Ethics Observations On The CNN/Acosta/Press Pass Ruling

From the Washington Post this morning:

Judge Timothy J. Kelly granted CNN’s motion for a temporary restraining order that will prevent the administration from keeping Acosta off White House grounds. The White House revoked the reporter’s press pass last week after a heated exchange between him and President Trump and a brief altercation with a press aide at a news conference. Acosta, CNN’s chief White House correspondent, is the first reporter with a so-called hard pass to be banned. CNN sued President Trump and other White House officials on Tuesday over the revocation. Kelly’s ruling was the first legal skirmish in that lawsuit. It has the immediate effect of sending Acosta back to the White House, pending further arguments and a possible trial. The litigation is in its early stages, and a trial could be months in the future.

Observations:

  • The ruling is a surprise. For me, it calls to mind once again my favorite Clarence Darrow quote, that “In order for there to be enough liberty, it is necessary that there be too much.” Apparently the judge, as courts have in other First Amendment cases, decided to leave a wide margin of safety around a constitutional right rather than interpret it narrowly, even reasonably narrowly.

I understand and sympathize with that instinct, and perhaps it is the right one.

  • Judge Kelly’s opinion  insisted that there be some basic procedural protections, requiring the White House to state clearly the grounds for revoking the clearance.  The Court did not find an express  violation of the First Amendment and Acosta might still be barred from the White House following appropriate due process.  Kelly said his ruling was “limited” and  temporary until a more detailed explanation and sufficient notice by the White House was established. (Not surprisingly, the White House viewed a tweet as notice enough.)
  • So a vague, traditional but unstated standard of not acting like an entitled jackass during a press conference and debating the President rather than asking questions while refusing to yield the floor is not, absent written standards and procedures, enough to get an unprofessional jerk like Jim Acosta banned. Got it.  It would be nice if previously acknowledged standards of basic respect for the office and the relative roles of the professionals involved were enough to avoid this kind of controversy, but apparently not.

Reflect on this episode the next time CNN or a pundit fusses about President Trump “defying established norms.”

  • Professor Turley writes: “Once again, I fail to see why this Administration just stumbles into these fights and undermines its own case by failing to lay a proper foundation. In the end, the court indicated that [the White House] would bear a burden under the first amendment in excluding individual journalists. It is difficult to predict how the court would rule on a proper record since the White House failed to create one – much as it did in the first rendition of the travel ban.” Oh, I can see why this keeps happening, and I bet the professor can too. That’s how Trump rolls, and so his administration rolls that way too. He doesn’t do “process” or “foundation” unless someone forces him to.

Yes, it’s incompetent, and yes, it’s infuriating, and no, it will never, ever change. “Fish gotta swim, birds gotta fly…”

  • Also from Turley: “[T]his could be an example of a bad case making bad law if it goes to the merits. On the media side, a ruling against CNN could radically curtail the rights of journalists vis-vis the White House. Conversely, a ruling against the White House could significantly curtail the power to control access and conduct in the White House. Given those dangers, this would be a good stage to simply resolve the case with a stern warning and resumption of access for Acosta.”

I presume he means a stern warning to its hack employee from CNN. Fat chance. As long as the network encourages and endorses Acosta’s anti-Trump grandstanding, his incivility and misconduct will continue.

  • Kelly is one of those federal judges appointed by President Trump who, we have been told, will just rubber-stamp his fascist policies until we are all goose-stepping along.

27 thoughts on “Ethics Observations On The CNN/Acosta/Press Pass Ruling

  1. Are there any clearly defined standards of behavior in a courtroom? It seems to me that judges can set arbitrary lines for acceptable behavior.

      • There is an interesting piece in Conservative Review regarding giving the press access to courtrooms and judges chambers to be able to report on rulings and interrogate tbe judges who make these rulings.

        I get te concept of Judicial review but it seems we have juducial supremacy among the 3 branches.

      • My point exactly. Had Accosta pushed his luck in the courtroom he could have been cited for contempt. The problem I have is that a judge, when acosted by an attorney in court whereby the attorney keeps pressing the judge and not accepting the answer or decision given has greater power to promote decorum through criminal sanction than a president does with a civil remedy.

  2. So, when does CNN or any of its journalists cross the line to being able to be barred? They are already perilously close to the line of advocating for the overthrow of a duly elected President. How much more of an ally of the resistance do they get to become before they are ruled too unruly? Why not let ISIS establish its own network in the US and demand White House access?

    Where is the line?

    What else will future resistance fighters / journalists be allowed to do with impunity?

    Get your popcorn early. Future press conferences are going to become a bigger circus than ever before.

