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Acosta got his press pass back…

…but his media colleagues will pay the price.

Posted by    Sunday, November 18, 2018

Court ruling permits White House to promulgate press conduct and discipline rules, something the White House is eager to do.

On Friday, November 16, 2018, the federal District Court in D.C. granted a temporary restraining order compelling the White House to reinstate CNN’s Jim Acosta’s “hard pass,” that gives him privileged access to the White House for press briefings and events.

As described in our coverage of the decision, there is no written opinion or transcript as of now that can be reviewed to understand the precise parameters and reasoning of the judge. As of this writing, we only have media reports as to the judge’s stated reasons.

Based on those media reports, it appears that Acosta won on procedural grounds, that he was not afforded due process in the revocation of his hard pass. The judge stated that the ruling was narrow, and that it did not include a determination (yet) that Acosta’s First Amendment rights were violated.

Acosta exploited the lack of formal procedures and process to get back his pass. But that may come back to bite his colleagues.

While I didn’t expect the judge to grant the TRO, I predicted Acosta’s lawsuit risked taking bad facts and making bad law, Jim Acosta and his media enablers are on the verge of creating law that will damage journalism:

“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.” ….

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.

As even the NY Times acknowledges, under the TRO Ruling the White House can design policies and procedures to regulate the conduct and discipline of reporters granted access to the White House:

The ruling was a significant victory for CNN and Mr. Acosta, but Judge Kelly declined to say whether the denial of the White House press pass had amounted to a First Amendment issue.

“I want to emphasize the very limited nature of this ruling,” he said, saying that it was not meant to enshrine journalists’ right to access. “I have not determined that the First Amendment was violated here.”

The legal battle is expected to continue: Judge Kelly ruled only on the network’s emergency request for a temporary restoration of Mr. Acosta’s credentials. Hearings on other issues in the case are expected to resume next week.

Some lawyers said that, CNN’s initial victory aside, journalists who cover the president had to remain vigilant. The case underscored that the entree granted to the White House press corps, which has worked out of the West Wing for decades, relies on custom rather than any legal framework.

“This could backfire,” said William L. Youmans, a professor of media law at George Washington University. Mr. Acosta “gets his credential now, but it empowers the Trump administration to come up with conduct-based criteria.”

“A ‘rudeness’ or ‘aggressive behavior’ policy would have a huge chilling effect, and would be much more damaging to the whole system,” Dr. Youmans added. “If it lowers the bar for pulling credentials, it’s a recipe for a more tepid press.”

Trump has promised to do just that, Trump on CNN’s Jim Acosta: ‘If he misbehaves, we’ll throw him out’.

Read more here:

Attribution: Legal Insurrection




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