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.

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


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  1. identicon
    Baron von Robber, 11 Jun 2020 @ 2:03pm

    Trump missed Gorka
    "I could hear the goosestepping in the hallways and I knew, "That's Gorka"' - DJT

    reply to this | link to this | view in thread ]

  2. icon
    Anonymous Anonymous Coward (profile), 11 Jun 2020 @ 2:22pm

    Easy out

    The White House has a simple solution at hand, revoke all press passes, then reissue them to sycophants, ass lickers, stenographers, brown nosers, died in the wool trumpets, Fox News, Breitbart, InfoWars, and Onan (did I leave anyone out?). Then make a rule that none of them can be in the White House for more than 10 minutes before or after official press conferences.

    That that behavior would do violence to the concept of the Fourth Estate means nothing to them because anything anyone else says is 'fake news' anyway. I would also wager that many current press pass holders would get a new one under these rules.

    /s

    reply to this | link to this | view in thread ]

  3. This comment has been flagged by the community. Click here to show it
    identicon
    Donald Trump, 11 Jun 2020 @ 2:52pm

    I'll do what I want!

    I have all the power to do anything. All the power. And it's great. I can do great things with my power. It's going to be tremendous. Tremendous. I'm going to triple law enforcement's budget. We're going to hire many, many more cops. And we're going to equip them in military gear and train them to protect the great citizens of the United States of America from all those leftist terrorists. They need to be stopped.

    reply to this | link to this | view in thread ]

  4. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 11 Jun 2020 @ 3:13pm

    Re: revoke all press passes

    ... you say that in jest, but it highlights the central question here, completely avoided by the DC Court of Appeals.

    Does the White House have any inherent discretionary authority whatsoever over press/journalist physical access to the White House compound ??

    Obviously, any President has such executive authority and ultimately controls all access to the WhitHouse at his personal discretion.

    There's absolutely no Constitutional requirement to hold any White House press conferences or let any journalist through the door.
    The vast majority of American journalists are barred from the White House, with no formal judicial process required or employed. No court ever objected to this.

    The activist DC Court judges simply invented a new "right" under the penumbra of 1st/5th Amendment granting Washington based journalists access to White House press conferences unless undefined "compelling reasons" formally justified exclusion.

    reply to this | link to this | view in thread ]

  5. icon
    Thad (profile), 11 Jun 2020 @ 3:20pm

    Re:

    Or Bannon. Or Miller. Or...

    reply to this | link to this | view in thread ]

  6. icon
    That One Guy (profile), 11 Jun 2020 @ 4:01pm

    That horse isn't dead, it's glue

    Oh look, the exact same argument/strawman that's been brought up every time the subject has come up, who ever could have seen that coming...

    The WH is not obligated to host press conferences, but since they have decided to do so they aren't allowed to punish someone for speech related reasons without a damn good reason, nor are they allowed to punish someone arbitrarily or without due process. This really isn't a difficult concept to grasp and yet for some strange reason it keeps being brought up as though repetition is what makes an argument a good one.

    reply to this | link to this | view in thread ]

  7. identicon
    bobob, 11 Jun 2020 @ 5:13pm

    Personally, I think the entire whitehouse press crew ought to just boycott the briefings and stop giving trump a platform to spread bullshit.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 11 Jun 2020 @ 5:48pm

    Re:

    Oh fuck yes! That would be amazing!

    reply to this | link to this | view in thread ]

  9. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 12 Jun 2020 @ 1:46am

    Capital Hill Free Zone Invites You to Visit! No Mask Required!

    reply to this | link to this | view in thread ]

  10. icon
    PaulT (profile), 12 Jun 2020 @ 2:46am

    Re:

    "Personally, I think the entire whitehouse press crew ought to just boycott the briefings and stop giving trump a platform to spread bullshit."

    That won't happen. It would, however, ensure that only the sycophants and propaganda outlets tied to the president are able to report first hand on the briefings.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 12 Jun 2020 @ 6:42am

    Re: Re: revoke all press passes

    The short answer is that if they do have general press conferences etc., they have to make them open to journalists fairly (and definitely not selecting on speech-related grounds or other protected aspects). They can choose not to hold press conferences and instead just give interviews to selected journalists, but that would reduce their reach. They could also put out pre-recorded videos, which would also be less effective than a proper press conference (and much less effective at blocking up time on the news networks than Trump's insanely long press conferences).

    The other workaround to try would be for Republican party officials give interviews in that capacity, even if they just happened to have a day job in the public service.

    reply to this | link to this | view in thread ]

  12. icon
    bhull242 (profile), 12 Jun 2020 @ 11:19am

    Re: Re: revoke all press passes

    From the opinion:

    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.”

    reply to this | link to this | view in thread ]

  13. icon
    Scary Devil Monastery (profile), 15 Jun 2020 @ 2:41am

    Re: Re: revoke all press passes

    "There's absolutely no Constitutional requirement to hold any White House press conferences or let any journalist through the door."

    Here's where the difference between private and public property exists.

    No, the white house is not obligated to host press conferences. Once it does, however, those press conferences are part of the public interest. The same way Trump's personal twitter feed is considered official government communications.

    "The activist DC Court judges simply invented a new "right" under the penumbra of 1st/5th Amendment granting Washington based journalists access to White House press conferences unless undefined "compelling reasons" formally justified exclusion."

    False. The Supreme Court made a judgment that once the white house decided to open that floor, that floor was like any other government communication - not subject to the individual whims of the white house press secretary or the president.

    And in a nation not struck by the idea that the president should be able to cherry-pick which herald gets to proclaim his glory, no one would be arguing otherwise.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 16 Jun 2020 @ 8:27am

    I thought this guy's press pass was revoked for trying to start a physical fight with Gorka, not just mocking him. Isn't he the one who said "let's take this outside" or something similar? A challenge to a fistfight.

    Or is this a different guy?

    We've all seen the video; he definitely was issuing a challenge to step up and physically fight - so don't bother with "oh, that's not what he meant" - I'm only asking if it was a different guy.

    If it was the fistfight guy, it wasn't "mocking", and there's no argument that an entity has a right to kick a potentially violent person off it's property and deny future visits.

    reply to this | link to this | view in thread ]


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