  3. Apparently there was some 40 year old case that was referenced for this narrow ruling. I think it is intellectually dishonest for Acosta’s lawyers to argue this as a 1st amendment issue, because that was not the offensive act that culminated in the revocation. It is just an abuse of free speech to claim so, basically giving Acosta the right to take a crap in front of the president, as long as he is asking questions while doing so. You might say, what about public indecency, and they”l say don’t sweat the small stuff, we’re taking about the freedom of the press here. If all CNN journalists were banned, that would be a free speech issue. Banning one guy for being a jerk all the time is showing professionalism. Also, if Obama revoked a Fox journalist for behaving like Jim Acosta, we would have 2 weeks of coverage about how he is a wise sage, a man that transcends our era, and how we should really have a constitutional amendment banning Fox News. I ain’t saying, but I’m just saying.

  4. It would be … let’s just say interesting… if Trump pulled an Andrew Jackson and ignored the court decision. I half expect him to do that, under the theory that the judicial branch has no authority over how the executive branch handles itself as long as it doesn’t violate the constitution or law. I don’t see how declining to grant him physical access to the president can be considered being “deprived of life, liberty, or property, without due process of law”, although I understand that the concept of due process isn’t strictly limited to the 5th amendment.

      • Or simply stop having press conferences for a while and quietly let the White House press corps know that unless it deals with Acosta and his ilk, there won’t be ready access to the President. There is no requirement to have press conferences, and I suspect that the reporters who rely on these conferences for their prestige and livelihood could be persuaded to do some self-policing.
        This assumes, of course, that the President himself can tamp down his grandstanding instincts and avoid appearing before the press. No small task.

      • Exactly. I would go further and create a new procedure that rotates seating assignments from the front to back to get lesser known publications to be seen upfront.

        Each week the press in the front row moves to the rear and all press members move up one row.

        Then tell the WHCA this new procedure is to create greater press freedom and is part of the procedural updates that resulted from the unfortunate incident with Mr. Accosta

      • Just let Acosta stand in the room, and never call on him.

        Could he be allowed back in but under the condition that he can’t wear pants?

        Or that he must wear a funny hat or something?

        (Just thinking out loud … )

  5. Apparently there was some 40 year old case that was referenced for this narrow ruling.

    “An elegant weapon, for a more civilized age.”

    See https://www.theatlantic.com/politics/archive/2018/11/legality-revoking-jim-acostas-press-pass/575479/

    ” The new steps enunciated in the Sherrill decision to ensure that reporters’ First Amendment rights are not violated include the requirement to give the reporter notice and the right to rebut a formal written decision, which must accompany any revocation. “We further conclude that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees,” the court’s ruling states. “Such impairment of this interest cannot be permitted to occur in the absence of adequate procedural due process.”

    • See also https://ethicsalarms.com/2018/11/08/evening-ethics-leftovers-11-8-2018-acosta-beto-tucker-and-claire/#comment-579104

      Now if I were a betting person, given one non lawyer non us resident saying one thing about the legalities, and a us lawyer saying another thing, well, I know who the smart money would be on.

      No doubt some would contend that even a stopped clock is right twice a day too.

      I’ll take the fifth on that. Actually, make it a quart.

      • The opinion at most delayed the boom. Acosta still doesn’t have a right to disrupt the proceedings, or be rude, or to refuse to yield the floor. All the judge says is that the White House can’t make up standards as it goes along, though the standards Acosta violated were understood somehow for decades. As I said: mistaken opinion, but not necessarily without its virtues.

    • Two notable quotes from the Atlantic article:

      “Once the government creates the kind of forum that it has created, like the White House briefing room, it can’t selectively include or exclude people on the basis of ideology or viewpoint,” said Ben Wizner, the director of the ACLU’s Speech, Privacy, and Technology Project.

      “The media is not the enemy of the people,” the former Florida Governor Jeb Bush tweeted. “The freedom of the press is protected by the Constitution. Presidents never enjoy pointed questions from the press, but President Trump should respect their right to ask them and respect Americans enough to answer them.”

      As to the first quote, let’s be realistic and honest: the entire Nation is just ‘the kind of forum’ that allows for all forms of speech. And, yes, “it can’t selectively include or exclude people on the basis of ideology or viewpoint”. Except, if we are honest, it is exactly the issue of our present that some ideologies and some viewpoints must be excluded, are being excluded. When I say *must* I do not mean that this should happen, but rather that speech and idea — how one views things and what one is allowed to think and say — is the most heavily policed area. It is simply a fact that if a public official were to mention admiration for a certain dissident — for instance Noam Chomsky or David Duke — he or she would be, not could be, would be hauled out of their seat and damaged.

