CNN’s Acosta Privilege. Does the First Amendment require the President to listen to a partisan and inaccurate lecture? - Tác giả James Friedman

The U.S. District Court for the District of Columbia will soon have to consider what America owes to a CNN television correspondent named Jim Acosta. Today he and CNN filed a lawsuit asserting that unlike almost every other person in the country, Mr. Acosta has a constitutional right to a “hard pass” allowing him to enter and exit the White House unescorted and uninvited. Whatever one thinks of his novel legal theory, both in his lawsuit and at his appearance last week at the White House, Mr. Acosta has mischaracterized recent events.

Today’s lawsuit, which names the President and various government officials as defendants, arrives after the White House revoked Mr. Acosta’s pass following his boorish breaches of protocol at last Wednesday’s presidential press conference.

Here’s how the lawsuit describes the scene as the President showed up to share his thoughts on Tuesday’s midterm elections:

President Trump delivered opening remarks and then invited questions from the media in attendance. Acosta, sitting in the front row, raised his hand. President Trump called on Acosta to “[g]o ahead” with a question. Acosta was one of the first reporters the President called on for questions.

Speaking through a hand-held microphone, as did all the White House journalists who asked questions, Acosta asked a question about one of President Trump’s statements during the midterm campaign—namely, whether a caravan making its way to the United States from Central America constitutes “an invasion” of the country, a significant feature of the President’s messaging during the just-ended campaign.

This is not an accurate rendering of what happened. A video recording of the event shows that after four reporters took their turns asking questions, the President called on Mr. Acosta, who made it clear that he would not simply be asking questions and seeking information as reporters do but intended to provide a rebuttal to recent comments made by the President. “I wanted to challenge you on one of the statements that you made in the tail end of the campaign—in the midterms,” said the CNN commentator.

Mr. Acosta mentioned Mr. Trump’s characterization of the immigrant caravan making its way through Mexico as an “invasion.” At this point Mr. Acosta did not ask a question but simply issued a declaration. “As you know Mr. President, the caravan was not an invasion. It’s a group of migrants moving up from Central America towards the border with the U.S.,” said the CNN correspondent.

So instead of simply serving as a reporter Mr. Acosta chose to offer commentary—and according to standard dictionaries he was wrong. The large group of immigrants had crossed illegally into Mexico and plainly intended to illegally enter the U.S.

Mr. Acosta may think that an invasion must include a military force but Mr. Trump’s use of the word is common. Merriam-Webster defines invade as “to enter for conquest or plunder,” but also “to encroach upon” or “infringe.” Other dictionaries have similar definitions, such as “to intrude” or “violate.”

Having wrongly asserted that the caravan could not be called an invasion and wrongly asserted that Mr. Trump knew he was saying something untrue, Mr. Acosta then asked why Mr. Trump had done so and if he had “demonized” immigrants. Yes, Mr. Acosta was now asking a question, but doing so while demanding that the President accept a false premise.

Mr. Acosta then interrupted the President as he tried to answer. Then Mr. Acosta editorialized again:

“Your campaign had an ad showing migrants climbing over walls and so on. But they’re not going to be doing that.”

Is Mr. Acosta now a spokesman for the caravan? After another interruption, Mr. Acosta insisted on continuing to talk after the President called on a reporter. Then Mr. Acosta fended off a White House intern as she attempted to retrieve the microphone to allow others to ask questions.

The First Amendment prevents the President or anyone else in the federal government from restricting the ability of citizens to report and publish. Does it also require the President to listen to ill-informed lectures for as long as the lecturers choose to speak? Obviously if everyone had the right to refuse to surrender the microphone at press conferences the result would be fewer members of the press corps having an opportunity to ask questions, not more.

But there’s something special about Mr. Acosta and about CNN, at least according to the lawsuit. The suit argues that special White House access not available to the general public is “essential” for reporters like Mr. Acosta, and that CNN is suffering from his absence, even though many other CNN staff still enjoy such access.

There are no doubt myriad online producers and reporters who would love to have the privileges enjoyed by CNN and its star commentator. But are Mr. Acosta and his network entitled to such privileges?

The Journal’s Jacob Gershman reports:

A similar question confronted a federal appeals court in Washington, D.C. more than 40 years ago. That case was brought by a Washington correspondent for the Nation who was denied White House press credentials for vague security reasons.

The appeals court in the 1977 ruling, Sherrill v. Knight, said the public doesn’t have a right of access to the White House and that a president can grant one-on-one interviews to whomever he chooses.

But the court said there were “important First Amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists” and that at minimum, a journalist shut out of the White House has the right to a lodge a formal protest and get a written explanation for a denial.

UCLA law professor Eugene Volokh said the White House doesn’t necessarily need to have a powerful reason to keep Mr. Acosta out. More recent First Amendment case law suggests that the president could win by convincing a judge that the decision was merely reasonable, according to Mr. Volokh.

The key for the White House, he said, is showing that it took action against the CNN reporter not based on his reporting or critical views about Mr. Trump but because of his conduct at news conferences.

His conduct last week was reason enough. Yet again and again the suit demands special constitutional treatment for Mr. Acosta.

How exactly does one qualify as a member of the entitlement estate?