President Donald Trump will win the lawsuit that CNN filed against him on Tuesday after the White House revoked Jim Acosta’s press pass, both because the Constitution does not allow a federal court to issue this kind of order to the White House and because the First Amendment does not protect what Acosta did.
Americans were astounded on November 7, when instead of sticking with questions, Acosta chose to argue with the president in the East Room of the White House over the political and policy implications of illegal aliens attempting to enter this country.
The situation got ugly when Acosta physically tussled with a young female staffer, over whom he had a significant advantage in size and strength, refusing to physically unhand the microphone – which it should be noted is the property of the U.S. government, not anything to which Acosta has a personal right of possession. Following that disturbing episode, the White House suspended Acosta’s press credentials.
CNN and Acosta responded by filing a federal lawsuit in Washington, DC, alleging violations of the Constitution’s First Amendment and Fifth Amendment. The plaintiffs are suing President Trump, various White House officials like chief of staff John Kelly, White House press secretary Sarah Huckabee Sanders, and two officers from the U.S. Secret Service: director Randolph Alles, and the unnamed agent who actually took the pass from Acosta.
This lawsuit hinges on a 1977 precedent from the U.S. Court of Appeals for the D.C. Circuit, Sherrill v. Knight.
CNN and Acosta will lose this lawsuit.
The D.C. Circuit was a liberal court in 1977, and the Supreme Court at the time was moderately liberal. All sorts of decisions from the Supreme Court at the time, from creating a constitutional right to abortion in Roe v. Wade to misinterpreting the Establishment Clause into a wrecking ball against people of faith in Lemon v. Kurtzman, were stark departures from the original public meaning of the Constitution.
Those days are over, as America today has what may be the most conservative Supreme Court since 1934. And there is no Supreme Court precedent on point here, so no precedents need to be overruled to get this right.
A key issue the D.C. Circuit never considered is that this sort of lawsuit should be dismissed under the political-question doctrine. In Baker v. Carr, the Supreme Court in 1962 identified six factors of political cases that cannot be decided by the courts.
One Baker factor is that a federal court cannot decide the matter “without expressing lack of respect due coordinate branches of government.” The White House is the president’s house. He lives there and sleeps there. Yes, it has offices, but the White House is not a department; it is not an agency created by Congress and subject to standard congressional oversight. It is, instead, the residence of the independently elected head of state, and those who work there do so as part of his household staff.
CNN and Acosta are asking a federal judge to give the president orders concerning whom he must allow into his home. The executive branch is a separate, coequal branch from the judicial branch. It would be as much of an insult for a federal judge to tell the president that he must allow someone into his living room as it would be for the president to order the Supreme Court regarding whom the justices must allow into their courtroom.
Relatedly, another factor is that the matter is “of a kind clearly for nonjudicial discretion.” Each branch of government has the discretion to determine the sort of atmosphere it wants for its public events and to give passes consistent with that discretion. Judges can exercise discretion regarding proper decorum in their courtrooms and can eject disruptive occupants from the courtroom, just as the House and Senate have discretion regarding the Capitol building. The president has at least that much discretion regarding his own house.
The political-question doctrine assumes that there may be instances where a person’s rights are violated, but where federal courts, nonetheless, lack jurisdiction to decide the matter. But in this instance, no one’s rights are violated.
This is not about the ability of a reporter to cover the president. Acosta can do that from outside of the White House. Nor is it about banning a media outlet. CNN has reportedly approximately 50 employees with White House passes, including perhaps a half-dozen reporters or more.
This is, instead, Acosta’s demand to enter the house of the President of the United States to argue with him on national television and refusal to relinquish a government microphone when told to do so. It is also about CNN’s demand that as a corporation it has the right to send in one particular antagonist to confront the president to his face, when it has multiple reporters it could send in Acosta’s place.
Because the D.C. Circuit never ruled on the jurisdictional question, Judge Kelly of the U.S. District Court for the District of Columbia should be free to dismiss this case on political-question grounds. If not, then after an appeal to the D.C. Circuit, the Supreme Court should dismiss this case under that doctrine.
But even if the district court allows the suit to proceed, President Trump and the White House should win on the merits.
No constitutional rights are absolute, including free speech. The First Amendment does not give you the right to falsely shout “Fire!” in a crowded theatre or to lie under oath in a courtroom or to impersonate a police officer or to engage in defamation or fraud. Those are all forms of speech, but they are not protected speech.
This is not discriminating on the basis of a speaker’s content or viewpoint. Instead, it is content-neutral regulation on the time, place, and manner of speech. It is an assertion that a reporter does not have the right to argue with the president (1) in the White House, (2) during a televised event, (3) with a grossly disrespectful tone, and (4) to physically resist a young female staffer who attempts to reclaim the government property in the reporter’s hand.
Such content-neutral speech regulations are subject to “intermediate scrutiny,” under which the First Amendment allows the government’s action as long as it is significantly related to an important (if not compelling) public interest. That standard is satisfied here.
CNN and Acosta are also asserting a violation of the Fifth Amendment Due Process Clause, claiming they have a constitutional right to advance notice of what the White House would do and a written explanation of why the White House did it.
No, they do not. The Due Process Clause asserts that no person shall be deprived of “life, liberty, or property without due process of law.” They have no “right” to enter the White House to harass the president. An explanation is always nice to have, but it is not constitutionally required here.
The plaintiffs’ final lawsuit count is under the Administrative Procedure Act (APA). That, too, should fail. This is a purely discretionary decision on the part of the White House. It should not be subject to APA review in court. It is also not “arbitrary and capricious” under the APA. The White House made clear what sort of reasonable, objective standard Acosta’s conduct violated. Finally, because the White House is not violating the First or Fifth Amendments, its action is not “contrary to law.”
Moreover, the Secret Service is not actually making a policy determination here. It, instead, merely executes the ministerial duty of dispensing passes when the applicant poses no security threat to the president. These other considerations relevant to this situation are White House determinations, not Secret Service.
For all those reasons, the government did not violate the APA.
This is an interesting lawsuit to legal academics, and it is politically intriguing, but it should not be a close case in the courtroom. The actions of President Trump, his White House, and the U.S. Secret Service are fully consistent with law.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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