Why the Constitution bars Trump from retaliating against Jim Acosta

November 13, 2018
By Bruce D. Brown & Joshua A. Geltzer
 
Bruce D. Brown is executive director of the Reporters Committee for Freedom of the Press and formerly co-director of the First Amendment Clinic at the University of Virginia Law School. He previously was a journalist and a partner in the Washington office of Baker & Hostetler.
 
Joshua A. Geltzer is executive director and visiting professor of law at Georgetown's Institute for Constitutional Advocacy and Protection. He previously served as senior director for counterterrorism and deputy legal advisor at the National Security Council and, before that, as counsel to the assistant attorney general for national security.
 
Pointed questioning of our elected representatives is at the heart of our Constitution's First Amendment and its protection of "freedom . . . of the press." It's what White House correspondents have been doing for decades. And it's what cost one reporter, Jim Acosta of CNN, his White House security credentials (often called a "hard pass," and a prerequisite for him to do his job). That's governmental retaliation for constitutionally protected speech —and it's why we're supporting a court challenge to the White House to prevent our government from doing what autocrats do around the world: punish their critics using the levers of government power.
 
The incident at last Wednesday's press conference that led to this situation has now been viewed online millions of times, and the facts are not in serious dispute. Acosta asked President Trump a series of questions. Those questions and the tone in which they were presented clearly and visibly angered the President. Just hours later, Acosta's credentials were revoked.
 
The White House at first dissembled about the reason for this action, falsely claiming that the revocation was based on Acosta's interaction with a White House intern as she tried to take the microphone. But the video evidence offered to support that justification had been altered, as the White House itself has now acknowledged. The truth is that Acosta's credentials were stripped because Trump doesn't like him and the way he does his job. Acosta, in the President's words, is "a rude, terrible person." It was retaliation, plain and simple.
 
To be sure, Trump is entitled to dislike Acosta and any other journalist. Many presidents have been angered by searching news coverage. But Trump's revocation of Acosta's credentials is, simply put, extraordinary. It's violative of the freedoms of speech and of the press guaranteed by our Constitution, at the heart of our democracy, and long respected by presidential administrations of both parties, even in moments of great tension between the press and the President.
 
Protecting and encouraging a wide range of views, including vigorously questioning and even criticizing the government, is at the core of the First Amendment's protections. As the so-called "second highest court in the land," the D.C. Circuit Court of Appeals, explained in a case about the First Amendment implications of White House security passes, "arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment."
 
Furthermore, courts have long recognized that, to uphold the First Amendment, courts must guard against government attempts to bully critics into silence. As the Supreme Court famously declared in New York Times v. Sullivan, "the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive." This danger is now being thrust upon White House reporters who must consider the possibility that a question they ask could cost them their hard-earned credentials. If those reporters were now to pull their punches—and, thankfully, we trust that few intend to do so —it will harm us all. After all, White House correspondents ask questions on behalf of the entire country, as most of us don't know the right questions to ask, let alone have the opportunity to put those questions to our most senior officials.
 
The United States has a long and proud history of journalists asking the President and other senior officials pointed questions and doing so without fear or favor. That history is in stark contrast to the recent backsliding in countries like Austria, Hungary, the Philippines, Poland, and Turkey, those with authoritarian inclinations are looking for policy levers to silence enemies and help friends. Security credentials may, at first blush, seem like a small thing in the scheme of our democracy, but a White House correspondent can't be a White House correspondent without it. Revoking it because one asked a tough question smacks of the emerging and unfortunate trends in those countries. That's why our organizations —one dedicated to defending reporters, the other to protecting constitutional rights—have filed a brief in court supporting the lawsuit brought by CNN and Acosta against the government.
 
In vigorously questioning the President, Acosta engaged in precisely the kind of constitutionally protected newsgathering activity—including constitutionally protected speech in the form of tough questions—that the First Amendment safeguards and upon which our democracy depends. For the White House to retaliate for that exercise of constitutional rights and thus to chill others from exercising those rights tramples on the First Amendment, impoverishes our democracy, and replicates dangerous developments elsewhere in the world—developments against which our Constitution was forged as a bulwark. Courts have long defended the press in the face of assaults out of a recognition that, in the Supreme Court's words, "[a] free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves." It's now up to a court, yet again, to hold the line.