Acosta decision

Acosta decision could make it easier for White House to kick reporters out

The decision by U.S. District Court Judge Timothy Kelly in Cable News Network v. Donald J. Trump ordering the White House to restore the press pass of reporter Jim Acosta has been hailed as a victory not only for CNN but for the entire press and the cause of journalism. But the end result of Kelly’s ruling, and of the CNN lawsuit, might not be happy for reporters and the news organizations that employ them.

The transcript of the Nov. 16 court session in which Kelly delivered his oral ruling was released in group of court papers on Monday. Kelly declared that the White House could not eject Acosta without first providing him due process — specifically, notice of the revocation of his press pass, a chance for Acosta to respond, and a written decision.

In short, the judge said to the White House: You can’t throw out a reporter without going through a process. But if you go through a process — which you, the White House, can design — then you can throw the reporter out. In the end, it could be that Kelly’s ruling will make it easier for the White House to oust reporters in the future — and to make the decision stick.

Throughout the court session, Kelly referred to the only real precedent in the Acosta matter, a 1977 case from the U.S. Circuit Court of Appeals called Sherrill v. Knight. In that case, the court ruled that the White House — specifically the Secret Service — could not deny a press pass to a “bona fide journalist” without due process. The court defined due process as “procedures whereby an applicant is given notice of the evidence upon which the Secret Service proposes to base its denial, [and] the journalist is afforded an opportunity to rebut or explain this evidence, and the Secret Service issues a final written decision specifying the reasons for its refusal to grant a press pass.”

In court, Kelly told lawyers for CNN and the government that he would use Sherrill as a guide in the Acosta matter. In his view, the due process arrangement outlined in Sherrill should apply to the Trump White House’s treatment of Acosta or any other White House reporter. “The court in Sherrill held that this process must include notice, an opportunity to rebut the government’s reasons, and a written decision,” Kelly said.

The judge’s clear implication was that if the White House takes those actions, if it jumps through those hoops in the future, it can expel a reporter without raising due process concerns. …

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