Judge orders White House to reinstate Acosta’s press credentials

After the ruling the White House said it will abide by a federal judge’s order to restore CNN reporter Jim Acosta’s press pass, but insisted “there must be decorum at the White House.”

Kelly said he has not determined if the First Amendment was violated in this case. Instead, he said Acosta and his employer have shown they are likely to succeed in their argument that their Fifth Amendment rights to due process were violated by the White House.

Under the D.C. Circuit Court of Appeals decision in Sherrill v. Knight, Kelly said the government must provide Acosta due process if it is going to revoke his press pass.

In that 1977 ruling, the court said journalists must at least be given notice and a chance to rebut the government’s decision to revoke their credentials.

In court Friday, Kelly said the government couldn’t even tell him who made the decision to revoke the pass. He said Trump’s comments to Acosta at the press conference could not have put Acosta on notice that his pass would be revoked.

In a brief statement to the press outside the courthouse, Acosta thanked Kelly for his ruling.

“I want to thank all of my colleagues in the press who supported us this week and I want to thank the judge for the decision he made today,” he said. “Let’s go back to work.”

The White House revoked Acosta’s pass last week after a contentious exchange with Trump during a televised press conference the day after the midterm elections. The cable network argued that the Trump administration’s move violated the First Amendment rights of both CNN and Acosta.

 

The courtroom showdown overseen by Kelly could have a grave effect on journalists’ rights to access the White House and cover the administration.

 

CNN and Acosta argued that the president revoked the credentials because he didn’t like the questions Acosta was asking. The government countered that Acosta’s credentials were revoked for grandstanding and refusing to surrender the microphone to a White House intern so that another reporter could ask a question.

 

When Acosta held on to the microphone at the Nov. 7 press conference, Trump called him a “rude, terrible person.”

 

{mossecondads}“You shouldn’t be working for CNN,” he said, later adding, “When you report fake news, which CNN does, a lot, you are the enemy of the people.”

 

After the press conference, White House press secretary Sarah Huckabee Sanders accused Acosta of “placing his hands” on the White House intern and cited the incident as the reason for why his media access was being revoked.

 

At Wednesday’s courtroom hearing, Kelly pressed the government on the accuracy of Sanders’s assertion that Acosta had placed his hands on the intern.

 

In court Friday, Kelly said the White House’s characterization was likely untrue.

 

Without credentialed access to the White House or Trump on the road, CNN argued, Acosta can’t do his job.

 

Justice Department lawyer James Burnham said in court Wednesday that the president has broad discretion to choose who gets access to the White House. He argued that White House events are televised and Acosta could cover the press conference via the livestream.

 

CNN’s attorney, Theodore Boutrous, said it’s a fundamental misconception to think Acosta could cover Trump by watching him on TV.

 

While CNN has 50 reporters with hard passes to the White House, Kelly said Friday that sending another reporter does not make the harm Acosta has suffered any less irreparable.

 

Kelly signaled during Wednesday’s hearing that he might try to find a compromise, asking both parties if there was a less-restrictive way that the White House could have reprimanded Acosta, perhaps by letting him keep his pass while prohibiting him from press conferences.

 

Boutrous said that was a possibility.

 

“Rudeness is not a standard,” he said on Wednesday. “If it were, no one could have gone to the press conference.”

 

The Reporters Committee For Freedom of the Press (RCFP) and the White House Correspondents’ Association filed friend of the court briefs arguing on CNN’s behalf.

 

The RCFP reiterated the network’s argument that the government’s retaliatory action against Acosta will have a chilling effect on the media given Trump’s threat that there “could be others” who lose their credentials.

 

“In forcefully and unflinchingly questioning the President, Acosta was engaged in precisely the kind of constitutionally protected newsgathering and questioning of the government that the First Amendment safeguards and upon which our democracy depends,” the group argued in its brief.

 

Boutrous told reporters after Friday’s proceedings that CNN is going to work with the White House to come up with a better standard going forward for the revocation of credentials.

 

“It’s a temporary order, so we’re going to get the pass back now and he’ll be back reporting the news today,” he said of Acosta.

 

Kelly’s ruling Friday gives Acosta his credentials back for now while the parties argue over a preliminary injunction to restore Acosta’s credentials while the case is being litigated. Temporary restraining orders typically last for 14 days.

 

In a statement, White House Correspondents’ Association President Olivier Knox lauded the decision.

 

“The White House Correspondents’ Association welcomes today’s ruling, in which a federal judge made it clear that the White House cannot arbitrarily revoke a White House press pass,” Knox wrote. “We thank all of the news outlets and individual reporters who stood up in recent days for the vital role a free and independent news media plays in our republic.”

 

“This was a test and we passed the test,” Acosta said during brief comments to reporters.