CNN sues President Trump and top White House aides for barring Jim Acosta

a reply to: soberbacchus

From the same ruling
briefings is right in the portion not to be challenged

Nor is the discretion of the President to grant interviews or briefings with selected journalists challenged.

a reply to: shooterbrody

"Nor is the discretion of the President to grant interviews or briefings with selected journalists challenged."

VS.

“White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news gathering under the First Amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons,” Judge Carl E. McGowan wrote for a unanimous three-judge panel.

...

No one has ever challenged a politicians right to selectively grant or deny interviews (one on one) or briefings (more than one journalist)

BUT

Press conferences aka "White House press facilities having been made publicly available as a source of information" are treated differently.

That is why the courts require Due Process when a pass is denied, but a politician needs not offer any reason to refuse questions or interviews from an individual journalist.




NOTE: This is an interesting debate, because we were having it before CNN and Gov showed up in court yesterday and fundamentally that is the case the two sides made and are arguing. The Gov claims the President can pick and choose his reporters to cover the WH as he likes and CNN is making the First Amendment argument.

a reply to: soberbacchus

you forget this case was about an application denied and not a pass removed

No one has ever challenged a politicians right to selectively grant interviews (one on one) or briefings (more than one journalist) BUT

cnn appears to be doing that now

That is why the courts require Due Process when a pass is denied

When the application for a pass is denied

a reply to: shooterbrody

Nothing personal, but we are going circular here.

A revocation is a denial after a pass has been granted. (know you disagree, but haven't heard a good explanation why yet)

A one-on-one interview or briefings is distinct from a press conference in the eyes of the court.

As articulated here (again) "publicly available" being a critical term here (that is where the first amendment arrives) vs. 1 on 1 interview at the President's residence or oval office etc.

“White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news gathering under the First Amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons,” Judge Carl E. McGowan wrote for a unanimous three-judge panel.

a reply to: soberbacchus

A revocation is a denial after a pass has been granted. (know you disagree, but haven't heard a good explanation why yet)

because the judges who issued the ruling in the case thought enough of the distinct difference of the application and revocation to include this line which clearly legally separates the two issues

We have no occasion to consider what procedures must be employed in the revocation, for security reasons, of an already-issued White House press pass

If this is true:

A one-on-one interviews or briefings is distinct from a press conference in the eyes of the court.

Then why does the ruling say interviews or briefings and lump them together as not to be challenged?

These considerations can perhaps be best understood by first recognizing what this case does not involve. It is not contended that standards relating to the security of the President are the sole basis upon which members of the general public may be refused entry to the White House, or that members of the public must be afforded notice and hearing concerning such refusal. The first amendment's protection of a citizen's right to obtain information concerning "the way the country is being run" does not extend to every conceivable avenue a citizen may wish to employ in pursuing this right.18 Nor is the discretion of the President to grantwith selected journalists challenged. It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all. Finally, appellee's first amendment claim is not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.

this last line also kills cnn:

Finally, appellee's first amendment claim is not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.

the white house and potus have clear discretion upon whom they allow in based on the case sited and the case kelly will abide by

no where in that case does it say a single individual reporter will be admitted solely base on first amendment rights, imo it says almost the opposite

originally posted by: shooterbrody
a reply to: soberbacchus

Then why does the ruling say interviews or briefings and lump them together as not to be challenged?

A "public" "press conference" is not an "interview" or "briefing".

Press Briefings are not press conferences. Briefings are when the POTUS or Spokesperson etc. calls a gathering to inform the press of something. No Q&A expected or required.

Press Conferences are public Q&A events open to the Media.

this last line also kills cnn:

.........
Finally, appellee's first amendment claim is not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.

Correct. But once they WH DOES "open its doors to the press, conduct press conferences, or operate press facilities" they may not arbitrarily pick and choose reporters and the 1st Amendment is at play.

That line you site refers to the entirety of "the press", not arbitrary inclusion and exclusion of given journalists.

