What Did the Judge Really Say in the Acosta Decision?

13
1332

(Photo: Gage Skidmore/Flickr/cc)

It’s not quite what we’ve read in other media. First, it is of course objectionable that a court would involve itself in what is so obviously the White House’s decision. It also seems notably odd that the Judge was a Trump appointee.

Surprisingly, The NY Times sheds the most light on Judge Timothy Kelly’s decision in CNN’s lawsuit to restore reporter-propagandist-provacateur Jim Acosta’s press pass. Apparently, the Times was the only media source willing to pay the court for a transcript, as there is no online transcript.

Judge Kelly’s decision is not as crazy as it first appeared, in less complete coverage of the decision. For example, the judge said:

“‘I want to emphasize the very limited nature of this ruling,’ he said, saying that it was not meant to enshrine journalists’ right to access. ‘I have not determined that the First Amendment was violated here.’” It’s also a temporary decision, with a hearing on the merits to come in 14 days. Apparently, a future decision on the merits may well be a total smackdown of CNN:

“During the hearing, Judge Kelly appeared to agree with the argument put forth by the administration’s lawyers that the First Amendment did not guarantee a right to enter the White House campus.

“’I have no quarrel with that,’ the judge said, adding that the president ‘might not call on Mr. Acosta ever again.’”

This view was also put forth by One America News Network in an amicus brief, which opposed CNN’s suit—unlike Fox News, whose brief supported CNN.

Mr. Acosta’s continual interruptions, unnecessary and excessive consumption of time with narratives of his personal beliefs and viewpoints and otherwise self-serving and obstructive conduct toward his colleagues, the White House and the press briefing process evinces a singular motive and desire to be heard and have his views broadcast.
While this narcissistic approach may serve Plaintiffs’ self-interests as entertainers or media figures and the network that profits therefrom, they do not serve the interests of the forum or the other participants in the White House briefing process and are not constitutionally protected.
Simply put, Plaintiff Acosta has no constitutional right to appear on television and broadcast his viewpoints on behalf of Plaintiff CNN under the circumstances presented in this case and Plaintiff Acosta’s exclusion from participation by this non- public forum is reasonable. See Arkansas Educ. Television Com’n v. Forbes, 523 U.S. 666 (1998)

The NY Times continues: “In arguing for the return of Mr. Acosta’s credentials, CNN cited a case from the 1970s that required the White House to demonstrate a clear process, and right of appeal, before revoking a reporter’s credentials.”

Thus, the judge merely addressed the lack of due process—a common element in many court decisions.

Judge Kelly wrongly criticized the administration for the WH’s claim that Mr. Acosta had placed his hands on a White House intern during the news conference. The judge called it “likely untrue and at least partly based on evidence of questionable accuracy.”

Here, he’s responding to leftist media’s charge that Sarah Sanders had tweeted a “doctored” video from Alex Jones showing the incident. We’ve all since seen other videos that clearly show Acosta swatting away the intern’s arm as she tried to retrieve the microphone. Surely, one of the Administration’s lawyers could have shown the judge the video on a cell phone?

The NYT also reports the White House’s response to the decision:
After the ruling, the White House press secretary, Sarah Huckabee Sanders, said her team planned to ‘develop rules and processes to ensure fair and orderly press conferences in the future.’

“’There must be decorum at the White House,’ she added.”

“In the Oval Office on Friday, Mr. Trump told reporters that any new regulations for press access would focus on ‘decorum,’ though he kept the definition vague.

“’You have to act with respect,’ the president said. ‘You’re at the White House, and when I see the way some of my people get treated at press conferences, it’s terrible.’”

“Mr. Trump suggested that he might cut back on his public appearances if White House correspondents failed to follow the rules. ‘We’ll just leave, and then you won’t be very happy, because we do get good ratings,’ he said.

“As for Mr. Acosta’s getting his badge back, the president tried to show nonchalance.

“’It’s not a big deal,'” he said in an interview with the ‘Fox News Sunday’ anchor Chris Wallace. ‘And if he misbehaves, we’ll throw him out.’”


PowerInbox
0 0 votes
Article Rating
Subscribe
Notify of
guest

13 Comments
Newest
Oldest Most Voted
Inline Feedbacks
View all comments
Albert Moore
Guest
Albert Moore
5 years ago

I think I saw a report that CNN dismissed this lawsuit. If so, Mr. Acosta might never attend a White House press briefing again. Contumacy has its costs.

