Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: A Hard Line on Acosta’s Hard Pass

Date: November 24, 2018
Host: Dahlia Lithwick
Guest: Ted Boutros (Attorney for CNN/Jim Acosta)

Overview

This episode dives into CNN’s extraordinary lawsuit against the White House following the suspension of Jim Acosta’s press pass. Dahlia Lithwick speaks with Ted Boutros—the attorney who represented Acosta and CNN—about the case’s legal foundations, the First Amendment, due process, implications for press freedom, and the enduring dangers posed by attempts to stifle journalists critical of those in power.

Key Discussion Points and Insights

1. Background & Context of the Lawsuit

• Incident Recap:
  • (03:15) On November 7th, 2018, during a heated press conference, Jim Acosta’s “hard pass” was suspended after an altercation with a White House intern.
  • (03:55) The White House claimed this was due to inappropriate contact—later shifting its rationale to lack of “decorum.”
  • Boutros explains: “A hard pass is a crucial entrée for anyone covering the White House... without that hard pass, it’s impossible to cover the White House.” ([03:55])
• Litigation Timeline:
  • CNN and Acosta immediately sought legal recourse.
  • A federal judge awarded a Temporary Restraining Order (TRO), requiring the White House to reinstate Acosta’s pass.
  • The White House attempted a new process to revoke the pass but ultimately restored it and introduced new press rules.

2. Due Process: The Heart of the Legal Victory

• Legal Precedent:
  • Boutros centered the case on Sherrill v. Knight (D.C. Circuit, 1977), which established the need for due process in revoking press credentials—the very precedent Acosta relied on.
  • (08:02) Boutros: “There’s a First Amendment right to a White House press pass... because the White House has opened itself up to journalists... that’s a liberty interest protected by the due process clause.”
• Court's Finding:
  • The judge ruled in CNN’s favor on due process grounds: the White House could not take away a reporter’s hard pass without clear notice and an opportunity to respond.
  • Memorable exchange:
    • Lithwick: “You prevailed on... the one that’s much less sexy. You prevailed on this due process argument.” ([07:34])
    • Boutros: “It really is a very interesting due process argument that folds into itself the First Amendment argument.” ([08:02])

3. First Amendment: The (Unresolved) Central Issue

• Viewpoint Discrimination:
  • The decision to ban Acosta was seen as classic “viewpoint discrimination”—punishing a reporter for critical coverage.
  • (11:37) Boutros: “Never in history has there been more evidence that a government official... didn’t like the message from a particular reporter and a particular news organization.”
  • Evidence cited included President Trump’s public attacks on CNN and Acosta, and the infamous video of Trump wrestling a figure labeled “CNN.”
• White House’s Position:
  • Astonishingly broad claim of power:
    • (13:21) Boutros: “They embraced it. They said exactly that. Of course, the President can... bar any reporters he doesn't like... the President has absolute discretion regarding content discrimination, which is just wrong.”
  • Chilling implications for press freedom.

4. Nature of the White House as a Limited Public Forum

• Legal Doctrine:
  • Lithwick and Boutros discuss the “limited public forum” doctrine, distinguishing it from completely open spaces but holding that, once the White House creates space for journalists, viewpoint discrimination and arbitrary exclusion are constitutionally prohibited.
  • (10:58) Boutros: “Whatever rights the press and public would have... once the White House... allowed reporters to get hard passes... that creates what’s basically a limited public forum.”

5. The New Rules and Their Viability

• White House Response:
  • After the court fight, the White House issued new press rules: one question per reporter, yield the microphone, loss of hard pass for violations, etc.
• Legal Sufficiency:
  • (18:31) Lithwick runs through the new rules; Boutros questions their enforceability:
    • (19:09) “The first person who’s going to break those rules is President Trump... he is going to be the engine of destruction of those rules... they’re not going to be a basis for revoking hard passes in any way that would conform to the First Amendment or the Fifth Amendment.”

