November 16, 2018

The White House Spat With Jim Acosta Is Not A First Amendment Issue, Julian Assange's Indictment Is One

U.S. media support a questionable First Amendment case when one of the network reporters was rebuked by the White House. They are quiet on another case where the danger to the rights of a free press is much more serious.

On November 9, during a White House press conference with U.S. president Donald Trump, CNN reporter Jim Acosta staged a confrontation. His 'questions' to Trump during the press conference amounted to political statements and personal accusations. The situation escalated when Acosta insisted to make more statement while the president invited other reporters to ask their questions.

The first Acosta statement/question was about the so called caravan of immigrants that traveled through Mexico to the U.S. border. Trump had used it as a boogeyman during the midterm election campaign and had called it an "invasion". Trump answered the question by explaining that he wants immigrants to go through the legal immigration process and to not pass the border illegally. Acosta interrupted Trump's answer and asked a follow up, again in an accusing tone. Trump also answered that second question.

Acosta made another attempt to involve Trump into a political discussion about the issue. The president rejected that by telling Acosta to do his job as reporter while he, Trump, would do his as president. He moved on to the next reporter.

A White House aid got up to fetch the mobile microphone Acosta held in his hand. He more or less pushed her away and tried to ask another question, this time on the "Russian investigation". Trump told him "That's enough. That's enough." Acosta continued to ask. Trump relented and answered the question by saying that the whole "Russia investigation" is a hoax. Acosta tried another question, number five, asking if Trump was worried about indictments in the case. Trump turned away.

Acosta finally gave up the microphone. Trump then told Acosta that he is a "rude, terrible person" and that CNN "should be ashamed" to have him as a reporter.

Trump turned to another reporter to continued the press conference. While the next reporter asked his question Acosta got up again, interrupted the other reporter and again tried to get Trump into a discussion. He failed.

A video of the full exchange is here.

When I watched that segment on that day I found the behavior of Acosta obnoxious and primitive. He, and a few other reporters, did not ask questions to elicit answers, but tried to provoke Trump by making partisan political statements which were only superficially framed as questions. Acosta's behavior was impolite and disrespectful not only towards Trump but also to fellow reporters.

Later that day the White House revoked Acosta's White House 'hard pass' which gives the holder expanded access to the White House. CNN went to court claiming that the revocation violated Acosta's first and fifth amendment rights.

The First Amendment is about free speech. It has nothing to do with a 'right' to enter the White House. Neither does the right to free speech include a 'right' to get invited to press conferences. The Fifth Amendment is, among other things, about due process.

CNN asked the court for a preliminary restraining order against the White House revocation of Acosta's 'hard pass'. It was granted today based on case law related to the Fifth Amendment due process argument. Preliminary orders are not final judgments. They are granted to prevent potential additional damage while a legal case goes on. The court seemed to disagree with the underlying precedence the CNN lawyers had cited:

As [judge] Kelly began to offer his view on the components of CNN's request, he said that while he may not agree with the underlying case law that CNN's argument was based on, he had to follow it. "I've read the case closely," he said. "Whether it's what I agree with, that's a different story. But I must apply precedent as I see it." He left open the possibility that the White House could seek to revoke it again if it provided that due process, emphasizing the "very limited" nature of his ruling and saying he was not making a judgment on the First Amendment claims that CNN and Acosta have made.

The judge seems to thinks that the White House was justified but acted in a too chaotic manner when it revoked Ascota's 'hard pass' without citing rules or regulations. It is most likely that the White House will now create such rules pertaining White House access and press conferences. It will then use those to again limit Acosta's access.

I would be fine with that. The news value of White House press conferences has steadily been going down. That's to some part the fault of the White House press secretary. But it is also to a large part the fault of the press corps and the media who do not ask real questions but are unreasonably hostile and seem to be more interested in creating political strife than in facts. Some disciplinary measure may help to change that.

The Trump administration is doing some horrible stuff in dismantling environmental and legal regulations. Its foreign policy is devastating whole countries. Its fiscal policies are catastrophic. There are many good question that could be asked about these issues, but they no longer come up. Instead the press corp, especially the network reporters, play gotcha and use the press conferences for political stunts.

A number of other media organizations supported the CNN case by filing amicus briefs. That is probably a mistake. The legality of Acosta's case is quite dubious. The more the media engages on his site, the more will the White House push back by creating stricter regulations. These regulations, once they are laid out, will be used against all media. If not by this administration then by the next one.

It would also be nice if these first amendment defenders would take up a real first amendment case instead of the phony Acosta issue.

Julian Assange, the publisher of Wikileaks, has been indicted by the Justice Department for publishing truthful information about illegal and outrageous behavior of the U.S. government and U.S. politicians.

I don't see any of those who defend the obnoxious behavior of Acosta, taking a first amendment stand in the case against Wikileaks and Assange. None of those media, who all reported on and profited from the material Assange published, has filed an amicus brief to his case. The indictment of Assange is a grave threat to press freedom. Where are the editorials defending him?

Posted by b on November 16, 2018 at 19:43 UTC | Permalink

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