Appeals Court Again Says That The White House Can't Just Remove A Press Pass Because It Didn't Like A Reporter Mocking Seb Gorka

from the not-how-it-works dept

Last summer we explained why it was a clear 1st Amendment and 5th Amendment violation for the White House to remove Playboy reporter Brian Karem's press pass, with no warning, after he got into a small verbal tiff with former White House employee Seb Gorka. Lots of Trump supporting people, who seem wholly ignorant of how the Constitution actually works, were very mad at us for reporting on that, and insisted that it was somehow obvious that the White House could revoke a press pass like that, even in retaliation for a reporter's statements. And yet, just as we predicted, the district court quickly ruled that the White House needed to restore Karem's pass.

Now, nearly a year later, the DC Appeals court has affirmed that decision and made it quite clear that the White House's removal of Karem's pass was unconstitutional. The full ruling is worth reading, and, as with the district court, focuses more on the 5th Amendment due process problems, rather than the 1st Amendment retaliation problems. And just to respond to the same comment that came up multiple times in our comments, no, no one is saying that the White House has to automatically let anyone in to press events. Instead, as the court explains, if the White House is opening up an event to the press, it cannot bar people for "arbitrary" reasons (or for any reasons that violate the 1st Amendment, regarding retaliation for speech).

We began by emphasizing that Sherrill’s claim “[wa]s not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.” Id. at 129. But given that “the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom” and given that “[t]hese press facilities are perceived as being open to all bona fide Washington-based journalists,” we held that “the protection afforded newsgathering under the first amendment . . . requires that this access not be denied arbitrarily or for less than compelling reasons.” Id. at 129 (internal citations omitted). Moreover, “the interest of a bona fide Washington correspondent in obtaining a White House press pass” is not only “protected by the first amendment” but also “undoubtedly qualifies as [a] liberty [interest] which may not be denied without due process of law under the fifth amendment.”

After reciting the details of the verbal encounter between Karem and Gorka, the court notes delves into the 5th Amendment due process problems with Karem's suspension:

Applying that test, we think Karem’s due process claim is likely to succeed because, on this record, nothing put him on notice of “the magnitude of the sanction”—a month-long loss of his White House access, an eon in today’s news business—that the White House “might impose” for his purportedly unprofessional conduct at the non-press-conference event. Gore, 517 U.S. at 574. True, the Acosta Letter set forth “rules governing future press conferences,” but in that very same letter, the White House expressly declined to adopt “specific provisions for journalist conduct in the open (non-press room) areas of the White House” “in the hope that professional journalistic norms” would “suffice to regulate conduct in those places.” Acosta Letter 1, J.A. 693 (emphasis added). What’s more, although the White House made clear that “failure to abide by” the newly articulated press-conference rules “may result in suspension or revocation of the journalist’s hard pass,” it declined to adopt analogous sanctions for unprofessional conduct at non-press-conference events. Id. Instead, the White House stated that “[i]f unprofessional behavior occur[red] in those settings,” then it would “reconsider this decision”—that is, the lack of formally articulated standards and sanctions—not that it would suspend journalists’ hard passes.

Even assuming the Acosta Letter provided Karem some notice of behavioral expectations “in the open . . . areas of the White House,” id., it failed to put him on notice of “the magnitude of the sanction that [the White House] might impose” for his purported failure to heed any such expectations, Gore, 517 U.S. at 574. To the extent Karem’s “irreverent, caustic” attempts at humor (to use the district court’s language) crossed some line in the White House’s view, those transgressions were at least arguably similar to previous journalistic misbehavior that elicited no punishment at all, let alone a month’s exile. Karem, 404 F. Supp. 3d at 215. In the context of a White House press corps described as an “unruly mob,” id. at 214 (internal quotation marks omitted), Karem’s behavior was not so outrageous as to bring into fair contemplation the unprecedented sanction visited on him.

The White House’s arguments to the contrary are without merit.

In rejecting each of the White House's arguments, the appeals court even calls one such argument "absurd."

Finally, raising the specter of the absurd, the White House argues that it cannot be the case that “the Press Secretary would be powerless to take action even were a reporter to ‘moon’ the President, shout racial epithets at a foreign dignitary, or sexually harass another member of the press corps.” Appellants’ Reply Br. 4. But just as “[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,” Hoffman Estates, 455 U.S. at 495, the White House cannot defend the thirty-day suspension here on the ground that some other, egregious conduct might justify the same sanction. And even if the White House could impose that sanction for such egregious conduct consistent with due process, Karem’s behavior as reflected in the preliminary injunction record fell below that threshold. Notions of professionalism are, after all, context-dependent. Cf. Strickland v. Washington, 466 U.S. 668, 693 (1984) (“[A]n act or omission that is unprofessional in one case may be sound or even brilliant in another.”). “[W]ithin the context of such an unruly event” as the Summit, “where jocular insults had been flying from all directions,” Karem, 404 F. Supp. 3d at 215–16, Karem’s statements were not so egregious as to justify suspending his hard pass for thirty days without prior notice.

