The White House has banned CNN’s Jim Acosta from the White House grounds. It did so after Acosta, during a press conference, refused to stop talking after President Trump had addressed his question, and then refused to hand the microphone back to a young female staff member. The two — Acosta and the staffer — appeared to have a slight physical altercation.
CNN sues under the First Amendment, the Fifth Amendment (Due Process Clause), and the Administrative Procedure Act. The threshold question, though, is whether the case should be tossed by virtue of the political question doctrine. At Breitbart, Ken Klukowski argues that it should be. (More about this below).
If the case isn’t tossed, I believe CNN should lose. Its most substantial claim is under the First Amendment. According to the Washington Post, First Amendment advocate Floyd Abrams contends that CNN should prevail unless the president can show that Acosta is violent and disruptive.
I don’t see why Trump needs to show both. If Acosta is disruptive, that should be enough to have him banned. The president is permitted to hold orderly press conferences in which no one reporter holds the floor once his question is addressed and while the president is trying to take and answer a question from someone else.
Most other reporters at Trump’s conferences adhere to this basic courtesy. Is the First Amendment freedom of the outlets they represent infringed upon? Of course not.
There can be no genuine dispute that Acosta has been disruptive. The problem is that federal judges might decide that the disruption is minimal and outweighed by Acosta’s “right” to keep talking.
Such judges would overstep their proper role. It shouldn’t be up to federal judges to decide how much disruption a president must tolerate at a press conference.
If our robed masters undertake this task, they will be doing exactly what the political question doctrine is designed to prevent. They will be “expressing lack of respect due coordinate branches of government,” a key factor the Supreme Court has enumerated in deciding whether a case presents political questions. As Klukowski says:
Each branch of government has the discretion to determine the sort of atmosphere it wants for its public events and to give passes consistent with that discretion. Judges can exercise discretion regarding proper decorum in their courtrooms and can eject disruptive occupants from the courtroom, just as the House and Senate have discretion regarding the Capitol building. The president has at least that much discretion regarding his own house.
It’s possible that when the president dictates the atmosphere of a press conference, there may be First Amendment implications. That’s why a ban like the one on Acosta must be supported by evidence of disruption (or violence). In my view, it wouldn’t be permissible to expel Acosta because the president didn’t like his tone, for example.
But for courts to carry the inquiry further and decide how much disruption the president must tolerate is unacceptable. If that’s what’s going to happen, and there’s a good chance it is, better to nip the case in the bud under the political question doctrine.