In a victory for the media, Judge Timothy J. Kelly has ruled that CNN’s Jim Acosta must be given back his access to the White House. However, it is not an entire victory. As we discussed earlier, the court recognized some basic procedural protections and required the White House to state clearly the grounds for revoking the clearance. The court expressly said that he has not found a violation of the First Amendment and has not determined that Acosta cannot be eventually barred from the White House. He wants further information from the White House if it intends to continue to bar Acosta.
It is careful not to oversell this opinion. Kelly said that this is “limited” ruling and offers only temporary relief. This was a predictable ruling on the due process elements in forcing a more detailed explanation and notice on the action. The court clearly did not view a tweet as notice and further noted that it was not even clear who made this decision. In other words, the White House failed to establish a proper foundation — a recurring problem with this Administration.
Thus, the White House could revoke again but take the time to lay a foundation and offer an objective standard. Once again, I fail to see why this Administration just stumbles into these fights and undermines its own case by failing to lay a proper foundation. In the end, the court indicated that it would bear a burden under the first amendment in excluding individual journalists. It is difficult to predict how the court would rule on a proper record since the White House failed to create one – much as it did in the first rendition of the travel ban.
I have repeatedly warned that this could be an example of a bad case making bad law if it goes to the merits. On the media side, a ruling against CNN could radically curtail the rights of journalists vis-vis the White House. Conversely, a ruling against the White House could significantly curtail the power to control access and conduct in the White House. Given those dangers, this would be a good stage to simply resolve the case with a stern warning and resumption of access for Acosta.