New White House Press Conference Rules Leave Door Open To Future Challenges

from the doesn't-change-much dept

As you've likely heard by now, the Trump administration has restored Jim Acosta's hard pass for media briefings, and CNN has accordingly dropped its lawsuit, returning the battle between Trump and the media to cold-war-status for the time being. But the White House also took the opportunity to issue new rules for its press conferences which, rather than truly addressing any of the issues that formed the basis of the lawsuit, appear to leave the door wide open for future abuses by Trump and challenges by the press:

(1) A journalist called upon to ask a question will ask a single question and then will yield the floor to other journalists;

(2) At the discretion of the President or other White House official taking questions, a follow-up question or questions may be permitted; and where a follow up has been allowed and asked, the questioner will then yield the floor;

(3) “Yielding the floor” includes, when applicable, surrendering the microphone to White House staff for use by the next questioner;

(4) Failure to abide by any of rules (1)-(3) may result in suspension or revocation of the journalist’s hard pass.

Basically, the White House seems to be setting itself up with the absolute bare minimum framework that it could kinda-sorta claim constitutes viewpoint-neutral due process the next time it wants to kick out a reporter. Functionally the rules don't seem to change much, since who gets the floor at White House press conferences has always ultimately been at the discretion of the person at the podium, but this formalizes the threat of pass revocation for those who don't play nice enough for Trump's tastes. Though many reporters are (rightfully) speaking out against the clear anti-press tone of the rules, and (correctly) pointing out that followup questions are one of the most critical components of good journalism, the reality is that this just puts things in a holding pattern until the next time Trump kicks someone out.

For one thing, the rules don't actually address any of the due process requirements set out in Sherrill v. Knight and expanded on by the judge's TRO restoring Acosta's pass, so the entire fifth amendment question still falls to how these rules get enforced:

The court in Sherrill held that this process must include notice, an opportunity to rebut the government's reasons and a written decision. And ... although the court in Sherrill did not have occasion to address it, when an important interest is at stake and when the government is able to provide this process before deprivation, it generally must do so.

Moreover, simply stating that the president has discretionary power doesn't eliminate the first amendment issue. Again, it will come down to how that power is used — specifically, whether it's used for viewpoint-based discrimination. If there is another incident and another legal challenge, these rules won't change much, and something like CNN's initial first amendment argument could easily still apply:

Defendants' justifications for impeding Plaintiffs' First Amendment rights are hollow and hardly sufficiently compelling to justify the indefinite revocation of Acosta’s White House credentials. Consequently, the only reasonable inference from Defendants’ conduct is that they have revoked Acosta's credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs' exercise of protected First Amendment activity.

The sole justification for Defendants’ conduct is their dislike for Plaintiffs’ coverage of the administration and critique of the President. But that is insufficient to justify such a substantial restriction on Plaintiffs’ First Amendment rights.

Meanwhile, in the full statement laying out the new rules, Sarah Sanders laments that they were created with "a degree of regret" and are only necessary because they can tragically no longer rely on "a set of understood professional norms."

If only they cared so much about presidential norms.

Filed Under: due process, fifth amendment, first amendment, jim acosta, journalism, sarah sanders, white house
Companies: cnn