Judge Orders White House To Restore Reporter's Press Pass It Illegally Removed
from the well-duh dept
Just a few weeks ago, we wrote about how the White House was clearly setting itself up for another embarrassing failure in court when it removed the press pass of Brian Karem. This wasn't new. The same thing had happened a year ago. And yet, our comments filled up with a lot of nonsense about how we were wrong and "there is no right to a White House press pass" and a bunch of other nonsense.
I'll be curious to hear the response from those same individuals now that a federal judge has ordered the press pass restored.
As the Court will explain below, Karem has, at this early stage of the proceedings, shown that he is likely to succeed on this due process claim, because the present record indicates that Grisham failed to provide fair notice of the fact that a hard pass could be suspended under these circumstances. Meanwhile, Karem has shown that even the temporary suspension of his pass inflicts irreparable harm on his First Amendment rights. The Court therefore grants Karem’s motion for a preliminary injunction and orders that his hard pass be restored while this lawsuit is ongoing.
The court focuses mainly on the 5th Amendment due process claims, noting that those alone suffice to show that Karem is correct here. The judge goes into great detail about how the White House never did anything to suggest special decorum rules for these events, and thus the decision to ban Karem was arbitrary. The White House brought up all sorts of bizarre explanations insisting that it had provided adequate notice to Karem, but the judge points out that's just not true.
First, the letter’s language, taken in its entirety, is ambiguous as to whether the White House even intended to regulate events other than formal press conferences. Indeed, by expressly limiting the scope of the promulgated rules—including the warning about the “suspension or revocation of . . . hard pass[es]”—to formal press conferences, the White House arguably suggested that it was not going to police reporter behavior at other events, unless “unprofessional behavior occur[red]” and it was “forced to reconsider [its] decision” by publishing explicit rules.
Also, whatever "rules" there might have been were way too vague:
The letter refers only to “professional journalistic norms, ” Acosta Letter at 2, which is just as amorphous as the “reasons for security” language that the D.C. Circuit found insufficient in Sherrill, 569 F.2d at 130. Though “professionalism” has a well-known common meaning, it is inherently subjective and context-dependent. Such abstract concepts may at times indicate what is allowed and disallowed at the furthest margins, but they do not clearly define what is forbidden or permitted in common practice within those margins. The vagueness doctrine guards against this danger by ensuring that regulated parties are able to discern, as a practical matter, “what is required of them so they may act accordingly.” Fox, 567 U.S. at 253.
The judge also notes that Karem's lawyers presented plenty of evidence of obviously much worse behavior that did not lead to press pass revocation:
Defendants appear to argue that, even if the meaning of “professionalism” may be debatable in certain instances, Karem’s behavior was clearly unprofessional in this instance. This contention appears to be grounded in the notion that “a plaintiff who ‘engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’”... Again, though, “professionalism” is context-dependent, and Karem has provided some evidence that White House press events are often freewheeling and that aggressive conduct has long been tolerated without punishment. That evidence includes a characterization of the White House press corps as “an unruly mob of reporters.” Ex. C at 5. It includes stories of how journalists have “rudely interrupted” presidents and “berated” press secretaries, Ex. D at 1; have “breach[ed] etiquette” by “heckling” during presidential remarks, Ex. I at 1; and have shouted questions at the conclusion of Rose Garden events, drawing the ire of honored guests in attendance, see Ex. E at 2; Ex. C at 4. The evidence even includes an account of how two reporters once “engaged in a shoving match over positions in the briefing room.” Ex. C at 5. This kind of behavior may have occasionally led the White House to speak with reporters’ employers... but it apparently never resulted in the revocation or suspension of a hard pass.... And, as noted above, the Acosta Letter does not unambiguously signal a departure from that regime. In fact, the letter could reasonably be read to mean that the pre-existing regime would be maintained for the time being.