Of course, the White House was still able to keep Karem suspended for 18 days before the original decision came down, and even this alone might be intimidating to the White House press corps, which was undoubtedly the key reason behind this in the first place.

Filed Under: 1st amendment, 5th amendment, brian karem, due process, press pass, seb gorka

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.

Filed Under: 1st amendment, 5th amendment, brian karem, due process, journalism, press pool, stephanie grisham, white house

White House Suspends Another Reporter's Press Pass, Once Again, Raising 1st Amendment Concerns

from the not-how-it-works dept

As you'll recall, last year, the White House tried to remove CNN reporter Jim Acosta's press pass over a silly made up controversy claiming that he had "assaulted" an intern in trying to hold onto the microphone while the intern had tried to pull it away. CNN sued and a court sided with them in blocking the White House's action. Soon after, the White House released new rules, that we mentioned left them open to future 1st Amendment challenges.

Well, here we are. On Friday, the White House removed Playboy reporter Brian Karem's press pass, claiming it was about some sort of weird yelling match Karem had with ex-Trump official Sebastian Gorka at Trump's silly social media troll summit back in July. Karem immediately said he'd sue over the removal and his attorney Ted Boutrous has sent a series of letters to White House press secretary, Stephanie Grisham over the last few weeks. The opening of the first one lays everything out pretty nicely.

We write on behalf of our client, Brian Karem, who serves as the White House correspondent for Playboy, in response to your August 2, 2019 letter informing of your "preliminary decision" to suspend his hard pass for 30 days, supposedly "due to [his] conduct at the press event in the Rose Garden on July 11, 2019," and giving him one business day to submit a response before you "make a final decision on the matter." We object to this arbitrary and unfair procedure threatening to deprive Mr. Karem of his constitutionally protected liberty and property interests in his hard pass, which would flatly violate the First Amendment and the Due Process Clause and the principles established by the D.C. Circuit's decision in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) and many other cases. Your invocation of the Rose Garden event weeks after it occurred and without any notice whatsoever that you were considering taking action against Mr. Karem is the opposite of due process, and is clearly pretext for punishing Mr. Karem based on his viewpoint and the content of his reporting on President Trump.

It's the "arbitrary and unfair procedure" part of the above quote that is most important. The White House can't just cook up reasons to remove someone if the real reason is they don't like his reporting (as was the case with Acosta).

In a later letter, Boutrous points out that Grisham herself has admitted to not following any basic due process, as required by the 1st Amendment:

Your email of last night revealed that you failed to conduct a reasonable investigation before reaching your preliminary decision. Among other deficiencies, you admit that you did not speak to a single witness. You did not speak to Sebastian Gorka, Jim Hanson, or any of the other individuals who are seen on video taunting and/or threatening Mr. Karem. You did not speak to any of the journalists who were standing alongside Mr. Karem in the press pen and observed firsthand what happened. Nor did you speak to Mr. Karem himself, despite his efforts to speak with you. In fact, you claimed you lack evidence that Mr. Karem made any attempt to speak with you. Enclosed with this letter are emails reflecting his efforts.

You have also elected to ignore publicly-available evidence that Mr. Gorka has trumpeted his confrontation with Mr. Karem, bragging that he took on the "fake news industrial complex," as well as evidence that the President himself viewed the events as humorous. All of this information is highly relevant to your decision, yet you have deliberately chosen to ignore it.

After suggesting that Gorka was the one who initiated and escalated the confrontation, while Karem was the one who sought to de-escalate it, Boutrous also notes the following:

The President himself has used far stronger language and imagery. Among other things, he has tweeted an image of himself wrestling a CNN icon to the ground, and stated that a congressman who body-slammed a reporter is "my kind of guy." He has also urged his supporters to "knock the hell" out of protestors at his rallies, and remarked about one protestor, "I'd like to punch him in the face." If the President's statements cannot reasonably be understood as endorsing or inciting violence, the White House cannot possibly deem Mr. Karem's offer to "go outside and have a long talk" as over the line.

None of this seemed to matter. In the official suspension notice, Grisham insists that Karem's comment to go outside and have a conversation was obviously a threatening statement.

It seems likely that Karem will now sue and we'll get yet another court to weigh in on the process by which the President (any President, not just this one...) can remove press passes.

Filed Under: 1st amendment, brian karem, free speech, jim acosta, press pass, stephanie grisham, ted boutrous