rights under the Fifth Amendment to the U.S. Constitution by revoking his hard pass without providing appropriate notice and an opportunity to be heard before the revocation.But this raises a secondary question: how does due process relate to our understanding of the underlying First Amendment rights at issue?
We can approach that question by emphasizing the general importance of procedural protections in the First Amendment context. While many Americans may dislike Acosta, this case is not about a single reporter, that reporter’s press pass, or his network (CNN) being able to follow the President throughout his term in office. It’s about whether the Commander in Chief can impulsively sidestep procedural requirements in order to engage in censorship.
Viewed that way, this case comes down to the fact that “the history of American freedom,” as Justice Frankfurter once said “is in, no small measure, the history of procedure.” Malinksi v. New York, 324 U.S. 401, 414 (1945). In essence, freedom of speech—and thereby a healthy democracy—in large measure depends on certain procedures being followed. This is how we maintain an open marketplace of ideas. Procedures ensure that we do not simply allow for one set of powerful speakers to arbitrarily silence those asking important or even unpopular questions. As the Supreme Court taught in 1965, much relies on the “procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58 (1965). That’s why procedural requirements should be at their height whenever First Amendment concerns are involved.
This type of First Amendment solicitude is not limited to the Fifth Amendment. For instance, the Supreme Court has emphasized that where the First Amendment is implicated, Fourth Amendment requirements must be applied with “scrupulous exactitude.”
Further, in other contexts involving the press, procedural protections (including fair notice) are recognized as essential. To give one topical example, the Department of Justice’s guidelines require procedural safeguards before the Justice Department can seek to subpoena records of the news media. And pursuant to these guidelines, the government must try “alternative sources before considering issuing a subpoena to a member of the news media;” provide “reasonable and timely notice” of the request before issuance; pursue “[n]egotiations with the media . . . in all cases in which a subpoena to a member of the news media is contemplated;” and, typically, obtain sign-off by the Attorney General. Through fair process, we protect free speech.
Of course, this point bleeds into the deeper and more important question of defining the underlying First Amendment rights that make procedure so important. What, exactly, is the First Amendment right at stake in CNN’s suit against President Trump? Many would like to think that it comes down to constitutional protections for the press; are they correct?
This question is harder than it seems. The First Amendment claim in the complaint filed by CNN alleges that the government engaged in prohibited viewpoint discrimination by taking away Acosta’s right of access on grounds of personal animus. It does not allege a claim based on his rights as a member of the press. Yet, as many have argued (including Jameel Jaffer from the Knight Institute), the CNN suit is an important and necessary defense of press freedom. And that makes sense, you might think, since there is in fact a Press Clause in the First Amendment.
Here, common sense and legal precedent are in tension. As Sonja West has aptly explained in a series of articles, “the Supreme Court has long adopted a two-sided approach. On the one hand, the Court routinely speaks—often in quite eloquent terms—about the vital role the press plays in our democracy. Yet, on the other hand, it consistently refuses to recognize any unique First Amendment safeguards that would support the press in this work.” For instance, the Court has refused to recognize First Amendment defenses for reporters from government subpoenas.
Thus, while CNN’s arguments were based on First Amendment theories, they did not cite the Press Clause or its protections. Instead, they relied on claims of viewpoint discrimination.
Still, consistent with a widely shared understanding that the press plays a special role in preserving free speech, Acosta argued that the White House’s impetuous actions will chill speech by targeting the press. He observed, “I believe this was done to send a message to other White House correspondents that asking tough questions and filing critical reports of the administration will be punished. The President appeared to confirm this motive when he warned November 9th, 2018 that he might revoke the press credentials of other reporters too.” Acosta’s focus on press freedom was amplified in an amicus brief filed by the Reporters Committee for Freedom of the Press (where I previously worked). The Reporters Committee warned that First Amendment rights are especially important to reaffirm because democracy is waning, as America’s reporters are derided and dissuaded from speaking.
To give this point legal heft, Acosta’s Complaint properly relied on the DC Circuit decision in Sherrill v. Knight, which emphasizes that due process is especially important where First Amendment protections of the press are at issue. In Sherrill, the Secret Service denied The Nation’s Washington correspondent a press pass without offering any satisfactory explanation. The DC Circuit concluded that the White House could not deny press credentials “[g]iven these important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists.” The court continued, “Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information.” This is how concerns about freedom of the press often manifest in First Amendment opinions: in rhetoric surrounding claims based on other theories.
There’s no denying that Judge Kelly’s ruling for CNN is a victory. But if we wish to protect democracy, it would be helpful for judges to more clearly articulate protections under the Press Clause. While procedure is important, it stands on the legs of First Amendment rights, including First Amendment safeguards for a free press. And as the President openly espouses enmity against reporters, it is more important than ever to articulate constitutional safeguards for the fourth estate.
Originally published by Take Care under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license.