Essay: Why CNN will lose their lawsuit against Trump for barring Jim Acosta from the White House

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Update November 16, 2018- I told you so. The judge in the Acosta case stated that it is not a violation of the First Amendment to bar Acosta from the White House. He won a brief reprieve due to a Fifth Amendment argument.

The judge emphasized that his decision was based on the Fifth Amendment since Acosta was denied his right to due process — and not on the question of whether the White house can bar reporters from the grounds.

I want to emphasize the very limited nature of this ruling. I have not determined that the First Amendment was violated here. If at some point after restoring the hard pass the government would like to move to vacate the restraining order on the grounds that it has fulfilled its due process obligations then it may, of course, do so and I will promptly address that and then the remaining basis of the (temporary restraining order),” Judge Kelly said.”

“If at some point after restoring the hard pass the government would like to move to vacate the restraining order on the grounds that it has fulfilled its due process obligations then it may, of course, do so and I will promptly address that and then the remaining basis of the (temporary restraining order),” Kelly said.”

November 14, 2018- by Steven E. Greer, MD

As BPTV viewers know, I happen to be a bit of a First Amendment expert due to my many years in federal court suing the BPCA. That is how I form this opinion: I believe that the CNN lawsuit against the Trump administration for barring loudmouth disruptive reporter Jim Acosta will be dismissed either at the motion to dismiss stage or later in the summary judgment stage.

The federal case law is clear that it is not a violation of the First Amendment if a disruptive reporter, member of the public, etc. is kicked out of a public meeting or barred from returning. In a brief filed in my own federal case, some Harvard lawyers (paid close to a million dollars so far to defend against my suit) found some very relevant case law.

“The Second Circuit has held that “officials must at least have the ability to close the courtroom door to any person whom they reasonably think may pose a threat to person, property, or decorum.” Huminski, 396 F.3d at 86–87.

Outside this Circuit, other courts have upheld similar restrictions upon access to public proceedings to promote public safety and preserve decorum. See, e.g., Mesa v. Hudson Cty. Bd. of Chosen Freeholders, No. CIV.A. 09-3576 KSH, 2011 WL 4592390, at *6 (D.N.J. Sept. 30, 2011) (holding that the plaintiff’s “repeated outbursts [were] the kind of “truculent” and “disruptive” behaviors that justify removing a citizen from a public meeting to maintain order and decorum and to prevent a speaker from hijacking a meeting”);

Thornton v. City of Kirkwood, No. 07-CV-79 (CDP), 2008 WL 239575, at *5 (E.D. Mo. Jan. 28, 2008) (“Thornton’s comments were irrelevant and repetitive, and his truculent attitude was disruptive to the city council meeting. As such, the restraint on his speech was constitutional.”);

see also Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 Stan. L. Rev. 927, 954 (1992) (“[A]n individual member of the press can and should be barred at least temporarily if he engages in disruptive behavior . . . .”).

Similarly, in Eichenlaub v. Township of Indiana, the Third Circuit evaluated a meeting exclusion claim within the framework of a forum analysis, and held that the plaintiff’s “repetitive and truculent” behavior during a public meeting was the sort of restriction “that passes muster under the most stringent scrutiny for a public forum.” 385 F.3d 274, 281 (3d Cir. 2004).”

Then, as a real factor in favor of the White House, the lawsuit is being handled by Judge Timothy J. Kelly, a Trump appointee.

The opposition memorandum by the DOJ makes some good arguments as well. Basically, the President of the United States can bar anyone he feels like barring from the grounds. There is no emergency to warrant a temporary restraining order, and CNN will likely lose the First Amendment complaint if the case proceeds.

The CNN complaint is light on case law to support their complaint. Notably, the lawyers are some of the most experienced at litigating before the Supreme Court. The “Two Teds”, Ted Olson and Ted Boutrous, have many wins on their resumes.

The bottom line is that The White House had every right to bar Jim Acosta and should have done so sooner. It is a shame that it took him manhandling a female intern, ripping the microphone from her, in order to get some action from the White House. Moreover, the next time a reporter yells a rude question during a ceremony where questions are not supposed to be asked, they too should be barred.

I am a huge defender of the First Amendment. The press is the secret fourth branch of government that provides the only real checks and balances to power. However, there are many forms of speech and petition that are not protected. Jim Acosta is a poster-child for those exceptions.

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