CABLE NEWS NETWORK, INC. et al v. TRUMP et al

Filing 16

MOTION for Leave to File Amicus Curiae Brief by WHITE HOUSE CORRESPONDENTS' ASSOCIATION (Attachments: # 1 Exhibit / Proposed Amicus Curiae Brief, # 2 Text of Proposed Order)(Lehner, George)

Case 1:18-cv-02610-TJK Document 16-1 Filed 11/15/18 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CABLE NEWS NETWORK, INC. and ABILIO
JAMES ACOSTA,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as
President of the United States; JOHN F. KELLY, in
his official capacity as Chief of Staff to the President
of the United States; WILLIAM SHINE, in his
official capacity as Deputy Chief of Staff to the
President of the United States; SARAH
HUCKABEE SANDERS, in her official capacity as
Press Secretary to the President of the United States;
the UNITED STATES SECRET SERVICE;
RANDOLPH ALLES, in his official capacity as
Director of the United States Secret Service; and
JOHN DOE, Secret Service Agent, in his official
Capacity,
Defendants

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CIVIL ACTION
NO. 1:18-CV-02610-TJK

BRIEF OF THE WHITE HOUSE CORRESPONDENTS’ ASSOCIATION AS AMICUS
CURIAE SUPPORTING PLAINTIFFS’ MOTIONS FOR A TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I.

INTEREST OF AMICUS CURIAE
Amicus curiae is the White House Correspondents’ Association ( “WHCA”), a

nonprofit association incorporated in the District of Columbia, whose primary mission is to
advocate for the newsgathering rights of the press on behalf of journalists who cover the White
House and on behalf of the Americans who rely on the press to provide information about the
activities of their elected officials. Founded over 100 years ago, in February 1914, the WHCA
has consistently and effectively worked to ensure that the men and women who gather and report
the news from the White House have the ability to seek answers from powerful officials, up to
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and including the President of the United States. The WHCA has 403 regular members who
represent over 100 different print, television, radio, and online journalism outlets and 187
associate members.
The WHCA was founded on the belief, as expressed by the country’s Founders
and enshrined in the First Amendment, that an independent news media is vital to the health of
the republic. The ability of the press to question vigorously and regularly elected officials and to
report freely on the activities of these officials is fundamental to our democracy. When
government officials—including the President of the United States here—attempt to restrict,
curtail, intimidate, or silence the press in its news gathering activities, the rights of the people
and the press, as guaranteed by the First Amendment, are infringed, and our democratic form of
government is placed in jeopardy.
Plaintiffs in these proceedings, supported by Amicus Reporters Committee for
Freedom of the Press, have outlined in compelling detail the constitutional violations visited
caused by the President’s actions. Amicus WHCA submits this brief to highlight the extent and
breadth of the danger posed to all journalists, and to the American public, if the President’s
assertion of unbridled authority both to pick and choose but also to affirmatively exclude those
journalists who cover him is permitted to stand. WHCA is filing now because the President set
forth this extraordinary claim of discretion in yesterday’s opposition papers, and the Court has
announced that it intends to rule on the pending temporary restraining order motion at 3:00 p.m.
today.
II.

ARGUMENT
The President of the United States maintains that he has absolute, unbridled

discretion to decide who can report from inside the White House. Under the President’s view of

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the law, if he does not like the content of an article that a journalist writes about him, he can deny
that journalist access to the White House. If he does not like the viewpoint that a journalist
expresses about him, he can deny that journalist access to the White House. If he does not like a
question that a journalist asks him, he can deny that journalist access to the White. If he decides
that a journalist’s story is “fake news,” he can deny that journalist access to the White House. In
fact, according to the President, if he alone considers a journalist a “bad” or a “rude” person, he
can deny that journalist access to the White House. And he can do so without providing that
journalist with any process whatsoever.
The President’s view of the law is wrong. While he may have absolute discretion
to exclude a member of the press from his Trump Tower residence, he does not have absolute
discretion to exclude a member of the press from the White House. After all, in the words of the
National Park Service, “the White House stands as a symbol of democracy . . . serv[ing] not only
as the seat of the executive branch of government of the United States of America, but also as an
iconic place for civil discourse.” See President’s Park (White House), National Park Service,
https://www.nps.gov/whho/index.htm. The White House is the People’s House, and the First
Amendment does not permit the President to pick and choose which journalists do—and do
not—cover him there. See The People’s House | The White House: Inside Story, PBS,
https://www.pbs.org/video/white-house-inside-story-peoples-house/. Far from it, the First
Amendment requires a compelling government interest—not whim, prejudice, or dislike—for the
President to strip a journalist of his or her ability to report from the White House. WHCA urges
the Court to grant CNN the relief that it seeks and, in doing so, to roundly reject the President’s
dangerous legal position.

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A.