6. The Civility Argument and Double Standards

• Selective Civility:
  • Boutros and Lithwick critique the White House’s invocation of “decorum,” noting its selective application and fundamental incompatibility with the disruptive, challenging essence of the First Amendment.
• Quote:
  • (20:27) Boutros: “It’s so true. It’s like a massive double standard... The irony wasn’t lost on anyone... The White House was talking about the need for decorum and President Trump said two or three incredibly outrageous things lacking any sense of decorum... The First Amendment... is really meant as a disruptor. It’s the people and journalists acting as surrogates for the people, disrupting and interrupting government officials and holding them to account.”

7. Style vs. Substance in Reporting

• History of Aggressive Reporting:
  • (22:10) Boutros: “In our history, it’s one of the great things about journalism. Different reporters have different styles... There’s a long tradition in White House reporting of reporters being aggressive and colorful... Sam Donaldson submitted a declaration in support of our case... This is nothing new.”

8. The Pretextual Nature of the White House’s Arguments

• Discredited Justifications:
  • The White House’s initial claim that Acosta assaulted the intern was quickly abandoned; video evidence was allegedly doctored.
  • (23:46) Boutros: “It did matter, and it undermined the credibility of everything that the White House was saying... it just demonstrated that it was all a pretext for content based discrimination... Once you have that to work with... it makes it much easier to demonstrate that their arguments factually and legally don’t hold water.”

9. The Larger Threat to Democracy

• Pattern of Intimidation:
  • Boutros contextualizes this case within Trump’s broader attempts to silence critics with legal threats.
  • (25:49) Boutros: “What prompted that article... was during the campaign... candidate Trump threatening to sue all the women who had made accusations... You have a candidate who’s wealthy, threatening to bring lawsuits... that pattern... seeking to intimidate citizens... by attacking and threatening them... it really goes to the reason why the Supreme Court in Times v. Sullivan created the very high standards of defamation... that protects the people in power. It protects government officials. It hurts our democracy... So it is not going away.”
• Role of Lawyers, Journalists, Citizens:
  • (27:17) “That’s why I just really feel it’s important to have lawyers fight back and journalists fight back and citizens fight back so we can keep control of our own government.”

Notable Quotes & Memorable Moments

• First Amendment as Disruptor:
  • Boutros: “The First Amendment... is really meant as a disruptor. It’s the people and journalists acting as surrogates for the people, disrupting and interrupting government officials and holding them to account.” (00:08; 20:27)
• Absolute Presidential Discretion:
  • Boutros: “The president has absolute discretion regarding content discrimination, which is just wrong.” (13:21)
• Journalism's Many Faces:
  • Boutros: “It’s that collection of different voices that helps the American people get the information they need to govern themselves.” (22:10)
• Legal Victory’s Limits:
  • Lithwick: “The bad news is... you just heard an articulation of pretty much uncabined presidential power to decide who gets to cover the White House based entirely on... their content and... point of view...” (14:09)
  • Boutros: “It tees up another battle for another day. So I think this was a very important victory for the First Amendment and for journalists and for the public. But it’s not the last battle.” (14:43)

Timestamps for Important Segments

• [00:08] First Amendment as Disruptor (Boutros)
• [03:13] Introduction of Guest, Ted Boutros
• [03:55] Explanation of “Hard Pass”
• [05:47] Legal Timeline: TRO & New White House Tactics
• [08:02] Due Process and the Sherrill v. Knight Precedent
• [10:58] Limited Public Forum Doctrine
• [11:37] First Amendment, Content Discrimination
• [13:21] White House Claim to “Absolute Discretion”
• [17:02] Theoretical Young for Future Press Rules
• [18:31] The White House’s New Press Rules Explained
• [20:27] The Civility Debate and the First Amendment
• [22:10] Historical Context of Aggressive Reporting
• [23:46] The Pretext and the Doctored Video
• [25:49] The Broader Threat: Legal Intimidation and Democracy
• [27:23] Call to Resistance: Lawyers, Journalists, Citizens

Conclusion

This episode serves as a master class on constitutional press freedoms and the ongoing struggle between journalists and those in power. The swift evolution, high stakes, and the Trump administration’s open embrace of anti-press sentiment underscore how fragile and essential the First and Fifth Amendments are in American democracy. As Boutros puts it, the battle is not over—but this case powerfully demonstrates the importance and efficacy of legal resistance.