Judge Timothy J. Kelly for the U.S. District Court for the District of Columbia will hold a hearing today (Sept 23) to decide whether he will issue a temporary restraining order barring the White House from excluding CNN, MS NOW and Politico from the White House news pool.
The media must establish four things to the satisfaction of the court for it to issue a TRO.
The most important element that the media must establish is that at a trial it would be likely to succeed on its claim that the government by taking this action is violating their First Amendment or Fifth Amendment rights.
Of the First Amendment, scholars have opined on this issue, and they universally believe that a First Amendment violation has occurred.
They, however, are not the judge.
The media must also establish that if access continues to be denied, it will suffer irreparable harm. However, if it’s First or Fifth Amendment rights are shown to be likely violated, irreparable harm will be presumed to follow.
Likewise, if it is able to establish likelihood of success on the merits, the balance of the hardships will favor the media and a TRO would be in the public’s interest.
The government has filed a response to the media‘s lawsuit, claiming that access to the White House is not a right; it is a privilege.
The government also claims that the media lacked proper decorum and published lies, and sensitive information.
Bald and general statements won’t cut it in this courtroom; nor will allegations that the media publishes false information. That’s Trump‘s opinion, but I’m sure the media has an answer for everything it has published that he claims is false.
Recall that The New York Times and the Washington Post were permitted by the Supreme Court to publish the secret history of the Vietname war, known as the Pentagon Papers. Daniel Ellsberg provided the document and was prosecuted as a result of handing over classified information.
The government’s claims regarding decorum and publication of sensitive information ought to be a nothing burger to the court.
In 2018, reporter Jim Acosta’s access was arbitrarily removed by the White House. He sued on similar grounds and the case was decided, not on First Amendment principles, but on Fifth Amendment principles of due process.
The court found that the government had acted arbitrarily and capriciously when it revoked his credentials. Acosta was not given any meaningful right to contest the action.
In this case, a claim that the government violated the media’s due process rights is the leadoff count.
There has been no public reporting that the White House has provided the media with any details regarding the White House‘s actions against the media. The president simply acted to eliminate access.
In response, the White House has said that the media has until Friday, two days from now, to respond administratively to the revocation of their credentials. If they do respond the government can sit on a decision, damaging their constitutional rights while it decides.
To avoid this, Judge Kelly could decide the case on the First Amendment grounds or he can find that the White House did in fact act arbitrarily, and capriciously, denying the media, their due process rights.
He can find that their rights were suspended arbitrarily, looking at Trump‘s statement, and that the government then acted in hindsight it to support his broad claims with the allegations that it has made in it’s filing.
Looking back at similar decisions, they have been decided on Fifth Amendment grounds.
He will hear argument today, but I suspect he knows how he’s going to rule based on the filings of both sides have made.
Best guess is that he will for now sidestep ruling on the First Amendment issue and find that their due process rights were denied.
This president is trying to remake our government, and he will appeal an adverse decision all the way to the Supreme Court.
If he does, and if the Supreme Court accepts the case, we’ll see whether they will consider First Amendment rights in their decision.
If the case goes that far, it will be a very important case to watch.
Jim Astrachan is lawyer who represents clients in intellectual property law and litigation, mediation, and business, regulatory, and transactional matters. He’s a Life Fellow of the Baltimore City Bar Foundation, the Maryland Bar Foundation, and the American Bar Foundation.