Defendants, meanwhile, have submitted no evidence in support of their contention that Karem’s conduct was clearly proscribed under the existing “professionalism” policy. They instead rest entirely on Grisham’s August 16 letter and its conclusions that “Karem’s actions, as viewed by a reasonable observer, (1) insulted invited guests of the White House, (2) threatened to escalate a verbal altercation into a physical one to the point that the Secret Service deemed it prudent to intervene, and (3) re-engaged with . . . Gorka in what quickly became a confrontational manner while repeatedly disobeying a White House staffer’s instruction to leave.” Ex. 10 at 8. But in light of the evidence that Karem has presented the first and third conclusions do not seem clearly sanctionable in the context of the White House press corps. And the second conclusion is not supported by the various video recordings of the July 11 incident. No doubt, Karem’s remark that he and Gorka could “go outside and have a long conversation,” id. at 3, was an allusion to a physical altercation, but the videos make clear that it was meant as an irreverent, caustic joke and not as a true threat. And the videos belie the notion that a Secret Service agent had to intervene to prevent a fight: the agent walks right past Karem as the exchange with Gorka is concluding (before returning upon hearing someone call Karem a “punk ass”). See Ex. 63 at 0:30–0:36; Ex. 61 at 0:23–0:27. Rather, Karem and Gorka each had ample opportunity to initiate a physical altercation, and they each made the decision not to.4 Plus, Karem’s interaction with Gorka in the Rose Garden was brief—about twenty seconds, see Ex. 63 at 0:09–0:31—and it came after the President’s remarks had concluded. This event was also one where jocular insults had been flying from all directions.... There is no indication in the record that other offenders were reprimanded, or even told to stop.
The court notes that it need not really get into the 1st Amendment arguments, given the 5th Amendment points raised above, other than to order the immediate return of the press pass, because taking it away creates irreparable harm to Karem's 1st Amendment rights.
It is not merely an abstract, theoretical injury, either. As Sherrill recognized, “where the White House has voluntarily decided to establish press facilities” that are “open to all bona fide Washington-based journalists,” the First Amendment requires “that individual newsmen not be arbitrarily excluded from sources of information.” ... Such exclusion is precisely what Karem is suffering here. His First Amendment interest depends on his ability to freely pursue “journalistically productive conversations” with White House officials.... Yet without his hard pass, he lacks the access to pursue those conversations—even as an eavesdropper. And given that the news is time-sensitive and occurs spontaneously, that lack of access cannot be remedied retrospectively.
The case is not over, but for the time being the White House needs to restore Karem's pass. And I'll be eagerly waiting to see what those who insisted this case would go the other way have to say in our comments.
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Filed Under: 1st amendment, 5th amendment, brian karem, due process, journalism, press pool, stephanie grisham, white house
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That assumes this White House is capable of embarrassment.
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Re:
Oh come on. If this government has demonstrated anything beyond reasonable doubt, it is its tremendous capacity to embarrass itself and the American people.
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Re: Re:
And be OK with that!
Wait...and exponentially expound on that via 'Executive Orders' that may or may not actually order anything, in the concept of actual order. Political positioning is a different matter.
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Re: Re:
And just like the trumpists they don't give a fuck.
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Re: Re:
There's a difference between making the government and the country a global laughingstock and the ones responsible actually feeling embarrassed, as that requires both capability to feel embarrassment and the willingness and ability to own the fact that it was their actions that resulted in said laughingstock status and as such they should feel embarrassed for it.
Since the latter requires admitting to having made a bad decision/stupid statement and that's clearly not happening I'd say the current WH at least is completely immune from embarrassment, at least as far as feeling it themselves.
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Re: Re: Re:
Well the world did literally laugh at Trump (and us) at the UN. It was so bad, Trump couldn't even get them to chant, "Lock her up".
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Re: Re:
Embarrass the American people? Absolutely.
Embarrass itself? I ask you this: when has anyone in the Trump Administration ever expressed anything remotely resembling embarrassment or shame?
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Any day now... any day now
I for one can’t wait for the rush of rumpled foreskins to flood this forum with apologies and admissions that they were wrong. Seeing as soooo many of them were absolutely sure that the White House was free of constraint from the First Amendment.
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Re: Any day now... any day now
It"s not like the government has shown any great respect for the rest if the Constitution ir court orders, so what makes you think anything will change now?
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Re: Any day now... any day now -- No, you cannot win!
A) the case isn't over.
B) the Administration is SURE to win all future cases, after write out explicit rules.
C) lawyers will go along with "process" to any extent.
D) the Administration CAN at any time simply state "Executive Privilege" on its turf, and no court can actually force it to act: that'd make a meaningless "Constitutional crisis", which woiuld be used as hook for "impeachment", which I'd like to see because Trump has popular support and would win.
So it IS not and definitely won't be actual loss for anyone who disagreed, just annoying!
You and espcially Masnick are gleeful at a safe topic and thinking you've won. Sheesh.
Hope you kids appreciate my effort to gin this up. I have my reasons: makes Techdirt look FOOLISH! And it'll help when you censor this and go on rants! So have at it!