AGAIN that is what this is saying:

“White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news gathering under the First Amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons,” Judge Carl E. McGowan wrote for a unanimous three-judge panel.

* The WH does not have to have "White House press facilities having been made publicly available as a source of information for newsmen"
But once they do
"the protection afforded news gathering under the First Amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons,”

a reply to: soberbacchus

A "public" "press conference" is not an "interview" or "briefing".

They fall under the same category.

A briefing is when the White House wishes to address a specific issue, and is sometimes followed by a Q&A session that often allows questions on various subjects unrelated to the briefing. A conference is when the White House addresses various issues and then usually opens the floor to a general Q&A session. Both allow the same reporters, as both are in the presence of the President or his staff.

The only difference is the issues which are discussed, and even that difference is not always clearly delineated.

...

But all of the issues you are bringing up are moot at this point in any case. Judge Kelly is not rendering a decision today on the lawsuit. All he is doing is rendering a decision on the motion for a preliminary injunction to restore Acosta's press pass via a temporary restraining order. That is a different animal.

To get a preliminary injunction, a party must show that they will suffer irreparable harm unless the injunction is issued. Preliminary injunctions may only be issued after a hearing. When determining whether to grant preliminary injunctions, judges consider the extent of the irreparable harm, each party's likelihood of prevailing at trial, and any other public or private interests implicated by the injunction. Parties may appeal judge's decisions on whether to award a preliminary injunction.

Source: www.law.cornell.edu...

Where is the irreparable harm in this case? What permanent and unrepairable damage will be done to CNN if Jim Acosta does not get his pass restored right away? There are many additional CNN reporters who have press passes for the White House, so they will suffer no loss of coverage. There will be no precedent set if the order is refused, because the case will still be heard and precedent set then. Jim Acosta will not be fired for lacking a press pass; he is the biggest story CNN has going. Where is the irreparable harm?

TheRedneck

a reply to: soberbacchus

Correct. But once they WH DOES "open its doors to the press, conduct press conferences, or operate press facilities" they may not arbitrarily pick and choose reporters and the 1st Amendment is at play.

Again this is with respect to an application for a pass, and not revoking one.

originally posted by: TheRedneck
a reply to: soberbacchus

A "public" "press conference" is not an "interview" or "briefing".

They fall under the same category.

What I think you are missing is the concept of "public forum".

A one on one interview in the oval office is not a "Public Forum".

The Brady Room's purpose is a Public Forum for journalists.

...

“White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news gathering under the First Amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons,” Judge Carl E. McGowan wrote for a unanimous three-judge panel.
...

originally posted by: TheRedneck
a reply to: soberbacchus


Judge Kelly is not rendering a decision today on the lawsuit. All he is doing is rendering a decision on the motion for a preliminary injunction to restore Acosta's press pass via a temporary restraining order. That is a different animal.

Do I smell backpedaling from your previous certainty that the injunction would be denied?

You are correct, it is just a hearing for injunction, but the Judge must determine if the case CNN is making has a reasonable chance of winning in court in order to issue the injunction. They will not issue injunctions for cases that don't have a reasonable chance. That is why both Gov. and CNN were required to file "briefs".

a reply to: shooterbrody

The Judge just announced he was again delaying a ruling until 10AM tomorrow morning.

No doubt he is buying time for aides to review this thread

a reply to: shooterbrody

The Whitehouse Correspondents Association just filed it's Amicus Brief.

It reads like a more eloquent version of what I have been consistently arguing here.

www.politico.com...

originally posted by: soberbacchus
a reply to: shooterbrody

The Judge just announced he was again delaying a ruling until 10AM tomorrow morning.

No doubt he is buying time for aides to review this thread

no doubt

a reply to: soberbacchus

www.politico.com...

