//  11/15/18  //  Commentary

By Jonathan Backer | Associate at Georgetown Law’s Institute for Constitutional Advocacy and Protection

On Tuesday, CNN and its Senior White House Correspondent, Jim Acosta, filed suit against the Trump administration following the White House’s decision last week to revoke Acosta’s security credentials immediately following a press conference during which President Trump responded angrily to the reporter’s questions. CNN’s complaint alleges that this retaliatory act by President Trump and the White House violates the First Amendment.

The White House does not deny that it is punishing Acosta, but it has said that it is doing so for reasons that have nothing to do with his coverage of the White House or the questions that he posed to President Trump during the press conference. Instead, the White House has offered a number of shifting justifications for its action, accusing Acosta of (1) assaulting a White House intern (an allegation it attempted to bolster with a doctored video of the incident in question); (2) preventing the White House from “run[ning] an orderly and fair press conference” by attempting to ask President Trump a second question; and (3) failing to show, according to President Trump himself, the proper “respect” for the “Office of the Presidency.”

President Trump is not the first American politician to retaliate against a journalist or media outlet for coverage that he does not consider favorable. And courts that have reviewed the legality of such actions in the past have not been duped by pretexts such as those offered by the White House over the past week. Neither should the U.S. District Court for the District of Columbia as it considers CNN and Acosta’s claims.

The 1936 case Grosjean v. American Press Co. provides an instructive example of the type of scrutiny that courts apply when the government targets particular journalists or news outlets for unfavorable treatment. That case struck down a 2 percent gross-receipts tax that Louisiana imposed on any newspaper that circulated more than 20,000 copies per week in the state. Because of the tax’s circulation threshold, it applied to 13 of the state’s 120 weekly newspapers. Not coincidentally, all but one of those newspapers had opposed the state’s dominant political faction, which until his assassination in 1935 had been led by the infamous Huey Long. The Kingfish and his ally, Governor Oscar K. Allen, touted the tax in decidedly Trumpian rhetoric:

The lying newspapers are continuing a vicious campaign against giving the people a free right to vote. We managed to take care of that element here last week. A tax of 2% on what newspapers take in was placed upon them. That will help their lying some. Up to this time they have never paid any license to do business like everybody else does. It is a system that these big Louisiana newspapers tell a lie every time they make a dollar. This tax should be called a tax on lying, 2[ cents] a lie.

Although the tax did not on its face discriminate against newspapers based on the content of their reporting, Long and Allen’s statement made it easy for the Supreme Court to ascertain that “the plain purpose” of the tax was to “penalize[] the publishers and curtail[] the circulation of a selected group of newspapers.”

In another newspaper-tax case without such unmistakable evidence of a retaliatory intent, the Supreme Court responded with similar skepticism. Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue struck down a tax on newsprint and ink purchases above a $100,000 threshold. The Court viewed the tax with suspicion because it “single[d] out the press for a different method of taxation” than other entities and targeted a small subset of newspapers due to its exemption of paper and ink purchases beneath the $100,000 floor. “Whatever the motive” for the tax, the Court held that the First Amendment does not tolerate a policy that “presents such a potential for abuse.”

The White House’s varied and dissembling excuses for its treatment of Acosta do not shield it from from legal rebuke any more than the taxes’ facial neutrality did in Grosjean and Minneapolis Star & Tribune. In the government’s filing this morning in the CNN case, it makes no mention of Acosta’s alleged assault of the White House intern. The government likely abandoned that justification because it is belied by the actual footage of press conference, and the White House shredded what little credibility it had in making the allegation when it circulated a doctored video of the incident. As for the “orderly press conference” rationale, multiple reporters — not just Acosta — persisted in asking questions at last week’s press conference after President Trump tried to move on to other reporters. Finally, Acosta’s pointed questioning showed no less “respect” for the President’s office than other reporters’ questions do.

Casting further doubt on the dubious justifications for Acosta’s treatment, President Trump has threatened to revoke other reporters’ credentials. He even specifically singled out American Urban Radio Network White House correspondent and CNN contributor April Ryan as a potential target, not because she engaged in conduct that resembled Acosta’s supposed misdeeds, but because she is, according to Trump, “a loser,” “nasty,” and “doesn’t know what the hell she’s doing.” And, today, the Trump campaign sent a fundraising email to supporters that reiterated the White House’s most recent justification for its revocation of Acosta’s credentials while also, more truthfully, touting the decision as showing that the President “will NOT put up with the media’s liberal bias.”

Because a free press is a cornerstone of our democracy, courts carefully and quite properly scrutinize the government when it singles out particular journalists or news outlets for unfavorable treatment. As the Grosjean Court aptly put it, “A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.” The White House’s explanations for its treatment of Acosta simply do not hold up to scrutiny.


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