1gandydancer
Guest
1gandydancer
5 years ago

The author quotes this from the NYT without comment: “In arguing for the return of Mr. Acosta’s credentials, CNN cited a case from the 1970s that required the White House to demonstrate a clear process, and right of appeal, before revoking a reporter’s credentials.”

This is wrong. RInitial issue, not revocation after well-documented bad behavior, was the issue in Sherrill. https://openjurist.org/569/f2d/124/sherrill-v-h-knight And I don’t recall a right of appeal either — just a right to a a reason, a response, and a written final response to the response, the adequacy of which might presumably be taken to court. But no in-process appeal.

Ignominious
Guest
Ignominious
5 years ago

Regardless of the expressed limits on this decision it is still an egregious over reach from the judicial branch into the executive. The judicial has NO constitutional authority to tell the executive how to conduct internal business.
Remember, the courts rely on precedent to make their decisions; this is a dangerous precedent that cannot be allowed to stand. Trumps inaction threatens all of us.

Albert Moore
Guest
Albert Moore
5 years ago
Reply to  Ignominious

Nice point.

Otis Campbell
Guest
Otis Campbell
5 years ago

What would a federal judge do if Acosta “challenged” him in his courtroom and argued and wouldn’t shut up when judge told him to and refused to give up mic when bailiff tried to retrieve it? Asking for a friend. And for half of America.

Albert Moore
Guest
Albert Moore
5 years ago
Reply to  Otis Campbell

Good rhetorical question.

1gandydancer
Guest
1gandydancer
5 years ago
Reply to  Otis Campbell

It’s called “contempt of court”. But courts are a higher authority than Presidents, haven’t you noticed?

Albert Moore
Guest
Albert Moore
5 years ago

This is a superb article, which seems to have been written by a lawyer. Is it THE Bob Bennett, Robert S. Bennett, one of the greatest political lawyers of the District? If so, he must be up in years, nearly as old as I am.
It’s not odd that the Honorable Timothy Kelly, a Trump appointee, did not slavishly adopt Trump’s position. He might in fact have made it a point to issue an order against Trump to emphasize that he’s independent, by golly, by golly. An Obama non-judge (not appointed by a President) probably would have adopted the position of the queer communist Quisling pretender d.o.b. 4 August 1961 and imposed sanctions on the adversary.
When I was in active practice, back in the last century of the immediately preceding millennium, I filed the first action under the Telecommunications Act in the Western District of Missouri and got a temporary restraining order on behalf of Albert Cinelli’s Quest Communications, largely on the strength of the testimony of his son John. The judge was independent as a hog on ice and as I recall the order did not ripen into a preliminary injunction. The parties were forced into court-supervised arbitration after a flurry of acrimonious filings in which I drew upon my vast store of malediction. Don’t recall the issues, but the arbitrator remarked upon the number of adjectives in the pleadings. My vocabulary rivaled that of my veddy veddy extremely distant English cousin Eddy de Vere, who wrote for the Court of Liz the First under the nom de plume Shakespeare (after the goddess of theater, invariably portrayed shaking a speare). Finally, the matter was settled by an arbitration judgement that satisfied neither side.
Abilio James “Jim” Acosta d.o.b. 17 April 1971 is a strange duck indeed. He’ll probably never grow up. No telling quite how the case will turn out, but Mr. Bennett renders signal service by focusing on Judge Kelly’s actual words, “‘I want to emphasize the very limited nature of this ruling,’ he said, saying that it was not meant to enshrine journalists’ right to access. ‘I have not determined that the First Amendment was violated here.’”

1gandydancer
Guest
1gandydancer
5 years ago
Reply to  Albert Moore

I had the same thought. But click on the author’s name. Different guy.

That Bennett has a podcast, though. Maybe it’s a radio show, but it’s anyway on Ricochet. He’s probably commented on this.

1gandydancer
Guest
1gandydancer
5 years ago
Reply to  Albert Moore

Trump nominated him, but I assume Leonard Leo picked him. Handing over judge and Justice picking to the GOPe/Federalist Society has results like this:”The judge called [the claim that Acosta placed his hands on the intern] “likely untrue and at least partly based on evidence of questionable accuracy.”” We know CNN submitted Ex. 28 (Associated Press Video Clip), as well as Ex. 38 (S. Sanders Tweeted Video Clip), so, wtf? I mean you can argue with the plural, but even a one-handed man can commit “laying on of hand[s]”.