The President does not have discretion to pick and choose who reports
on him from the White House.
The President’s claim that he has absolute discretion to decide which journalists

have access to the White House is foreclosed by Sherrill v. Knight, 569 F.2d 124 (D.C. Cir.
1977). In Sherrill, the court made clear that, regardless of whether the President has discretion to
select those journalists to whom he grants interviews, a journalist’s First Amendment rights are
implicated by the denial of a White House press pass and a President therefore is not free to deny
press passes as he or she sees fit. See id. at 129 (explaining that “arbitrary or content-based
criteria for press pass issuance are prohibited under the first amendment” and then discussing
other “first amendment considerations” raised by press pass denial); id. at 130 (“[T]he interest of
a bona fide Washington correspondent in obtaining a White House press pass is protected by the
first amendment.”). As the D.C. Circuit put it, “White House press facilities having been made
publicly available as a source of information for newsmen, the protection afforded
newsgathering under the first amendment guarantee of freedom of the press requires that this
access not be denied arbitrarily or for less than compelling reasons.” Id. at 129 (internal citations
omitted). Indeed, the court stressed, “[n]ot only newsmen and the publications for which they
write, but also the public at large have an interest protected by the first amendment in assuring
that restrictions on newsgathering be no more arduous than necessary, and that individual
newsmen not be arbitrarily excluded from sources of information.” Id. at 129-30. The court
then unequivocally held that, “[g]iven these important first amendment rights implicated by
refusal to grant White House press passes to bona fide Washington journalists, such refusal must
be based on a compelling government interest.” Id. at 130.
In addition to being at odds with binding First Amendment precedent, the
President’s legal position threatens the free flow of information about our elected officials that is

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so crucial to the functioning of our democratic system. As explained by Todd J. Gillman—a
WHCA Board Member and Washington Bureau Chief for The Dallas Morning News—in his
Declaration attached to CNN’s injunction papers, “[a] hard pass is critical for anyone who
reports regularly on the White House.” ECF No. 2-5, Gillman Decl. ¶ 9. It is no exaggeration to
say that, without one, a White House correspondent simply cannot do his or her job effectively.
For example, the ability of a White House correspondent to interact in real time with White
House officials, including the President, as an important national emergency or crisis unfolds,
and accurately report on such an event, would be impossible without a hard pass. Moreover, Mr.
Acosta was not just denied a hard pass—he was denied White House access altogether.
Beyond the impact that a denial of a hard pass has on the individual plaintiffs in
this case, the Court cannot ignore the effect that a decision ratifying the President’s sweeping
claim of discretion would have on other journalists and news outlets that regularly cover the
White House. Simply stated, if the President were to have the absolute discretion to strip a
correspondent of a hard pass, the chilling effect would be severe and the First Amendment
protections afforded journalists to gather and report news on the activities on the President would
be largely eviscerated. White House correspondents would have to choose between avoiding
reporting or questioning that could upset the President, on the one hand, and risking the loss of a
hard pass—a requirement to do their job—on the other hand. Forcing those who cover the
President to make such an untenable choice is not something that the First Amendment can
tolerate. Nor can the First Amendment—or our democracy as a whole, for that matter—tolerate
yielding to the President the power to effectively choose who does and who does not cover him.

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B.

A journalist must not be denied a White House hard pass without due
process.
Given how important a White House hard pass is to the work of a White House

correspondent, and given the First Amendment interests that are implicated, a journalist must not
be denied a hard pass without due process. See Sherrill, 569 F.2d at 130-31 (“This first
amendment interest [in a White House press pass] undoubtedly qualifies as liberty which may
not be denied without due process of law under the fifth amendment.”); id. at 131 n.22 (“A
related and perhaps equally compelling property interest [implicated by a White House press
pass] may also be said to require the procedural protections of the fifth amendment.”). To pass
constitutional muster, the process provided must include, at a minimum, “notice of the factual
bases for denial, an opportunity for the applicant to respond to these, and a final written
statement of the reasons for denial.” Id. at 130. This level of process is necessary to help ensure
that any denial actually satisfies Sherrill’s substantive requirements—namely, that the denial is
not “based on arbitrary or less than compelling reasons.” Id.
But where, as here, the government’s stated rationale for the denial of a hard pass
is ever-shifting, any supposed process provided is essentially meaningless. See Jason Schwartz,
‘The Government’s Story Keeps Changing’: CNN Seen as Likely to Prevail in White House Fight
(Nov. 13, 2018, 7:39 PM), https://www.politico.com/story/2018/11/13/cnn-white-house-lawsuitjim-acosta-988160 (referring to White House’s justifications for revocation as “shifting”). How
can a White House correspondent “respond” to a “factual basis” that changes daily or is
supported by an altered video? And in such a situation, how can a White House correspondent
trust that any “final written statement of the reasons for denial” that he or she receives contains
the actual reasons for the denial? Indeed, far from dispelling any concerns that the denial of Mr.
Acosta’s hard pass was “based on arbitrary or less than compelling reasons,” the supposed

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process that was provided here—again, a series of shifting explanations—only heightens those
concerns.
III.

CONCLUSION
For all of these reasons, WHCA requests that the Court grant CNN the relief that

it seeks and reject the President’s dangerous legal position that he has absolute discretion to
decide which journalists report from inside the White House.
Dated: November 15, 2018

Respectfully submitted,
/s/ George A. Lehner
George A. Lehner (D.C. Bar. No. 281949)
PEPPER HAMILTON LLP
Hamilton Square
600 Fourteenth Street, N.W.
Washington, D.C. 20005-2004
Phone: [phone]
Fax: [phone]
[e-mail]
Amy B. Ginensky (pro hac vice forthcoming)
Eli Segal (pro hac vice forthcoming)
Eric Merin (pro hac vice forthcoming)
PEPPER HAMILTON LLP
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103-2799
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for White House Correspondents’
Association

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