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Re: Re: Any day now... any day now - Bring it on
You want to put your money where your mouth is bro?
If the Trump admin wins I’ll stop making fun of you.
If they lose you will leave forever like you promised.
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Re: Re: Any day now... any day now -- No, you cannot win!
Marked as funny cause there's still no button to mark something as idiotic.
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Re: Re: Any day now... any day now -- No, you cannot win!
A) the case isn't over.
Fo sure! There's definitely some more bitch slapping this judge is going to hand out to the Tard administration.
B) the Administration is SURE to win all future cases, after write out explicit rules.
Which certainly won't help in this case, dipshit.
C) lawyers will go along with "process" to any extent.
Not even sure what the hell you're even talking about.
D) the Administration CAN at any time simply state "Executive Privilege" on its turf, and no court can actually force it to act: that'd make a meaningless "Constitutional crisis", which woiuld be used as hook for "impeachment", which I'd like to see because Trump has popular support and would win.
And yet, it didn't. Seems so simple, yet it escaped the stable genius mind of the moron whose taint is probably making your face stink like rotten cheese right now...
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Re: Re: Any day now... any day now -- No, you cannot win!
C) lawyers will go along with "process" to any extent
You mean the lawyers you consistently want and demand to die a horrible, painful death?
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They'll try to frame it as a win for the Trump WH and add a "I told you so" as well.
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Why California has a "defecation crisis": nobody told 'em!
Do supposed professionals now need explicitly told EVERY possible point of common etiquette? Like not to SHOUT challenges to a fight outside? Sheesh.
This is nowhere, on at or for either side, even said to be "illegal" as you claim. You are exaggemerating.
Your glee at this ultimately irrelevant "victory" is childish. Even if goes as prior so that Admin has to write out rules, you are childish.
And your taunting of those who disagreed! (Weren't ME! I just waited.) Sheesh! That shows only that you're DESPERATE for a victory, for ANY slight item you can claim is a "win".
Meanwhile, you're denying ME the pleasure of having you report that the biggest pirate site in the world -- manga, according to Torrent Freak -- has CLOSED. They're no doubt trying to avoid JAIL after seeing others now in JAIL. -- So when you going to run that so I can TAUNT you that pirates are losing and all your notions are flatly ILLEGAL, Maz?
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Re: Why California has a "defecation crisis": nobody told 'em!
Off your meds again?
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Re: Re: Why California has a "defecation crisis": nobody told 'e
Or has he just lost all of his cognitive reasoning ability and is rapidly deteriorating mentally.
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Re: Re: Why California has a "defecation crisis": nobo
I see you're a Californian, are talkin' CRAP.
I'm done. Censor and Enjoy, kids!
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Re: Or do you just want to be an ignorant motherfucker forever
Put up or shut up bro.
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Re: Re: Re:
You're the one who sexually identifies as attracted to the DMCA.
Giving you a DMCA vote is merely appropriate.
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Re: Why California has a "defecation crisis": nobody told 'em!
So if it gives you so much pleasure, start your own website and post stuff like that to your heart's content. Or do you really believe that websites are obligated to cater only to your whims?
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Re: Why California has a "defecation crisis": nobody told 'em!
So, piracy is over? Who knew.
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Re: Why California has a "defecation crisis": nobody told 'em!
Hmm. Drifting off-topic again, I see. Anything to include the word "pirates", it would seem. Go boil your head, Blue. You're nothing but an obsessive and a complete waste of good oxygen.
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Re:
Pro tip, "manga" is not a site, pirate or otherwise.
Manga are comics or graphic novels created in Japan or by creators in the Japanese language, conforming to a style developed in Japan in the late 19th century.
I believe you are referring to "Manga Rock", which is a website but is not the same as the term "manga".
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May I try?
Clearly that judge has no grasp of U.S. law and should be sent back to Reddit.
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49 more states to try and guess from...care to try again?
I'd suggest you speak to your doctor about you hallucinating what state someone is from based purely off a four word post.
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Fun fact: there is sentient life outside of the U.S.A., too.
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I was trying to keep it simple for him
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Too??? I'm not entirely convinced there is inside the USA
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A couple of months ago I won comment of the week for noticing that the comments here remain civil. Well, those days are gone.
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Re:
They are mostly civil. Blue is the exception that proves the rule.
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Re: Re:
Well, his comments are typically flagged soon enough to not make much of a sight. But he does set the tone for the followup threads that remain in his wake.
Unless the readers do more of the "flag and move on" instead of "flag and reply" routine, that will not likely change.
