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Pictured: Woman sits on a couch holding a newspaper called “The Daily” with the headline “Fake News”
By Hillary Hyduke
On November 7, 2018, President Donald Trump revoked the White House credentials of CNN’s chief White House correspondent, Jim Acosta, because Acosta “failed to ‘treat the White House with respect’ at a White House press briefing.”[1] The revocation raises questions regarding Trump’s strategy in dealing with press coverage with which he disagrees, as well as serious questions of law under the First and Fifth Amendments.
As a policy matter, waging a war against the press as the President of the United States is ill-conceived and perpetuates Trump’s bad press.[2] Trump spoke out against the media from the beginning of his presidential campaign, consistently lashing out at major news sources for publishing what he deemed to be “fake news.”[3] However, Fox News’ Chris Wallace recently pointed out that what Trump considers “fake news” is often merely news Trump does not like.[4] Many Americans have long taken issue with Trump’s attacks on the media, ever-present in his daily rhetoric and Twitter feed.[5] For example, Trump received notable criticism from retired Navy Admiral William McRaven, who led operations responsible for finding Saddam Hussein and killing Osama bin Laden.[6] McRaven was disheartened by Trump’s tweet calling the press the “enemy of the people,” stating in response that the sentiment is “perhaps the greatest threat to democracy in my lifetime.”[7]
The backlash from news outlets after Trump took aim at the free press by revoking Acosta’s White House credentials was swift and strong, even coming from those often considered allies of Trump.[8] Fox News, a long-time rival of CNN and notorious Trump defender, aired an interview on Sunday, November 18 discussing the freedom of the press under Trump’s presidency.[9] Chris Wallace explained that while many presidents have taken issue with the press before—including President Barack Obama, whom Wallace claimed often “whined” about Fox—none ever called the press “the enemy of the people” as Trump has.[10] Trump argued that he did not mean to refer to Fox when he made the comment, but Wallace quickly responded, “We’re all together. . . . We’re in solidarity, sir.”[11]
As a legal matter, waging a war against the press, and thereby threatening the guarantee of its freedom enshrined in the First Amendment, violates the Constitution.[12] More than a dozen of the biggest news organizations in the U.S. filed amicus briefs in support of CNN and Acosta, or stated an intent to do so.[13] The White House Correspondents’ Association, which includes over 100 print, television, radio, and online news outlets, was one such organization.[14] The president of Fox News stated that the case is about the free press and that “Secret Service passes for working White House journalists should never be weaponized.”[15] The news outlets argue that reporters covering the White House must remain free to ask questions—that “it is imperative that independent journalists have access to the President and his activities, and that journalists are not barred for arbitrary reasons.”[16] They continue, “Our news organizations support the fundamental constitutional right to question this President, or any President.”[17]
Although the Department of Justice argues that the President’s discretion over who receives passes is unrelated to free speech, case law does not support that assertion.[18] The White House voluntarily established press facilities to be open for use by Washington-based correspondents for reporting.[19] The facilities are not available to the general public, but are available for entry and as a source of information for those reporting the news.[20] Thus, correspondents, the publications for which they write, and the public at large have a First Amendment interest in “assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information.”[21] As CNN argues, “The Framers of our Constitution embraced a ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’”[22] The president does not have the authority to repress this sort of debate or news-gathering, no matter about whom the content is critical or what office the individual who is being criticized holds.[23]
CNN also argues that Acosta’s Fifth Amendment right to due process was violated when the president revoked Acosta’s White House credentials, and thus Acosta’s ability to work, without informing him of the reasons for the revocation and providing him with an opportunity to rebut them.[24] CNN states that the protection afforded newsgathering under the First Amendment requires that access to White House press facilities “not be denied arbitrarily or for less than compelling reasons,” which requires notice of the factual bases for such a denial and an opportunity to rebut.[25]
While there was much left to be decided in Cable News Network, Inc. v. Trump, CNN had already won bipartisan support from the public and other news outlets.[26] Following the outcry, a Trump appointee in the district court issued a restraining order granting Acosta renewed White House access.[27] On Monday, November 19, CNN signaled that it did not plan to move forward with the ongoing litigation after the White House restored Acosta’s press pass, “bowing to days of pressure” and the federal lawsuit.[28] While the decision to drop the suit leaves in place precedent that is helpful to the press, it also leaves some unanswered questions of law, which are likely to appear again amidst the administration’s ongoing war with the press.
