Judge Orders White House To Restore Reporter's Press Pass It Illegally Removed
Furnished content.
Just a few weeks ago, we wrote about how the White House was clearly setting itself up for another embarrassing failure in court when it removed the press pass of Brian Karem. This wasn't new. The same thing had happened a year ago. And yet, our comments filled up with a lot of nonsense about how we were wrong and "there is no right to a White House press pass" and a bunch of other nonsense.I'll be curious to hear the response from those same individuals now that a federal judge has ordered the press pass restored.
As the Court will explain below,Karem has, at this early stage of the proceedings, shown that he is likely to succeed on this dueprocess claim, because the present record indicates that Grisham failed to provide fair notice ofthe fact that a hard pass could be suspended under these circumstances. Meanwhile, Karem hasshown that even the temporary suspension of his pass inflicts irreparable harm on his FirstAmendment rights. The Court therefore grants Karem's motion for a preliminary injunction andorders that his hard pass be restored while this lawsuit is ongoing.The court focuses mainly on the 5th Amendment due process claims, noting that those alone suffice to show that Karem is correct here. The judge goes into great detail about how the White House never did anything to suggest special decorum rules for these events, and thus the decision to ban Karem was arbitrary. The White House brought up all sorts of bizarre explanations insisting that it had provided adequate notice to Karem, but the judge points out that's just not true.
First, the letter's language, taken in its entirety, is ambiguous as to whether the WhiteHouse even intended to regulate events other than formal press conferences. Indeed, byexpressly limiting the scope of the promulgated rulesincluding the warning about thesuspension or revocation of . . . hard pass[es]to formal press conferences, the White Housearguably suggested that it was not going to police reporter behavior at other events, unlessunprofessional behavior occur[red] and it was forced to reconsider [its] decision bypublishing explicit rules.Also, whatever "rules" there might have been were way too vague:
Theletter refers only to professional journalistic norms, Acosta Letter at 2, which is just asamorphous as the reasons for security language that the D.C. Circuit found insufficient inSherrill, 569 F.2d at 130. Though professionalism has a well-known common meaning, it isinherently subjective and context-dependent. Such abstract concepts may at times indicate whatis allowed and disallowed at the furthest margins, but they do not clearly define what isforbidden or permitted in common practice within those margins. The vagueness doctrine guardsagainst this danger by ensuring that regulated parties are able to discern, as a practical matter,what is required of them so they may act accordingly. Fox, 567 U.S. at 253.The judge also notes that Karem's lawyers presented plenty of evidence of obviously much worse behavior that did not lead to press pass revocation:
Defendants appear to argue that, even if the meaning of professionalism may bedebatable in certain instances, Karem's behavior was clearly unprofessional in this instance.This contention appears to be grounded in the notion that a plaintiff who 'engages in someconduct that is clearly proscribed cannot complain of the vagueness of the law as applied to theconduct of others.'... Again, though, professionalism is context-dependent, and Karem has provided some evidence that WhiteHouse press events are often freewheeling and that aggressive conduct has long been toleratedwithout punishment. That evidence includes a characterization of the White House press corpsas an unruly mob of reporters. Ex. C at 5. It includes stories of how journalists have rudelyinterrupted presidents and berated press secretaries, Ex. D at 1; have breach[ed] etiquetteby heckling during presidential remarks, Ex. I at 1; and have shouted questions at theconclusion of Rose Garden events, drawing the ire of honored guests in attendance, see Ex. E at2; Ex. C at 4. The evidence even includes an account of how two reporters once engaged in ashoving match over positions in the briefing room. Ex. C at 5. This kind of behavior may haveoccasionally led the White House to speak with reporters' employers... but it apparently never resulted in the revocation or suspension of a hard pass.... And, as noted above, the Acosta Letter does notunambiguously signal a departure from that regime. In fact, the letter could reasonably be readto mean that the pre-existing regime would be maintained for the time being.Defendants, meanwhile, have submitted no evidence in support of their contention thatKarem's conduct was clearly proscribed under the existing professionalism policy. They instead rest entirely on Grisham's August 16 letter and its conclusions that Karem's actions, asviewed by a reasonable observer, (1) insulted invited guests of the White House, (2) threatenedto escalate a verbal altercation into a physical one to the point that the Secret Service deemed itprudent to intervene, and (3) re-engaged with . . . Gorka in what quickly became aconfrontational manner while repeatedly disobeying a White House staffer's instruction toleave. Ex. 10 at 8. But in light of the evidence that Karem has presented the first and thirdconclusions do not seem clearly sanctionable in the context of the White House press corps.And the second conclusion is not supported by the various video recordings of the July 11incident. No doubt, Karem's remark that he and Gorka could go outside and have a longconversation, id. at 3, was an allusion to a physical altercation, but the videos make clear that itwas meant as an irreverent, caustic joke and not as a true threat. And the videos belie the notionthat a Secret Service agent had to intervene to prevent a fight: the agent walks right past Karemas the exchange with Gorka is concluding (before returning upon hearing someone call Karem apunk ass). See Ex. 63 at 0:30-0:36; Ex. 61 at 0:23-0:27. Rather, Karem and Gorka each hadample opportunity to initiate a physical altercation, and they each made the decision not to.4Plus, Karem's interaction with Gorka in the Rose Garden was briefabout twenty seconds, seeEx. 63 at 0:09-0:31and it came after the President's remarks had concluded. This event wasalso one where jocular insults had been flying from all directions.... There is no indication in therecord that other offenders were reprimanded, or even told to stop.The court notes that it need not really get into the 1st Amendment arguments, given the 5th Amendment points raised above, other than to order the immediate return of the press pass, because taking it away creates irreparable harm to Karem's 1st Amendment rights.
It is not merely an abstract, theoretical injury, either. As Sherrill recognized, where theWhite House has voluntarily decided to establish press facilities that are open to all bona fideWashington-based journalists, the First Amendment requires that individual newsmen not bearbitrarily excluded from sources of information. ... Such exclusion isprecisely what Karem is suffering here. His First Amendment interest depends on his ability tofreely pursue journalistically productive conversations with White House officials.... Yet without his hard pass, he lacks the access to pursue those conversationsevenas an eavesdropper. And given that the news is time-sensitive and occurs spontaneously, thatlack of access cannot be remedied retrospectively.The case is not over, but for the time being the White House needs to restore Karem's pass. And I'll be eagerly waiting to see what those who insisted this case would go the other way have to say in our comments.
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