Appeals Court: White House's Suspension of Press Pass Violates Due Process

Brian Karem -  July 11, 2019 - Getty-H 2019
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Brian Karem has again come up the winner in a legal fight that commenced when the Trump Administration attempted to suspend his press access to White House grounds. On Friday, the D.C. Circuit Court of Appeals affirmed a lower court's injunction by finding that the Playboy correspondent was likely to succeed on the claim that his due process rights were violated.

Karem filed suit after White House press secretary Stephanie Grisham notified him of repercussions for breaching standards of decorum at a "Social Media Summit" last July where President Trump convened conservative bloggers and social media celebrities. At the event, Karem got under the skin of Sebastian Gorka, one of Trump's advisors, and the two exchanged words. A letter informing Karem of the decision detailed his "disruptive and unprofessional behavior," including how he "openly insulted the President’s invited guests" and "verbally accosted" Gorka.

The lawsuit claimed a violation of the First Amendment, but what really ended up winning was Karem's argument that the White House had failed to give him fair notice about its rules of professional conduct.

The D.C. Circuit attempts to stick closely to Sherrill v. Knight, a precedential situation from the late 1970s where a Washington correspondent for The Nation had his application for a pass rejected.

"Forty years on, today’s hard-pass system is little changed from the one described in Sherrill," writes Circuit Judge David S. Tatel.

The opinion relays word that the White House needn't invite members of the press onto its grounds, but after establishing press facilities, protection afforded news-gathering under the First Amendment requires that this access not be denied arbitrarily. Over the years, the White House has taken a hands-off approach to rules for journalists — basically ceding that authority to the White House Correspondents’ Association — but of course, Trump's relationship with journalists has been more contentious.

The White House argued that it provided fair notice of rules in the aftermath of a prior legal battle with CNN correspondent Jim Acosta, but the D.C. Circuit doesn't see enough.

"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,'" states the opinion. "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."

The opinion (read in full here) adds that the White House never made clear the magnitude of the sanction for misbehaving.

Given all this, it won't be surprising if the White House now attempts to lay down some rules of decorum, but in the meantime, it can't suspend Karem.