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Who's the bigger fool, the fool or the one who follows them?
People really need to stop feeding that idiot, or at the very least stop sinking to his level and showing that they're only just better than them. Until they do that it's no wonder Blue goes on ranting sprees left and right, because they know it will get people worked up and dancing to their tune, which is just downright pathetic.
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Re: Who's the bigger fool, the fool or the one who follows them?
But he makes Zof look borderline sane. It's hard not to respond to someone who makes such a fool of themselves in public.
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Hard perhaps, but still worthwhile
It's one thing to respond in a calm and measured manner showing why and how they're wrong, which just makes the troll look even worse in comparison, but when people sink to their level and start responding in nothing but insults and childish claims then at that point the troll has won.
They not only got attention they got people worked up and angry, and all for no more effort than some typing on their part, and they've made those who fell for the bait look both gullible and just as immature as they are because now both sides are just flinging insults like kids on a playground.
If people must respond to trolls beyond flagging their comments then do it on your terms, not the troll's, turning their attempts to rile people up against them and making them look even more foolish in the process.
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Re: Hard perhaps, but still worthwhile
It's one thing to respond in a calm and measured manner showing why and how they're wrong, which just makes the troll look even worse in comparison, but when people sink to their level and start responding in nothing but insults and childish claims then at that point the troll has won.
This I agree with entirely. I actually think thoughtful, detailed responses to the trolls can (potentially) add to the conversation and thinking here -- and frequently do. The childish responses, for the most part, do not (sometimes there are clever jokes in response, though, and the line between those may not always be entirely clear).
I get that it's frustrating when it's so obvious that trolls are not discussing points in good faith or with any sort of intellectual honesty -- and that frustrates me as well. Of course, that's one of the goals of the trolling.
But thoughtful careful responses are something that I do still think are good, and the whole idea that those responses are "feeding the trolls" doesn't hold much water for me, because everyone can still learn from the thoughtful replies, and they're useful because there are times when there are people who legitimately believe in the same confused point that the trolls are passing off disingenuously (and, yes, at this point it's fairly obvious that the particular troll everyone is discussing is not at all serious in his comments, but is a garden variety troll).
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Re: plenty of evidence of obviously much worse behavior
So whataboutism works?
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Re: Re: plenty of evidence of obviously much worse behavior
Whataboutism is when you are criticized, so you turn and point out something negative about the other side that has no equivalence with what you've done.
The term was coined to describe Soviet-era deflection tactics. You condemn the way Russian dissidents get disappeared? What about apartheid?!
It's also found plenty of use in the Trump administration. I am accused of sexual harassment? But her emails!
It could be seen as whataboutism if, for example, my press pass was revoked for "confronting an official" and I responded by complaining about an official who was not punished for making racist comments. They are not directly comparable situations, regardless of whether or not either situation is acceptable behavior.
This is not whataboutism. This is pointing out that the same rules and standards were broken or disobeyed, in ways that are clearly statistically more egregious, and yet the perpetrators received far less punishment, if any at all.
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Two WORDS
Kritarchy (rulel by judges). Bona-fide.
So if i try to start fist fights on the White House lawn, but I am bona-fide then some judge somewhere will determine if the Administrative branch can exert control over the "bona-fide" person? What if they "bona-fide" pulls a gun? What if the person is not "bona=fide?"
Perhaps if the person works for say, Tech Dirt. Well, that's not "bona=fide" according to our Judge-rulers.
The world you seem with all your little heart to want? You are one of those people who just think it will never apply to them. It will.
Only bona-fide people are allowed to comment here.
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Re: Two WORDS
It's funny when people are so proud of not comprehending what they tried to read.
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Re: Two WORDS you lose
At least you had the balls to show up to this thread after getting your ass handed to you by us and more importantly by the judge. Too bad you’re still as dense as a neutron star.
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Re: Two WORDS
Yeah, getting vaccinated for smallpox was such a fucking bitch for humanity now, wasn't it?
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Good job! I'm very impressed at how far you were able to read into that paragraph. You made it a whole 30 words before your brain shut off! Fantastic effort! Because you were trying so hard, I'll help you with the rest of those words, so that you will not have so much trouble understanding them.
arbitrarily (adverb): to perform an action without a basis in sound logic; to do something without a valid reason; to do it "because I feel like it".
Now, I know it might be hard to understand, but pulling a gun on the White House lawn is usually considered by modern society as being a very valid reason to be handcuffed, imprisoned, fined, or even, perhaps, shot. It is a logical response because if you are not handcuffed, imprisoned, fined, or even, perhaps, shot, you might really hurt someone! (And also you have broken about five different laws.)