One thing is clear from the event and the immediate response by media outlets and legal scholars alike: If Trump does not like the news coverage he receives, he must change it in a way that is constitutional – by doing more to generate positive headlines.
[1] See Complaint at 3, Cable News Network, Inc. v. Trump, 1:18-cv-02610-TJK (D.D.C. Nov. 13, 2018); see also Ed Pilkington, Trump v CNN: Lawsuit Becomes Test Case on Press Freedom, The Guardian (Nov. 14, 2018), https://www.theguardian.com/media/2018/nov/14/trump-cnn-jim-acosta-lawsuit-whats-at-stake-press-freedom (explaining that Acosta’s White House press pass was suspended when Acosta refused to immediately give up the microphone during a “feisty press conference” following the midterm elections; Trump had called Acosta a “rude, terrible person” for asking about his remark that a caravan of Central Americans seeking asylum was “invading” the U.S.).
[2] See Chris Riotta, Over 100 newspapers to Publish Damning Editorials against Donald Trump’s Attacks on the Press, Independent (Aug. 13, 2018), https://www.independent.co.uk/news/world/americas/donald-trump-press-enemy-of-american-people-boston-globe-newspaper-editorials-a8490361.html.
[3] See Dick Polman, Donald Trump’s Unprecedented Assault on the Media: The First Amendment Lawyer Floyd Abrams Says Trump Easily Surpasses Richard Nixon as the Greatest Threat the News Media in America Has Ever Faced, The Atlantic (Aug. 18, 2018), https://www.theatlantic.com/politics/archive/2018/08/donald-trumps-unprecedented-assault-on-the-media/567826/.
[4] See William Cummings, Fox News Host Chris Wallace Tells Trump World Sees Him as ‘Beacon for Repression,’USA Today (Nov. 18, 2018, 11:14 AM), https://www.usatoday.com/story/news/politics/2018/11/18/trump-fox-news-interview/2047428002/(stating that Trump’s argument that he only targets news that is fake and unfair is flawed because the president does not “get to decide what’s fair and what’s not”).
[5] See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Nov. 26, 2018, 2:47 PM), https://twitter.com/realDonaldTrump/status/1067142819008122885 (“While CNN doesn’t do great in the United States based on ratings, outside of the U.S. they have very little competition. Throughout the world, CNN has a powerful voice portraying the United States in an unfair…and false way. Something has to be done, including the possibility of the United States starting our own Worldwide Network to show the World the way we really are, GREAT!”); Donald J. Trump (@realDonaldTrump), Twitter(Nov. 25, 2018, 8:59 PM), https://twitter.com/realDonaldTrump/status/1066873981293260801 (stating “.@60Minutes did a phony story about child separation…”); Donald J. Trump (@realDonaldTrump), Twitter (Nov. 19, 2018, 2:10 PM), https://twitter.com/realDonaldTrump/status/1064596708875747328 (stating “The Fake News is showing old footage of people climbing over our Ocean Area Fence…”); Donald J. Trump (@realDonaldTrump), Twitter (Nov. 21, 2018, 7:36 PM), https://twitter.com/realDonaldTrump/status/1065403512559992832 (stating “You just can’t win with the Fake News Media”); Donald J. Trump (@realDonaldTrump), Twitter (Nov. 17, 2018, 11:42 AM), https://twitter.com/realDonaldTrump/status/1063834733430206465 (“The New York Times did a phony story, as usual, about my relationship with @VP Mike Pence. They made up sources and refused to ask me, the only one that would know, for a quote…I can’t imagine any President having a better or closer relationship with their Vice President then the two of us. Just more FAKE NEWS, the Enemy of the People!”).
[6] William McRaven, Journalism: Essential to Democracy, The University of Texas System (Feb. 23, 2017), https://www.utsystem.edu/offices/chancellor/blog/journalism-essential-democracy.
