3:45pm PT by Eriq Gardner
Judge Orders Trump to Restore Reporter's White House Badge
Brian Karem, a correspondent for Playboy magazine and a regular contributor to CNN, will immediately regain access to the White House. On Tuesday, a D.C. federal judge granted his motion for a restraining order amidst a fight over whether Donald Trump's White House improperly stripped him of a hard pass.
Throughout Trump's term in office, his administration has been hostile to members of the media in the face of unflattering coverage. In many ways, Karem's dispute amounts to the latest test of whether Trump is capable of learning from prior situations, as this is hardly the first time the White House has been sued for taking punitive action towards a reporter. Here, Karem claims that the White House is violating First Amendment rights and, just as importantly, denying him due process.
"Karem has, at this early stage of the proceedings, shown that he is likely to succeed on this due process claim, because the present record indicates that Grisham failed to provide fair notice of the fact that a hard pass could be suspended under these circumstances," states the opinion from U.S. District Court Judge Rudolph Contreras. "Meanwhile, Karem has shown that even the temporary suspension of his pass inflicts irreparable harm on his First Amendment rights. The Court therefore grants Karem’s motion for a preliminary injunction and orders that his hard pass be restored while this lawsuit is ongoing."
Karem's lawsuit centers on what happened in the aftermath of a July 11 "Social Media Summit" where President Trump convened conservative bloggers and social media celebrities. That day, Trump followed the summit by giving prepared statements in the Rose Garden. Karem asked whether the president would take questions. Trump ignored him as some of the attendees began heckling. Karem then remarked, "This a group of people that are eager for demonic possession," which he later characterized as Rodney Dangerfield-style comment that elicited laughs.
But Sebastian Gorka, one of Trump's advisors, wasn't amused, and in the Rose Garden, the two came to odds.
"You’re a journalist, right?” asked Gorka, gesturing sarcastically with air quotes.
"Come on over here and talk to me, brother, or we can go outside and have a long conversation," responded Karem.
"Are you threatening me now in the White House?" asked Gorka.
The insults escalated.
On Aug. 16, White House press secretary Stephanie Grisham notified Karem that his hard pass was being suspended for breaching standards of decorum. 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.
Within days, Karem filed his suit, which has both sides pointing to two past legal situations as being particularly instructive.
In the late 1970s, Robert Sherrill, then a Washington correspondent for The Nation, had his application for a White House pass rejected. Sherrill's search for the reason why and objection to the denial culminated in a victory for him at the D.C. Court of Appeals, which decided that First Amendment rights were implicated in a refusal to grant a press pass and that any refusal "must be based on a compelling government interest." The decision in Sherrill v. Knight faulted the White House for not having a process for press applications that included written notice spelling out reasons for rejection plus opportunity for response.
The second bit of precedent occurred less than a year ago when CNN's Jim Acosta had his own press pass suspended upon a contentious Trump news conference where Acosta refused to give up the microphone. After CNN sued, the White House backed down, restoring Acosta's press pass and advising, "Should you refuse to follow these rules in the future, we will take action."
As a result of the Acosta case, according to the White House, Karem and other correspondents were provided notice that they were expected to abide by “professional journalistic norms” when on White House grounds. Trump's court papers also argue that due process doesn't require the White House to publish explicit, written rules, and that Sherrill doesn't restrict the White House from enforcing standards of professional conduct. According to the White House, there's no First Amendment right to "come onto the White House campus, loudly insult the President’s invited guests, disrupt official events, and even instigate physical confrontations."
At a Aug. 27 court hearing, Judge Contreras was somewhat unsettled by Karem's behavior. Responding to his lawyer's suggestion that Karem had acquitted himself reasonably given the circumstances, the judge said, "I'm not sure I'd go so far to say he dealt with it as best he could."
But to Karem as well as various press groups supporting him in amicus briefs, the White House's explanations for the suspension were unsatisfactory and its move to interfere with his professional responsibilities as a reporter was unconstitutional. They told the judge that "explicit and meaningful standards" were indeed required and that Karem never got fair opportunity to rebut the charge against him. While he was able to respond to notice of the charge that he had been disruptive, Karem complained of not being provided word of the evidence against him including an eyewitness statement from an anonymous Secret Service agent.
Judge Contreras notes in his opinion that Grisham didn't reference the Acosta letter in the decision letters informing Karem that his pass was being suspended. He says that "casts some doubt on whether she thought that the Acosta Letter provided any meaningful notice."
The judge then addresses more fundamental problems with the Acosta Letter. "First, the letter’s language, taken in its entirety, is ambiguous as to whether the White House even intended to regulate events other than formal press conferences," the opinion states.
The opinion also adds that even if the Trump administration had been clear that conduct outside of press conferences could be punishable through revocation of a hard pass, "the standard it provides is 'unnecessarily vague and subject to ambiguous interpretation.'"
Judge Contreras points to standards of civility in courtrooms and contrasts that to the lack of guideposts the White House is putting forward for professionalism among the White House press corps. While the judge does acknowledge that "Karem's behavior was clearly unprofessional in this instance," the judge nods to evidence that White House correspondents has traditionally been an unruly mob — and not even the Acosta Letter signaled any departure from the norm. Adds the opinion, "In fact, the letter could reasonably be read to mean that the pre-existing regime would be maintained for the time being."
Contreras accepts instruction from the Sherrill case that there need not be a detailed articulation of narrow and specific standards, but nevertheless, he cautions that principles should be established in advance. The letter informing Karem that his pass was being suspended articulated more guidance to reporters than the Acosta letter, notes the judge, who carefully adds he's not deciding whether such guidance would be acceptable. In other words, if the White House used the letter suspending Karem to put everyone on notice about what won't be tolerated in the future, that guidance might still not survive legal scrutiny for vagueness or any First Amendment challenge.
While the case is not over, Judge Contreras hands Karem a big victory by pausing his suspension while the case plays out.
It is important to note that this decision explicitly doesn't reach the First Amendment issues at play. Instead, it's Karem's allegation that his due process was violated through a lack of notice about decorum that carries the day. The judge makes no conclusion about whether any of the July 11 guests were constitutionally entitled to misbehave in the Rose Garden.
As the judge puts it, "[C]ontext matters in determining what was deemed acceptable. Taking into account all of the evidence in the present record, the Court cannot conclude that Karem’s behavior was clearly proscribed by the Acosta Letter’s standard, or even by any widely understood standard of 'professionalism' or 'decorum' within the context of such an unruly event."