I am not aware of a time when any civilian, let alone a journalist, has pulled a gun on the White House lawn and the White House responded with a thumbs up and a smile.
This means that if you pulled a gun on the White House lawn, and you were given a behind-the-scenes exposition on the size and functionality of the White House firearm collection (in other words: you were threatened with very many bullets), this would not be an arbitrary decision, because they treat everyone who pulls a gun on the White House lawn the same way. (By threatening them with very many bullets.)
In this instance, it does not matter at all whether you are a bona-fide free-range all-natural FDA-certified grade-A journalist.
But, try to imagine, if you can, if you were an actual journalist (I know, it's really hard to imagine that, but I believe in you, you can do it if you try hard enough!) and you were escorted out for sneezing a couple of times, but your friend Sally Sue sneezed all day without being escorted out. That means that they made an arbitrary decision to escort you out, and they are not allowed to do that.
Now, as far as what makes a journalist a bona-fide free-range all-natural FDA-certified grade-A journalist?
It doesn't matter.
If you got a pass in the first place, well, you passed. Congratulations. You are officially bona-fide free-range all-natural FDA-certified grade-A journalist and they cannot take away your pass without a good reason!
If you didn't get a pass, well, let me try to explain. They cannot take away your pass, because there is no pass for them to take away. It just does not exist. They could try to take away your pass, but, just like my sanity, they would never be able to find it.
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Re: Two WORDS
[Asserts facts not in evidence]
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"And I'll be eagerly waiting to see what those who insisted this case would go the other way have to say in our comments."
Don't underestimate the clownish asshats.
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Who woulda thunk?
WH arbitrarily applies vague "rules".
Remember, this is the head of the executive branch.
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Now for the big question:
How long will it take the WH to try to see if third time's the charm?
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Re: Now for the big question:
Why wouldn't they just continue that practice? It locks out the nuisance for a few months and creates legal costs that will have to be paid by the nuisance on the side of the plaintiff and by the taxpayer on the side of the defense.
Those are just Pyrrhic losses, formal in nature but not costing those a dime who trigger them.
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Re: Re: Now for the big question:
A fair, if unfortunately true point. With no real penalty they have no reason not to keep pulling the same stunt, even if they know they will ultimately lose the resulting cases.
Much like SLAPP suits or copyright extortion for some things winning the legal battle is merely icing on the cake, as the real objective can be accomplished even with a legal 'loss.'
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You're misrepresenting the judge here
There is no right to a White House press pass. There is no problem with the White House revoking a press pass. The only problem is arbitrarily revoking one without warning to stifle free speech. They basically have shown that the revoking was arbitrary and capricious and discriminatory. There is no right to a press pass because if there is where is your press pass Mike?
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As attempts at excuses go, that's just sad
Remember: Before shifting the goalposts in an attempt to avoid having to admit to having been wrong always stretch so as to reduce the possibility of pulling or otherwise straining muscles and ligaments.
A goalpost-shift related injury may be funny for everyone else, but for the one suffering the pain and mockery it is no laughing matter.
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Re: You're misrepresenting the judge here
You're misrepresenting the article, of course.
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Re: You're misrepresenting the judge here
There is no right to a White House press pass.
If you're the media, there absolutely is. You are simply wrong.
There is no problem with the White House revoking a press pass.
As multiple courts have held, you are wrong.
The only problem is arbitrarily revoking one without warning to stifle free speech.
No. The courts have held multiple reasons for why a press pass can't be revoked. Arbitrariness is one reason. Lack of due process is another. Viewpoint discrimination is another.
They basically have shown that the revoking was arbitrary and capricious and discriminatory.
In other words, multiple reasons why the White House cannot deny a press pass.
There is no right to a press pass because if there is where is your press pass Mike?
What a weird statement. I don't have a press pass because I've never requested one, nor would I want to request one. I don't need or want a White House press pass as we don't cover "the White House," and it would be a waste of our time. However, if we did request one, the White House would have to give us one as we meet all of the basic criteria (not for a hard pass -- which requires a regular presence in the White House, but that's not based on viewpoint/content, and thus is a reasonable restriction).
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Nice jump from a White House press pass to just a press pass. Care to explain why you think Mike needs a WH press pass?
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Re:
If Masnick ever got a press pass you'd see the usual trolls here shit enough bricks to build Trump's wall for him.
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