WASHINGTON (CN) — An attorney for a Playboy reporter warned the D.C. Circuit on Monday during unorthodox teleconference oral arguments that the White House revoking his client’s press pass is particularly alarming during the Covid-19 outbreak.
“Ensuring that the press can vigorously cover the president and the White House is more important now than ever,” said Gibson Dunn attorney Theodore Boutrous Jr. “We’re in a global pandemic, a national crisis, and the American people need accurate information about the government, public safety and public health.”
The reporter, Brian Karem, sued the White House last year after Press Secretary Stephanie Grisham revoked his credentials following a Rose Garden shouting match with a former Trump adviser.
Last week, the D.C. Circuit postponed all in-person oral arguments due to the novel coronavirus outbreak, forcing the parties to present their case to the three-judge panel over the phone Monday on whether the appellate court should strike down a lower court decision to grant Karem's emergency motion to reinstate his credentials.
After a brief technical mishap, Justice Department attorney James Burnham launched into his argument that Karem was fully aware that members of the White House press corps were not allowed to engage in unprofessional behavior.
Offering examples of a reporter sexually harassing staff or shouting racial epithets at guests, Burnham said it was “simply inconceivable” that the White House press secretary would be powerless to take action just because such egregious conduct was not specifically prohibited beforehand.
“Here, everyone knew that Mr. Karem’s behavior was out of line including Mr. Karem himself,” Burnham told the judges.
The Justice Department argued that the case is not an issue of First Amendment rights but merely a due process debate.
But Boutrous, representing Karem, made the opposite argument, saying “that is a real First Amendment danger.”
The incident that set off the 30-day press pass suspension was caught on tape following a July press conference where Karem attempted to ask the president a question. Trump supporters mocked the press on site calling them “fake news,” to which Karem responded: “This is a group eager for demonic possession.”
Sebastian Gorka, who served as deputy assistant to Trump in 2017, then marched across the garden to Karem and called the reporter a “punk.” Karem shouted back for Gorka to “get a job” and offered to talk outside, which the White House claims was a challenge to fight.
Karem’s attorney assured the court that the reporter is known for having a “jocular sense of humor.”
“It was a back and forth. It was an unruly event, as the district court found. But we don’t punish that in the United States,” Boutrous said. “This is free speech.”
U.S. Circuit Judge Cornelia Pillard sharply disagreed with the government.
Calling Karem’s speech “obviously a First Amendment-protected area,” the Barack Obama appointee focused on the White House not outlining prohibited behavior in advance.
“I just find that astounding,” Pillard said. “I mean, of course it had to be announced in advance.”
In the aftermath of the Rose Garden incident, Karem had told the White House, “Who would invite someone to a WWF smackdown in the White House Rose Garden in front of 200 people, dozens of television cameras?”
“The answer, of course, is that Mr. Karem would, as both the press secretary and the district court both found,” Burnham said Monday, recognizing that the lower court concluded that Karem made the comment as a joke.
While the Justice Department attorney hedged his arguments on the claim that there is no “freestanding First Amendment entitlement” for the press to access the White House, he similarly struggled to persuade Chief U.S. Circuit Judge Sri Srinivasan.
“Even a joking statement about an altercation, if you think that’s out of bounds no matter what, it just seems to me that there’s contexts in which it actually wouldn’t be out of bounds, no matter what, depending on how it arose,” said Srinivasan, another Obama appointee.
Conceding that an incident at the White House must be assessed under individual circumstances, Burnham continued to push the point, saying: “The gray zone is fair game.”
Reminding the court that the White House has never banned a reporter in the manner that Press Secretary Grisham ousted his client, Boutrous said there was no compelling reason to deny Karem a press pass.
The attorney went a step further and placed the blame for the “circus-like atmosphere” on President Donald Trump, a co-defendant in the case alongside Grisham.
“I don’t know how you could have standards that govern something like that,” Boutrous said. “It’s so subjective. It’s so amorphous. And President Trump, for better or worse, creates that sort of atmosphere.”
Recognizing that standards could be outlined, the attorney argued that for Karem there was no fair warning that his credentials would be suspended.
The attorney further cited a letter from Grisham that leaves it up to the courts to decide if explicit rules are required to regulate conduct.
“At this time however, we have decided not to frame such rules in the hope that professional journalistic norms will suffice to regulate conduct in those places,” the press secretary wrote last year.
Gently playing devil’s advocate for the government, Judge Pillard questioned whether a White House event as a limited public forum is similar to an employment setting.
But Boutrous pushed back against the suggestion, warning that the danger of standards of professionalism is they can be invoked with “discriminatory hints.”
“It’s in the eyes of the beholder,” the attorney said. “President Trump thinks it’s unprofessional, as he made clear just last week, if a reporter asks a critical question — or even sometimes a softball question.”
U.S. Circuit Judge David Tatel, a Bill Clinton appointee, joined Srinivasan and Pillard on the panel. The arguments proceeded by phone Monday after the court last week denied a motion from both parties to postpone, citing Centers for Disease Control and Prevention guidance on Covid-19.
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