Acosta Ruling Delayed Amidst Confusion and Conflation of Issues
Revocation Probably Unconstitutional, Even Absent a First Amendment Right
The President's lawyers have argued that "no journalist has a First Amendment right to enter the White House"; "plaintiffs attempt to claim harm from an alleged First Amendment violation"; "for if Mr. Acosta were simply a member of the public, it would be clear that he has no First Amendment right of access to the White House complex"; etc., as if a lack of a First Amendment right to a press pass negates any Due Process claims.
But the Due Process clause, which requires that no person may be deprived of an interest in the nature of either liberty or property without some kind of hearing, applies to many interests which clearly enjoy no constitution protection at all, including, for example, not being arbitrarily expelled from college, not being suspended even briefly from grade school, not being fired from certain jobs, etc., notes Banzhaf.
Indeed, the D.C. Circuit Court of Appeals which oversees Kelly has ruled, in very similar case in which a reporter was likewise deprived of his press pass, that Robert Sherrill had a liberty interest of which he "may not be deprived without due process of law."
Since courts have expanded the definition of a liberty interest very dramatically since that time, it is clear that Acosta has at the very least a liberty interest - and perhaps, under more recent court decisions, also a property interest - in retaining his press pass, and he cannot be deprived of that interest without the procedural protections required by Due Process.
For that reason, Judge Kelly on Friday could grant Acosta the temporary relief he is initially seeking without deciding any First Amendment issues, simply by ruling that his press pass represents a liberty (and/or property) interest of which he cannot be deprived arbitrarily, and without whatever procedural protections are required by Due Process in this particular situation.
Acosta could also succeed on a First Amendment claim, even if he and other journalists may have no constitutional right to be in the White House, to attend press conferences, etc., explains Banzhaf.
Even if the First Amendment does not require the President to have press conferences, admit reporters to the White House, etc., it does provide that, if he does grant these privileges to some reporters, he cannot revoke the privilege for reasons clearly prohibited by the Constitution.
So, for example, although the President might constitutionally be able to completely do away with White House access, if he does permit some reporters to attend, he cannot revoke or limit that access based upon constitutionally protected factors such as race or religion.
Similarly, for First Amendment reasons, he cannot do so based upon the statements individual reporters may make, since such content-based discrimination is clearly prohibited by the Constitution, even if the interest of which they are being deprived is not constitutionally protected.
For example, while the dean of a public college may require some students to take a required class scheduled for 8:00 AM, rather than a more convenient session scheduled for 10:00 AM, he cannot constitutionally remove a student from the 10:00 AM class just because he finds out that he is Jewish or Muslim, or because the student expressed political views to which the dean objects, even though there is clearly no constitutionally protected right not to be in an early morning class.
This rather clearly stated constitutional principle - that one cannot be deprived of a protected interest without being given Due Process, or because of the content of one's statements, even if the interest itself is not constitutionally protected - appears to be directly contradicted by the position taken in this case by White House lawyers.
Thus, Justice Department attorney James Burnham said that it would be perfectly legal for the President to revoke a journalist's credentials if he didn't agree with his reporting. He made this claim under Kelly's questioning, when he was asked to state the President's position in this hypothetical situation.
The judge asked if the White House could essentially tell any individual journalist, "we don't like your reporting, so we're pulling your hard pass." Burnham replied, "as a matter of law... yes."
So if it is eventually determined that the press pass was denied because Trump didn't like Acosta's reporting and/or questions, the court could find that to be a constitutional violation of his Free Speech rights, without getting involved in more difficult constitutional issues about the extent to which journalists have First Amendment rights to be in the White House, to attend press conferences, etc.
As a result, neither side may be happy Friday, suggests Banzhaf.
Kelly could side with Acosta and rule that he has a strong case of being deprived of Due Process even if he has no general First Amendment right to a press pass.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
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