CNN is going to win the First Amendment lawsuit it filed Tuesday against President Donald Trump’s White House for taking away reporter Jim Acosta’s press pass. And the sad truth is that Trump won’t mind at all.
As the president has shown repeatedly, he doesn’t especially care if, after he violates the Constitution, the courts reverse his action. Instead of understanding judicial repudiation as a defeat, Trump sees the whole episode as a victory.
Worse still, taken in this political context, he’s right. The Constitution is working. But Trump has found a way to subvert it anyhow.
Last week, the White House revoked the pass that allowed Acosta, CNN’s chief White House correspondent, to work in and around the building unescorted. Press secretary Sarah Huckabee Sanders announced that the administration had done so because Acosta had placed his hands on an aide when she tried to take a microphone from him during a news conference. Acosta and the president had been clashing over a question about immigration and the midterm campaign.
The law governing the Acosta case, filed in Federal District Court on behalf of the reporter and the network, is relatively straightforward. The president doesn’t have any constitutional obligation to open the White House to the press. He can choose which reporters he would like to meet with privately, and he can prefer certain networks, like Fox News, for his own appearances or for exclusive interviews.
Once the White House has opened itself up to all accredited reporters with press passes, however, the government has created what is in effect a forum for free speech in interaction with the president. It’s black letter law that, in such a “limited-purpose public forum,” the government isn’t allowed to discriminate based on a speaker’s viewpoint.
That’s exactly what’s happened to Acosta. Trump made clear during the news conference that he doesn’t like the reporter, calling him a “rude, terrible person” and “the enemy of the people.” Trump doesn’t like Acosta’s viewpoint, so Acosta was banned from using White House press facilities.
There’s a judicial precedent on this point. In a 1977 case, Sherrill v. Knight, the U.S. Court of Appeals for the D.C. Circuit, whose jurisdiction includes the White House, held that the First Amendment applies to reporters seeking press passes. And it specifically concluded that the White House couldn’t deny a press pass to a reporter without explaining what the criterion was and telling him how he violated that criterion.
At the time, the doctrine of the limited public forum wasn’t fully in place. But the D.C. Circuit opinion effectively foreshadowed the same idea. The court said it was “presented with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists.”
The court explained: “White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the First Amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons.”
That’s a pretty clear statement of the law. It applies even though the issue never went to the Supreme Court — because D.C. Circuit precedent is the law in the District of Columbia.
Trump has essentially no credible answer to CNN’s legal claim. About the most White House could do would be to say that Acosta represents a security threat. The problem with this argument isn’t only that, as the video of the encounter clearly shows, Acosta did nothing but hold on to the microphone when the White House intern tried to take away. It’s that Trump himself, in his own words, told Acosta that he was a terrible person — and later warned that other reporters could be excluded next.
An ordinary president, or really any ordinary litigant, wouldn’t be so quick to sink his case with his own words. But Trump doesn’t mind losing in court. His travel ban was repeatedly struck down before the U.S. Supreme Court upheld the watered-down third version. Trump’s plan to pull funding from sanctuary cities was blocked by the courts. As far as it is possible to tell, he minded not at all.
That’s because Trump wanted to send a message. In the case of CNN and the rest of the press, the message is that they should be nicer to him. He also wanted to send a message to his supporters that he is tough on the news media, whom he condemns as “enemies of the people.”
Trump has now sent those messages. Headlines down the road that explain his defeat in court and the reinstatement of Acosta will cost him less than he has gained by the messages sent now.
The resulting strange situation is that while the courts are doing their job of protecting the Constitution and blocking the president from violating it, Trump is nevertheless managing to chip away at the freedom of the press — and the rule of law more generally.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
