WASHINGTON — The White House fully restored CNN chief White House correspondent Jim Acosta’s hard pass on Monday, and the news network in turn ended their litigation against the Trump administration.
At the same time, White House press secretary Sarah Huckabee Sanders outlined a new set of rules for the media during press conferences. But those, too, may be legally problematic.
The rules are: 1) A journalist called upon to ask a question will ask a single question and then will yield the floor to other journalists; 2) At the discretion of the president or other White House official taking questions, a follow-up question or questions may be permitted; and where a follow-up has been allowed and asked, the questioner will then yield the floor; 3) “Yielding the floor” includes, when applicable, physically surrendering the microphone to White House staff for use by the next questioner; 4) Failure to abide by any of rules (1)-(3) may result in suspension or revocation of the journalist’s hard pass.
They sound simple enough, and don’t make any mention of sanctioning reporters’ over content, viewpoint, or question asked.
Yet some reporters immediately reacted with a sense of alarm.
“There is now a threat to ban reporters from the White House for asking a follow-up question without permission even once,” Todd Gillman, the Washington bureau chief for the Dallas Morning News, wrote on Twitter.
“These rules would enable any even half-competent speaker to avoid answering any and all questions posed to them by the press. The @WHCA should strongly oppose this move by the White House,” wrote Chris Geidner, the legal editor for BuzzFeed News.
In her statement, Sanders said they created the rules with “a degree of regret,” and characterized them as merely replacing previously unwritten “shared practices” between the White House staff and the press corps.
The difference now, though, is that there is the explicit written threat of losing a hard pass. As Acosta argued, that means the difference between being able to report from the White House and not.
Katie Townsend, legal director of the Reporters Committee for Freedom of the Press, said they are “very concerned” about the new rules.
“While a [White House] official has always been able to decline to answer a follow-up question, these ‘rules’ suggest that a reporter could jeopardize her or his hard pass simply by attempting to ask a single follow-up question without permission,” she said via email. “How these ‘rules’ will be applied is entirely unclear, and the way they are written leaves wide open the possibility that the [White House] will use them as an excuse to avoid answering questions it does not like, or — as it did with Mr. Acosta and CNN — to punish particular reporters and news outlets based on what the [White House] views as unfavorable coverage of the administration.”
Ben Wizner, director of the American Civil Liberties Union’s speech, privacy, and technology project, said the rules “give the White House far too much discretion to avoid real scrutiny. Asking an ‘unauthorized’ follow-up question cannot be the basis for excluding a reporter. The rules should be revised to ensure that no journalist gets kicked out of the White House for doing their job.”
“The White House belongs to the public, not the president, and the job of the press is to ask hard questions, not to be polite company,” he added.
Can the White House enforce such policies? The judge in the case, Timothy Kelly, ruled only that the Trump administration failed to give Acosta his due process. What he didn’t determine is on what grounds the administration actually could take to revoke a credential.
The 1977 D.C. Circuit case Sherrill v. Knight, involving a reporter for the Nation who was denied a credential, has been a guiding precedent in the litigation. The judges in that case wrote that access “not be denied arbitrarily or for less than compelling reasons.” The White House argued that its reasons for revoking Acosta’s hard pass met that threshold, while CNN claimed that the action was arbitrary and meant as retaliation over the network’s coverage.
Laura Prather, a media law attorney and partner at Haynes and Boone in Austin, said “you are not finding jurisprudence [on press access] because this was such an extreme measure taken by the White House.”
While there may have been implicit traditions and unwritten standards of decorum among the press corps, CNN made the case that the White House’s action was unprecedented. It’s one reason that the network enlisted Sam Donaldson to file a sworn declaration in their case. In his day, he too came under criticism for aggressive behavior and for shouting questions at the president, yet he said that no administration ever threatened to revoke his hard pass.
Olivier Knox, the president of the White House Correspondents’ Association, said they “had no role in crafting any procedures for future press conferences.”
He did express some concern over the rule on asking follow-up questions, but for now the organization indicated that it will wait and see.
“For as long as there have been White House press conferences, White House reporters have asked follow-up questions,” he said. “We fully expect this tradition will continue. We will continue to make the case that a free and independent news media plays a vital role in the health of our republic.”
Should the White House try to pull other reporters’ passes over other incidents, it’s a good bet for another legal showdown.