home

Media Law Resource Center

Serving the Media Law Community Since 1980

Home

D.C. Circuit Rejects Trump Administration’s Suspension Of White House Correspondent’s Press Pass

Court Says Likely To Violate Due Process and Affirms Preliminary Injunction

By Theodore J. Boutrous, Jr. and Lee R. Crain

In June, the U.S. Court of Appeals for the D.C. Circuit issued Karem v. Trump, No. 19-5255 (June 5, 2020). The Court affirmed the district court's decision to preliminarily enjoin the White House's suspension of Playboy correspondent Brian Karem's press credentials (his "hard pass"). Specifically, the Court ruled that the White House's decision to punish Karem was based on unconstitutionally vague standards in violation of the Due Process Clause. This represented the second time the administration has attempted to suspend a reporter's hard pass and the second time the federal courts have preliminarily enjoined that action.

Background

Plaintiff Brian Karem is an award-winning journalist who currently serves as Playboy's White House correspondent and regularly contributes to CNN. He has covered every President since Ronald Regan and has held hard pass credentials that allow him to access areas of the White House that are open to the press.

The hard pass system has been around for decades. It was first addressed in Sherill v. Knight, 569 F.2d 124 (D.C. Cir. 1977), when reporter Richard Sherrill applied for but was denied a hard pass "for reasons of security." The Court noted that hard passes were typically approved if the applicant held a press pass for the House and Senate press galleries, lived in the D.C. metro area, needed to report from the White House regularly, and passed a background check. The system is not much different today, as the Karem court recounted. Sherrill held, among other things, that a reporter has a First Amendment liberty interest in her hard pass that cannot be deprived without due process of law.

Until the current presidency, no administration has attempted to strip a reporter of her hard pass or her attendant liberty interest in that pass. The first recorded instance was the Trump administration's revocation of CNN White House Correspondent Jim Acosta's hard pass in 2018. That suspension was enjoined by the U.S. District Court for the District of Columbia in Cable News Network, Inc. v. Trump, No. 18-cv-2610-TLK (D.D.C.), in which the Court held that suspending Acosta's hard pass without notice and a prior opportunity to be heard likely violated the Due Process Clause of the Fifth Amendment.

Less than a year after the district court enjoined the Acosta hard pass suspension, the administration attempted to suspend Brian Karem. Specifically, on August 16, 2019, Defendant Stephanie Grisham, the White House Press Secretary, notified Karem that she was suspending his hard pass. She described the suspension as "punishment" for what she claimed were breaches of certain unwritten "understandings and norms of media professionalism," arising from an incident that had happened five weeks earlier—on July 11, 2019—in the Rose Garden. During that July 11, 2019 gathering, the President had been speaking to the attendees of a so-called "Social Media Summit," which involved a group of more than 200 conservative bloggers and online personalities. As the event was ending, Karem attempted to ask a question, which the President rebuffed. In response, the bloggers and activists in attendance began taunting Karem, calling him "fake news." To diffuse the tension, Karem jokingly retorted, Rodney Dangerfield-style, that they looked like "a group of people that are eager for demonic possession."

Many in the group laughed at Karem's joke, but one attendee, Sebastian Gorka, did not. Instead, he yelled across the Rose Garden, "You're a journalist, right?" while making mocking air quotes with his hands. Karem responded with what the district court found was "an irreverent, caustic joke" stating to Gorka, "come on over here and talk to me, brother, or we can go outside and have a long conversation."  Gorka announced to the crowd that Karem was "threatening" him as he strode across the Rose Garden to confront the reporter, who remained in the penned-in press area. Gorka marched over to Karem and bellowed into his face: "You are a punk!  You're not a journalist!  You're a punk!"  The crowd began chanting "Gorka!  Gorka! Gorka!" One attendee yelled "Hit him, Gorka!  Hit him!"  Another shouted at Karem, "Just for the record, [Gorka would] kick your punk ass," a comment that elicited gasps from the crowd. Gorka turned and marched off. A few minutes later Karem spotted Gorka in the White House Palm Room and attempted to make peace, but Gorka brushed him away and Karem left.

Three weeks later, Press Secretary Grisham wrote to Karem advising that she had made the preliminary decision to suspend his press pass. Karem challenged the suspension as unconstitutional, but the decision stuck. Karem sued shortly thereafter, the district court granted him a preliminary injunction, and the government subsequently appealed.

Court Ruling

The D.C. Circuit affirmed the district court's imposition of a preliminary injunction, holding that Karem was likely to succeed on the merits, that every day his hard pass was suspended constituted irreparable harm, and that the balance of equities favored granting the injunction. In short, the Court agreed with the district court that Karem's hard pass needed to be restored and could not be suspended for the reasons offered.

Though the government had challenged the viability of the forty-year-old Sherrill decision, the D.C. Circuit began its opinion by reaffirming Sherrill in full. It noted that Sherrill relied on two interrelated First and Fifth Amendment notions. First, that the White House press areas constituted in essence a limited public forum, or a forum that the government voluntarily opened up to a certain class of expressive activity—i.e., journalism. Second, the Court reaffirmed that journalists retain a First Amendment liberty interest in their hard passes, which means the government cannot deprive a journalist of that liberty interest (or her hard pass) without due process of law. Due process includes adequate pre-deprivation procedures such as "notice . . . of the factual bases of [a hard pass]" revocation and the opportunity to be heard in opposing a revocation.

The D.C. Circuit then explained that the due process protections that attach to a hard pass also require fair notice of conduct for which that hard pass might be taken away. Citing FCC v. Fox Television, 567 U.S. 239 (2012), and BMW of N. Am. v. Gore, 517 U.S. 559 (1996), the Court explained that not only must citizens receive notice of what conduct is forbidden, but they also must be given notice of the types of punishments that may ensue. As applied to Karem's case, the Court found that nothing in the record gave him notice that he might suffer a one-month suspension of his hard pass—in the Court's words, an "eon in today's news business"—for engaging in conduct the White House deemed "unprofessional."

The Court methodically rejected the government's arguments to the contrary, finding inconsistent with clear Supreme Court precedent arguments like the "fair notice" doctrine applied only in the criminal context (it does not) and casting aside the government's attempt to "rais[e] the specter of the absurd." Simply put, the government argued that "it cannot be the case that the Press Secretary would be powerless to take action even were a reporter to 'moon' the President" or other absurdities. But the Court made clear that even if some conduct might be egregious enough to be clearly prohibited without prior notice, that alone does not mean that Karem's alleged conduct fit that bill. Ultimately, though, the D.C. Circuit promised the White House that it had the authority to "order the immediate removal of rogue, mooning journalists."

Karem's victory in the D.C. Circuit represents another win for journalists against an administration that regularly attacks the free press as "enemies of the people" and other epithets. In Karem, the D.C. Circuit flagged clearly that the courts will continue to protect journalists from an administration that seems uniquely hostile to the very type of free press the Founders envisioned would check governmental power. Although the very threat of punitive actions like those imposed against Karem and Acosta may result in a chilling of aggressive journalism in some cases—signaling to reporters that simply doing their job can result in retaliation—hopefully the D.C. Circuit's powerful decision in Karem will provide reporters the cover they need to pursue their First Amendment-protected activity to the fullest extent possible.

Theodore J. Boutrous, Jr. and Lee R. Crain of Gibson Dunn represented Brian Karem.

 
Free Joomla Templates: by JoomlaShack