WASHINGTON (CN) – The White House suspension of CNN correspondent Jim Acosta’s press pass after he and President Donald Trump had a heated confrontation during a news conference has once against cast the president’s rocky relationship with the press in the spotlight.
Acosta’s “hard pass” — the badge granting him access to White House grounds — was revoked hours after he and Trump locked horns during a Wednesday afternoon press conference.
The two began sparring after Acosta asked Trump about the caravan of migrants heading from Latin America to the southern U.S. border.
Trump responded by lashing out at Mr. Acosta, saying, “Honestly, I think you should let me run the country — you run CNN.”
Acosta, who was in the front row of the reporters, refused several times to sit down or to return a microphone to a White House intern who sought to retrieve it and instead persisted in trying to ask a follow-up question.
“Put the mic down, Trump said. When Acosta finally did relinquish it, the president called him “a rude, terrible person.”
“You shouldn’t be working for CNN,” Trump said.
On Wednesday night, as Acosta tried to re-enter the White House for a live shot for CNN, a Secret Service officer approached him and asked him to hand over his pass.
Acosta later tweeted that as he handed over the pass, he assured the officer that he didn’t blame him for his actions, that “he was only doing what he was told to do.”
Later, White House press secretary Sarah Huckabee Sanders released a statement accusing Acosta of “placing his hands on a young woman just trying to do her job as a White House intern,” calling it “absolutely unacceptable.”
Sanders backed her claims by sharing an allegedly doctored InfoWars video that appears to show Acosta striking or pushing away the aide as she approached him.
The clip was first circulated by InfoWars editor Paul Joseph Watson on Twitter.
On Watson’s clip Acosta appears to be dropping his hand down on the aide’s arm in a chopping motion. But video actually broadcast during the press conference showed Acosta made no such sharp motion and simply pulled the microphone to his chest.
InfoWars has denied the video was edited and the White House did not return request for comment.
Sanders’ statement and the circulation of the video prompted another tweet from Acosta Thursday morning in which the newsman said “Don’t believe the lies coming from the WH. Believe in our freedoms. Thank you all for your support. We won’t back down.”
According to Gene Policinski, president of the Freedom Forum Institute in Washington, D.C., a nonprofit that espouses freedom of the press, the removal of Acosta’s pass is concerning and should be, not only for members of the media or Trump’s critics but also for those who support the president.
“Acosta and the rest of the press corps are not self-serving members of the elite,” Policinski said. “While some politicians may pit this as an ‘us-versus-them,’ the reality is the press is only there to serve as a government watchdog.”
The nation’s founders, he said, created the First Amendment so that representatives of the public – in this case, reporters – could attend conferences or meetings on their behalf.
“When you take away any reporter’s access, you’re taking away every single citizen’s access. Today it’s Acosta from CNN, next time it could be John Roberts at Fox under a different administration,” he said.
The founders lived in an “incredibly vitriolic period of press-government relations,” Policinski noted.
“If you go back to when we adopted the Bill of Rights, publications of the time sent politicians running to their basements where they screamed for their mothers. Those were vicious journals of opinion. But even [the founders] realized the value of having someone outside of government standing there to ask: why did you do that? Is this what you had planned?” he said.
But does the suspension of Acosta’s badge run afoul of the First Amendment?
Robert McNamara, a senior attorney at the Washington, D.C.-based Institute of Justice, told Courthouse News this is where things get murky.
“In a First Amendment challenge, it depends on what kind of forum you’re dealing with. In a public forum, one set of standards applies to speech. In a limited public forum, which is what Acosta was in, there are certain restrictions that can apply,” McNamara said.
In a legal challenge, the government could argue the conference occurred in a limited public forum because it’s an arena people are not necessarily allowed to speak in without limits.
“The government could say we don’t allow people to speak freely here, but rather, they’re here to listen and report,” he said. “There might be a fight about that. There are hurdles to get over … the president can say it’s a limited but he would have to establish that.”
Media experts say Acosta will likely have his access restored by virtue of a 1977 D.C. Circuit ruling, Sherrill v. Knight. According to that ruling “the protection afforded newsgathering under the First Amendment … requires that this access not, be denied arbitrarily or for less than compelling reasons.”
“It’s the responsibility of the White House to take questions. Including those they find uncomfortable or rude,” Policinski said. “Nothing in the First Amendment says anything about being polite.”
In daily life, people tend not to ask the “terribly rude” questions, he said.
“As a journalist, you don’t go out of your way to be rude or annoying, but you’re there to ask the last question the person at the podium wants to hear,” Policinski continued. “That’s your duty … it’s very different from the way we might ask questions in private life and I hope people remember that.”
No matter how it shakes out with Acosta, McNamara said the average citizen should “always be concerned” about how powerful people interact with the media and how the government uses its power to shape national dialogue.
“You don’t have to come down on this dispute [between Acosta and the White House] one way or another to be concerned. There’s no more dangerous power the government has than to exercise its power around protected speech,” he said.
The president is typically unkind to the press but to be nice is no more his job than it is for reporters to ask questions which would only paint the president in a positive light.
“Being a journalist is not a license to be insulting, but Acosta’s questions were in order, whether the president wanted to talk about them or not. There was no profanity, no personal attacks,” Policinski said.
If the video Sanders circulated is confirmed as doctored, Acosta could try to sue for libel or defamation, McNamara said.
“But it would be difficult – did the person engage in defamation with malice … or recklessness? Did the person know their statement was false or should they have objectively known? Even if you can get over that hurdle, you have to prove actual damages which is tremendously difficult to do,” he said.
But as a federal official, Sanders would likely be found immune from a defamation claim that arise from her professional duties under the Federal Tort Claims Act.
“’Sovereign immunity’ is the legal concept that government employees cannot be sued in an individual capacity for wrongs committee as part of their duties as a government employee,” said Catherine Cameron, a law professor at Stetson University College of Law in Gulfport, Fla. “The Federal Torts Claim Act allows individuals to sue federal employees for some wrongs committed in their capacity as a federal employee, but defamation is not one of those exceptions.”