The books have undoubtedly been taken down from the shelves of Island Trees High School and Island Trees Middle School: Well-thumbed copies of popular 1960s books including The Fixer, by Bernard Malamud, and Soul on Ice, by Eldridge Cleaver, they were probably sold long ago to a used-book outlet.
But they (or rather the empty spaces on library shelves they left) stand for a principle that is important to reaffirm in the dispute between the White House and CNN. The first round of that dispute was resolved Friday, when Judge Timothy Kelly granted the network a temporary restraining order requiring the White House to restore the correspondent Jim Acosta’s “hard pass” to cover White House events.
The judge, an appointee of President Donald Trump, made the order with some hints of reluctance, telling the courtroom that “I want to emphasize the very limited nature of this ruling. I have not determined that the First Amendment was violated here.” Instead, he ruled that CNN had shown the likelihood that the procedures used by the White House violated the Fifth Amendment, which binds the federal government not to deprive any “person … of life, liberty, or property, without due process of law.” The granting of the temporary restraining order indicates that the judge thinks CNN will likely win after a full hearing; but it doesn’t tell us whether that likely victory would be purely on procedure, or also on the important First Amendment questions raised by the case. (As of 5 p.m., Judge Kelly had not issued a written opinion and order.)
The judge’s cryptic statement suggests that revoking a reporter’s press pass may or may not violate the Constitution—but revoking it without providing a reason, and without a chance for the reporter to contest that action, does. The judge said he was relying on precedent, though he added, “Whether it’s what I agree with, that’s a different story, but I must apply precedent as I see it.”
The case he is referring to is almost certainly Sherrill v. Knight, which concerned Robert Sherrill, the cantankerous Washington editor of The Nation, who was denied a press pass to the White House even though he had congressional press credentials. The Secret Service at first refused to explain the refusal, then finally alleged that the denial was based on reports of a couple of fistfights the writer had gotten into during his days as a southern newsman. (Disclosure: I was briefly a researcher for Sherrill, which got me chased out of Hollywood by the FBI, but that’s a story for another time.)
Neither Sherrill nor anybody else, Circuit Judge Carl McGowan wrote, was entitled to White House access as a matter of First Amendment law. But the White House had “voluntarily decided to establish press facilities for correspondents who need to report therefrom.” Once the government made that choice, “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.” For that reason, the Secret Service could not deny Sherrill or anyone else a pass without making public its rules. And if the Secret Service wanted to deny anyone a pass based on those rules, it had to give the rejected applicant “notice of the factual basis for denial, an opportunity … to respond to these, and a final written statement of the reasons for denial.”
Eventually the Secret Service offered Sherrill his pass; having made his point, he declined.
There are two ways to read Sherrill. One is that it is purely about procedure. If so, the White House will be free to announce stringent rules and apply them to Acosta and other correspondents whose questions or manner annoy the president.
The other reading centers on McGowan’s statement that because the procedures involve the First Amendment, no pass could be denied for “less than compelling reasons.”
If the second reading is right, then “He’s annoying” or “He hogs the spotlight” or “Trump doesn’t like him” won’t cut the mustard. The White House had initially maintained that Acosta was being excluded because he supposedly manhandled a White House intern trying to take the microphone from him. The best evidence they could offer publicly was a doctored video. Kelly told the courtroom Friday that the intern claim was “likely untrue” and “partly based on evidence of questionable accuracy."
So if the White House wants to pursue this juvenile vendetta (a question that, alas, probably answers itself), it is going to have to offer a different reason—and as I read Sherrill, that reason needs to be compelling, like the safety of the president or the threat of serious disruption. Acosta may be loud, he may sass back at the president, he may ask follow-ups when Trump would prefer he didn’t—but there is a tradition of rowdy jostling and camera hogging in that pressroom that goes back to before the advent of TV. The legendary White House correspondent Merriman Smith once broke a leg in the pressroom as he rushed toward a telephone. I was once in the pressroom with the ABC News correspondent Sam Donaldson, next to whom Acosta is Mary Tyler Moore.
Our courts have said in many contexts that political discourse in this country must be “uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Trump’s sense of what he called “decorum” on Friday isn’t a government interest that overcomes that tradition.
Acosta also has an argument that Sherrill didn’t have. Sherrill didn’t have a pass but wanted one; Acosta had a pass—he’s been covering the White House since 2013—and suddenly lost it. The First Amendment interest in not being arbitrarily excluded is even higher when you’ve already been allowed in.
That’s where my beloved Island Tree High School library books come in. In 1975, members of the Island Trees Union Free School District attended a conservative meeting and left with a list of books the group considered “improper fare for school students.” Soon after, the board ordered the removal of nine books from the school libraries. A group of students sued to have the books restored, and the case made its way to the Supreme Court, in Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico.
In an opinion by Justice William Brennan, three justices said the First Amendment did not limit “the discretion of a local school board to choose books to add to the libraries of their schools” (my italics). But once the books are there, they said, “we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books.” Justice Harry Blackmun, in a separate opinion, wrote a less categorical opinion; but he said that removal of a book “is likely to suggest that an impermissible political motivation may be present.” Justice Byron White provided the fifth vote but refused to endorse the removal rationale. Four justices dissented.
What’s the relevance here? Before the district court in the CNN case, lawyers for the government took the position that the president or his staff could exclude any correspondent for any reason at any time. That claim is laughable; the president can call on anyone he wants, give interviews or not give interviews, and indeed not speak to reporters at all. But once he’s given a pass, he, like the vigilant Island Trees school board, needs to have at least a reason—and preferably a good one—to take it away.
Kelly might have an appetite to narrow the Sherrill ruling; Pico cautions against that. As precedent, it’s not rock solid. But as common sense, it is adamantine.
Remember, Acosta had his pass and used it without incident for five years. Think of it the way Blackmun did; the decision to remove the pass now is pretty suspicious. It might not even pass the rational-basis test.