At Trump's recent press conference held at the White House, there was a dust-up between Jim Acosta, a correspondent for CNN, and a young White House female intern. The intern came to Acosta and asked him to give her the microphone so that she could pass it to the next person Trump called on. He refused, and there was a mild tussle for the microphone. The tussle ended when Trump insisted that the correspondent surrender the microphone. Trump made a forceful expression of his displeasure with Acosta's behavior, and he promptly revoked his "hard pass," the document that permits his entry to the White House.
Thereupon, CNN and Acosta filed suit in federal court demanding that Trump restore Acosta's pass. Judge Thomas Kelly, ironically a Trump appointee, issued a temporary restraining order ordering just that, and Trump complied.
Now: Although I have read the Constitution numerous times, I have not bothered to read it again in the last hour, nor am I a constitutional scholar. However, some say that the Constitution was written by farmers for farmers, and I judge myself to be as smart as at least some farmers I know, so I have the audacity to critique the opinion of the Court.
In fact, I herewith dissent. The plaintiff's central argument is that denying Acosta access to the White House is a violation of his First Amendment rights, and I will make that the focus of my comments. Here are the salient points of their First Amendment argument, quoted verbatim:
- Plaintiffs' access to the White House, their coverage of the November 7, 2018 press conference, and Acosta's questions to President Trump during that conference are and were all protected under the First Amendment to the United States Constitution.
- Defendants have deprived Plaintiffs of their right to access the White House grounds by revoking Acosta's White House credentials.
- Without those credentials, Acosta cannot access the White House and cannot effectively serve as a White House correspondent, thus depriving Plaintiff CNN of its chief White House correspondent. I think it well that we refresh our memories by revisiting that amendment. I quote it in full:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
From these 45 words I extract these main points: "Congress shall make no law . . . abridging the freedom of the press"[.]
In other words, the Government may not block publication of anything (with exceedingly rare exceptions such as defense secrets. But the amendment does not mandate that the President aid the media in their acquisition of information.
Trusting to memory, it seems that the Constitution tells the President to occasionally give to the Congress information concerning the State of the Union. Nothing more. He is not required to ever hold a press conference. And, if he does decide to hold one, there is no Constitutional prescription for the formulation of his guest list. He is not required to be "fair." He may pick and choose as he pleases.
Now look again at CNN's complaint as listed in 1 through 3, above. They accuse the President of failing to aid them in doing their job by allowing their correspondent at his briefing, entertaining his questions, and allowing him on the White House grounds. They further say that without this help from the President their man Mr. Acosta cannot do the job assigned him by CNN.
None of this can remotely be construed to be action blocking CNN's right to publish whatever information they might have in their possession, only that the President has failed to supply them the help they expected. Nor, to reiterate the point, does it matter if he has aided other correspondents unequally with his aid to them.
Judge Kelly is mistaken in ruling that Acosta's privileges must be restored. I believe that President Trump is mistaken also. Evidently, he does not plan to appeal this ruling, but instead to formulate a code of conduct for the behavior of correspondents on the White House property. This he would use as a yardstick against which to judge errant correspondents such as Mr. Acosta, thus affording them "due process" and curing the fault Judge Kelly found in removing Acosta.
This is not at all a good idea. It will surely require the creation of some sort of half-ass judicial panel to review an accused's record. And it's safe to assume the panel's actions will be subject to adjudication by a court. A judicial wrangle over what amounts to the President's etiquette is one of the least needed things I can think of. I wish our president would rethink his options.