      The issue here is larger, and it is a backdrop to this rather silly display of fireworks and theatrics over Jim Acosta. The larger issue is that whole realms of ideas, and many figures who hold those ideas and express them, are barred from the communication of those ideas by invisible barriers. They are tarnished, *blacklisted* possibly, and through different mechanisms they are kept out of the flow of discourse.

      Now, it is simply a *fact* that The Media — the Big Media — actually serve a role there, in that. There are so many different topics that are kept out of popular discussion as a result. And indeed there are a dozen topics that if you bring them up, if you make efforts to talk about them, you run afoul and you are condemned.

      Actually, the question needs to be posed like this:

      “Is the Media the enemy of the people? And if it is, why? Explain.”

      To answer this question will necessitate definitions (as Jordan Peterson always focuses on). When we use the term Media what do we mean? It is not a simple issue. Obviously, it means ‘media system’ and ‘news corporation’, and it can also include (in the previous context) imbedded intelligence agents — there is a good deal of reporting that indicates that there are liaisons from government agencies who have relationships, cozy relationships, with reporters and news corporations. How about that as one element that gets put out on the table for discussion? Say, Henry Luce of Time magazine’s connections with the CIA in the Postwar? Who can speak, within the open public domain, of some of the hidden facts that define what *Media* are, what they represent, and the degree that it could be argued they definitely do not serve ‘the people’?

      Now, let us define The People. Again, not an easy task. Are News Corporations ‘the people’? And in what way do they serve ‘the people’? When we use that word, what is meant? It could easily be suggested, and argued, that News Corporations do not, in truth *serve* anyone specifically except the stockholders of the News Corporation. At the very least it could be suggested that not all is transparent here.

      This is such elemental and basic material. A nine years-old child could point this out.

      And then let us examine ‘Enemy’. Another very complex term.

      In actual point of fact this whole stooooopid national display obscures, at every point, the really important and under-structuring issues which no one will talk about and no one can talk about! And the question really is: To what degree do you and I and we participate in and give our assent to the closing down of the Larger Conversations?

      Those conversations have to do with the creation of the multiethnic society of the Postwar as a business decision by powerful interests. It has to do with how huge capital can, will and does interpose itself and *force its will* within a (supposed) Constitutional system. That is just one small reference that no one will talk about. It could be expanded a hundredfold.

      Race and ethnicity, the post Sixties immigration issue, the very definition of America and even of Europe. The undergirding power struggles in America society, today, between the people of color faction, aligned with the Democrats, and the movement that is forming that opposes them, and yet cannot ‘raise its head’ and resists non-openly. What about what is called the ‘JQ’ and the astounding influence of Israel on America’s policies and indeed America’s involvement in non-ending wars against *terrorism*? These wars that are tearing at the fabric of American society?

      As I say there are at least a dozen Large Questions that involve unthinkable thought, within this present System that has Orwellian thoughtcontrol elements. Every major issue that comes to the front today has an extensive background and underpinning that is never openly discussed.

      Why?

      Presidents never enjoy pointed questions from the press, but President Trump should respect their right to ask them and respect Americans enough to answer them.

      This is an example of pure b***sh*t. This man cannot get anywhere near the relevant and important questions and that is why there exists a sharp term for this brand of conservatism. Let me modify it: shuck-servatism. 😉

  6. For some reason, I am reminded of the Simpsons’ episode in which Homer Simpson incurs the displeasure of the town’s restaurateurs after becoming a food critic. One restaurateur suggests banning Homer Simpson from their restaurants, but the Japanese restaurateur says “that would be impolite, let’s just kill him”, so the restaurateurs go with that.

    Would such an approach present presidents with fewer constitutional difficulties in cases such as the present one? It was certainly used by the likes of Henry VIII, which gives it a persuasive if not a binding precedent. (This is not a question about the ethics, though clearly that influenced the fictional Japanese restaurateur’s response.)

  7. In my very laymen’s view the journalist was being impertinent. I do not see subjecting politicians to rude and ignorant behaviour was the intention of those who framed the amendment. Perhaps journalists who wish to grandstand should submit their questions in writing.

  8. I still don’t see any reasonable rationale for compelling the reinstatement of his press pass.

    I get the argument of “to have liberty you have to have too much”, from your 1st bullet point.

    But if that’s the case, then I want MY press pass and I want it NOW. Journalists aren’t Citizens 1st Class who have higher ranking 1st Amendment rights than I do.

  9. What is so hard about giving EVERY Journalist a mic, and letting Trump (by proxy) control whose is live at any one moment?

    Heck, give each so called journalist their own soundproof booth, and let POTUS address them like ‘Hollywood Squares’ one at a time.

    These stuffed shirts have no rights in MY White House.

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