What Did the Judge Really Say in the Acosta Decision?


(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.’”

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