The President’s claim that he has absolute discretion to decide which journalists have access to the White House is foreclosed by Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977). In Sherrill, the court made clear that, regardless of whether the President has discretion to select those journalists to whom he grants interviews, a journalist’s First Amendment rights are implicated by the denial of a White House press pass and a President therefore is not free to deny press passes as he or she sees fit.

i do not disagree with what they put forth and it is covered in the 1977 ruling; however the acosta case is not about an application being denied; it is about a granted pass being revoked. Were acosta presenting his initial application denied they would be correct. That is not the case here.
the 1977 ruling makes a point of stating it does not deal with revoked passes
the 1977 ruling states it does not challenge the presidents discretion with whom he has interviews and briefings
while perhaps more eloquent, imo it is still incorrect with respect to siting the 1977 case and acosta

a reply to: soberbacchus

“White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news gathering under the First Amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons,” Judge Carl E. McGowan wrote for a unanimous three-judge panel.

You keep reposting this... and yet, it demonstrates why there is no case here. I have a minute; let's dissect:

"White House press facilities having been made publicly available as a source of information for newsmen"

An introduction to explain the following statements. It states that the West Wing is a privilege afforded to "newsmen" (or as we say today, reporters) as a source of information.

"the protection afforded news gathering under the First Amendment guarantee of freedom of the press"

This clause introduces the concern surrounding the 1st Amendment's Freedom of the Press, and reiterates its importance. An argument can be made that this phrase prohibits interference with the right of the press to effectively report the press conference without undue influence; in other words, to allow for free reporting. In this case, however, free reporting of the White House press conferences is not an issue. Only one reporter was ejected out of many, and the news organization that employs him (CNN) has several more reporters who are still able to cover the events. Jim Acosta's appearance is simply not a requirement for the public to have access to, or for the press to report freely on, a press conference.

"requires that this access not be denied arbitrarily"

Arbitrary denial is denial without a reasonable cause. If the President were to point at someone arbitrarily and say "revoke their press pass," that would be arbitrary. If the President were to decide that he didn't like someone's face, that would be arbitrary. If the President were to decide that he didn't like Jim Acosta and wanted him barred, that would be arbitrary. In this case, however, Acosta exhibited unique actions that were disruptive to the press conference: he instigated an argument with the President by monologing after having two questions answered, refused several orders by the President to hand off the mic voluntarily, physically resisted an attempt by a White House intern to take the mic back, and in general disrupted the entire proceeding. The proof is that we are here arguing over that one incident that occurred and not even thinking about what else was said during that press conference. That is the very definition of disruption, and the disruption was a unique series of actions undertaken by Acosta of his own accord. That is not "arbitrary" on the part of the White House or President.

"or for less than compelling reasons"

Notice the first word in this part: "or." That means that press privileges can be denied for reasons in either phrase connected by the word. In simpler terms, the reason must either be compelling (as in exhibiting a great need in order to allow proceedings to continue without needless risk of interruption) or they must not be arbitrary. Either is sufficient to warrant exclusion, according to this opinion, from the press conference. It is this phrase which affirms the Secret Service's duty to run background checks on those wishing to obtain a White House press pass; any potential future attempt to harm the President, his family, or White House staff would represent a compelling reason to bar a person from participation.

That's what I have been trying to get through to you: there is no right for Jim Acosta to attend any press conference. There is a right for the press to be freely allowed to report the news as they see it, but no one has interfered with that right; CNN is still reporting openly on the progress of their lawsuit, and the press conference has been shown on every media outlet from here to Kalamazoo. We've all seen it; nothing has been hidden from view.

Now, if Jim Acosta were imprisoned in such a way as to make it appear to other reporters that they might be imprisoned for reporting the news, that would be in violation of the 1st Amendment. If Acosta had not had his outburst, he could not be banned; that would be arbitrary because it would only be a continuation of previously acceptable actions. If all CNN reporters were barred, that could be adjudicated as arbitrary towards CNN since only one reporter had taken actions to get himself banned. But none of those things happened.

To address your next post:

Do I smell backpedaling from your previous certainty that the injunction would be denied?