[8] See Brian Stelter, Fox News And Other Outlets Join CNN Fight over Press Access to White House, CNN Business (Nov. 14, 2018, 2:43 PM), https://www.cnn.com/2018/11/14/media/cnn-lawsuit-support/index.html.
[9] See generally Interview by Chris Wallace with Donald Trump, on Fox News (Nov. 18, 2018), https://www.youtube.com/watch?v=rMgJnnG-NqI.
[13] See Grace Segers & Kathryn Watson, Fox News, CBS News and Other Outlets Back CNN in Legal Fight Against White House, CBS News (Nov. 14, 2018), https://www.cbsnews.com/news/fox-news-other-news-outlets-file-amicus-briefs-in-support-of-cnn-lawsuit-against-trump-administration/ (illustrating the breadth of news outlets joining CNN in its suit against the White House); Stelter, supra note 8 (listing the news outlets filing amicus briefs).
[14] See Brief of the White House Correspondents’ Association as Amicus Curiae Supporting Plaintiffs’ Motions for a Temporary Restraining Order and Preliminary Injunction at 1-2, Cable News Network, Inc. v. Trump, 1:18-cv-02610-TJK (D.D.C. Nov. 13, 2018) (explaining the organization’s membership and interest in the case, as well as outlining its arguments against the White House).
[15] Brian Flood, Fox News stands with CNN: ‘Passes for Working White House Journalists Should Never be Weaponized,’ Fox News (Nov. 14, 2018), https://www.foxnews.com/entertainment/fox-news-stands-with-cnn-passes-for-working-white-house-journalists-should-never-be-weaponized.
[16] See Stelter, supra note 8.
[18] See Sherrill v. Knight, 569 F.2d 124, 129-131 (D.C. Cir. 1977) (holding that under the First and Fifth Amendments, a bona fide Washington journalist may only be denied a White House press pass if the refusal is based on a compelling governmental interest, and the journalist must be informed of the factual bases for denial, be given a chance to rebut these, and be given a final written statement of the reasons for denial). But see Andrew M. Harris & David Voreacos, Trump Administration Says Reporters Don’t Have a Right to Enter White House, Bloomberg (Nov. 14, 2018, 12:24 PM), https://www.bloomberg.com/news/articles/2018-11-14/trump-responds-to-cnn-by-defending-white-house-ban-of-acosta (arguing that the press has no First Amendment right to access the White House). See generally U.S. Const. amend I.
[19] See Sherrill, 569 F.2d at 129 (explaining how the White House press facilities were established).
[20] See id. (explaining how the First Amendment applies to White House press facilities).
[22] Complaint at 3, Cable News Network, Inc. v. Trump, 1:18-cv-02610-TJK (D.D.C. Nov. 13, 2018) (citing N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964) (holding that the lower courts failed to provide sufficient safeguards of the freedom of speech and of the press in a libel action brought by a public official against critics)).
[23] See id. (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988) (holding that a public figure could not recover against a magazine for libel, slander, or intentional infliction of emotional distress from publication of an advertisement caricature because the public figure did not show that the false statements were published with actual malice or reckless disregard of truth).
[24] See Complaint at 15; see also Sherrill v. Knight, 569 F.2d 124, 131 (D.C. Cir. 1977) (reasoning that the interest of a Washington correspondent in obtaining a White House press pass “undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment”). See generally U.S. Const.amend V.
[25] See Complaint at 3-4 (quoting Sherrill v. Knight, 569 F.2d 124, 129-31 (D.C. Cir. 1977)).
[26] See Stelter, supra note 8.
[27] Bill Donahue, White House Ordered to Return CNN Reporter’s Press Pass, Law360 (Nov. 16, 2018, 10:34 AM), https://www-law360-com.proxy.wcl.american.edu/articles/1102794/white-house-ordered-to-return-cnn-reporter-s-press-pass.
[28] David Shortell & Brian Stelter, White House Backs Down from Legal Fight, Restores Jim Acosta’s Press Pass, CNN Business (Nov. 19, 2018, 3:53 PM), https://www.cnn.com/2018/11/19/media/cnn-acosta-emergency-hearing/index.html.