“Acosting” the First Amendment

So, Jim Acosta lost his White House press credentials and the usual suspects are in an uproar claiming a violation of the First Amendment and a Federal Judge claiming it violates Acosta’s due process rights (which would be Fifth Amendment).

These arguments are ridiculous.

Let’s go over the situation a bit.  The President was holding a press briefing.  Acosta was given a chance to ask a question.  Afterward, he was supposed to give the microphone back so that others could ask their questions.  He did not do so, holding onto the microphone and continuing with a harangue masquerading as questions.   The intern whose job it was to pass around the microphone tried to take it from him and he physically blocked her from doing so.  Afterwards, as a consequence, the White House revoked Acosta’s White House press credentials.

There is no First Amendment question here.  None.  To understand that you have to understand what the First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Let’s break that down a bit.  First, consider that what the First Amendment, what all the Amendments in the Bill of Rights do is forbid the government from infringing of rights held by the people.  They do not create special classes who have special privileges, but these are rights granted to the people.  Thus, the free exercise of religion is not limited to officially recognized/sanctioned churches (indeed, the establishment clause, especially once incorporated on the States via the 14th, eschews the very idea of such recognized/sanctioned churches) but to the individual religious beliefs of individual people.  Speech is not limited to licensed/recognized orators, but recognizes that all people have the right to free speech.  Peaceable assembly is not limited to special clubs/organizations.  Petition is not limited to select groups.  They all apply to all the people.

So it is with Freedom of the Press.  This is not a special privilege limited to recognized “journalists” or news organizations.  It’s a right held by the people.  Where freedom of speech protects what you say from government interference, freedom of the press protects what you write (or publish, broadcast, distribute online, or whatever other way might be considered “the press” in the modern day).  It’s not something limited to CNN, NBC, Jim Acosta, or Maury Povich, or whoever.  It’s a right held by all the people.

And once you recognize that, you see why the idea that denying a press pass cannot be a first amendment issue.  After all, if it were, then my not having such a pass (or you, whoever you are reading this) would equally be a violation of the first amendment.

There simply is no first amendment right to demand to attend white house press briefings or any other such briefings.  Indeed, there’s no constitutional requirement for the President to even make such briefings.  The only requirement for the President to report to anybody is given in Article 2, Section 3 of the Constitution, specifically:

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient

From time to time he has to report on Congress on the State of the Union.  That’s it.

So, no, there is no constitutional requirement for the President to permit any particular individual to attend press briefings that he has no constitutional requirement to give in the first place.

So what about that due process claim by the judge?

That comes from the Fifth Amendment, to wit:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Note especially the bolded part “nor be deprived of life, liberty, or property, without due process of law.

It’s pretty clear he’s not being deprived of life.  I think we can all agree on that, right?  And, there’s no property of his of which he’s being denied, correct?  So that leaves liberty.  Is he being deprived of liberty without due process of law?  I think we can dispose of that the same way we disposed of the first amendment claim.  Jim Acosta has no particular “liberty” to a presence in the White House except that granted by the President or those to whom he has delegated that decision making any more than I do.

“But wait,” someone might say. “He was given such access.  Removing it without due process is wrong.”

That’s not how this works.  That’s not how any of this works.  Look, if I invite a reporter in my home, say to discuss events about which I am knowledgeable related to some story the reporter is working on.  And if that reporter annoys me for whatever reason, I can ask him to leave.  And if he doesn’t it’s criminal trespass.  Doesn’t have to be my home.  It could be my officer.

It’s the same way with the President and the White House.  That’s his home and his office.  If he doesn’t want someone there, it’s his right to not permit him.  Some people have tried to rebut this by saying “it’s the people’s house” but, again, that argument wouldn’t work for me.  I couldn’t just walk in there and say “but it’s the people’s house.” And neither can Acosta.

Denying permission that the White House is under no obligation to give, to someone who has no particular right to that permission, to attend press briefings that the President is under no obligation to give, at the White House is not in any way, shape, or form a violation of Jim Acosta’s right any more than it would be for any random person off the street.

Working for CNN does not confer special rights that the rest of us peasants don’t have, no matter how much people like Jim Acosta want it to.

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3 thoughts on ““Acosting” the First Amendment”

  1. The only quibble I have with the above is the assertion that rights are granted to the people via the Constitution. That cannot be. All power the government has, it has because we the people granted that power to the government. To suggest we granted government the power to grant rights just doesn’t make sense.

    In fact, the language of the Constitution (not to mention The Declaration of Independence) is quite plain: our rights come from a source entirely independent of and pre-existing any human constructs — of which the Constitution is one.

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    1. I was very specific in my wording: “what all the Amendments in the Bill of Rights do is forbid the government from infringing of rights held by the people”. The people have the rights. The Bill of Rights does not grant them. It forbids the government from infringing on them.

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  2. We have a significant number of judges in this country who are making their rulings using the legal principle of “but it’s Trump”. It is outrageous but the only way to get rid of them is to impeach them and then replace them with principled jurists. I don’t think that this would politically wash, so the alternative is to keep confirming the principled ones to replace those who have retired.

    The only other alternative, and one which should be saved for the most egregious cases, is the “they have made their decision, now let them enforce it” approach by Andrew Jackson. Not suggesting that this is the direction we should go, but it is also important to remember that the Supreme Court decided on their own what the limits of their power were. Prior to Marbury v Madison, they had little power. Now the courts basically act as a dictatorial legislative branch, mandating all actions by the rest.

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