No. I already posted this same thing several times. I will take that as proof you are not reading what I post.

You are correct, it is just a hearing for injunction, but the Judge must determine if the case CNN is making has a reasonable chance of winning in court in order to issue the injunction. They will not issue injunctions for cases that don't have a reasonable chance. That is why both Gov. and CNN were required to file "briefs".

Correct; there must be a reasonable expectation (not a chance) of winning. There must also be some sort of bond posted to ensure that an injunction that damages the defendant may be corrected. But then there's the problem with irreparable harm. That has to exist as well; an injunction is not a payday loan of a judgement from a court. All of the requirements must exist. The case can be cut and dried obvious, but if there is no irreparable harm, or if the plaintiff refuses to post a bond against damages from the injunction, the injunction is not granted.

Irreparable harm could mean risk of injury or death... it could mean a business could not continue to exist... it could mean someone could wrongly lose their job and become indigent for a long period of time. It does not mean a lack of a restraining order could cost money, or cause mental distress, or violate a Constitutional right even. All of those can be repaired at the time of judgement. Lost monies can be awarded, mental distress can be compensated, and a right can be verified.

If the absence of Jim Acosta from press conferences for the next few months will damage CNN irreparably, as in unable to be made right, then Acosta breaking a leg and being unable to attend would also damage CNN irreparably. That's quite a statement. It's saying that CNN cannot continue to exist without this one reporter. In that case, is CNN even a substantial member of the press any more? They would seem to be doomed to extinction by their own admission, with their very existence totally dependent on one reporter.

I cannot see any court accepting that argument. It is beyond ludicrous.

TheRedneck

originally posted by: TheRedneck
a reply to: soberbacchus

I cannot see any court accepting that argument. It is beyond ludicrous.

TheRedneck

Some very well paid GOP attorneys (the same that represented Pres. Bush in the Florida Recount) that CNN has hired disagree with you and have made essentially the same argument I have in court.

The WHPA has also filed an Amicus Brief directly explaining everything I have been arguing and I don't believe their legal team is "ludicrous".
www.politico.com...

But yes, Red on ATS thinks it absolutely ludicrous anyone would make such an argument.

Rather than re-argue points you don't seem to acknowledge, let's see how a Federalist Society chosen and Trump appointed Judge rules on this in the morning.

And just in case you missed it the last few times I explained it, courts don't rule on rudeness. Rudeness does not qualify as a compelling reason to ban someone from the WH or Trump would be on the corner by now.

With all of minutia of this event, just the statement that a media giant is suing the sitting President of the United States...

whoa........

a reply to: soberbacchus

Lawyers make ridiculous arguments all the time. The weaker a case is, the more ridiculous an acceptable argument becomes. After all, if a reasoned argument is going to lose, one might as well try anything and see if it sticks. Who knows; maybe the judge will buy it. If not, oh, well, we were going to lose anyway...

CNN is trying to get ratings from this. They'll make a ton more cash off of those ratings that they will spend on lawyers making silly claims. The lawyers win because they get paid; CNN wins because they will profit overall; Acosta wins because he's the star of the show and in no danger as plaintiff. Win; win; win.

You did it again though... you apparently read a couple of lines at the beginning and then picked up the one close to the end and used it out of context. Do you really think CNN will be run out business or have their credibility forever destroyed if one reporter named Jim Acosta isn't in a press conference Monday? That is what I called ludicrous, and I stand by that.

Reading... it does a body good.

TheRedneck

I don't understand why the plaintiff is using a case for a denied application for a pass as grounds to apply to a revoked pass. Especially when the judges in said cases said the presidents decision for whom can attend such press functions was not challenged, and the judges in said case also pointed out the case did not deal with revoked passes.

a reply to: shooterbrody

It's usually a good indicator that there are no stronger cases supporting the claim. It's just grasping for straws legally in order to gain in other ways. See my post above.

TheRedneck