Mending the First Amendment

United States White House


President Trump strode to the lectern in the East Room for a news conference with the White House press corps; Jim Acosta, CNN’s chief White House correspondent, was in his customary front-row seat. Some 2,600 miles to the west, Ted Boutrous ’87 (JD) was watching the television in his office 54 stories above the streets of Los Angeles.

The stage was set for one of the most remarkable legal challenges in the nation’s history: the president of the United States as defendant in a lawsuit alleging infringement of the First Amendment rights of freedom of the press.

Boutrous had been “keeping an eye” on the White House relationship with the media. He was especially troubled by the president’s habit of referring to certain journalists as an “enemy of the people,” especially after the White House excluded CNN reporter Kaitlan Collins from a White House event the previous summer because they deemed as “inappropriate” questions she had asked the president earlier in the day.

That event precipitated online conversations with Boutrous and other attorneys versed in the First Amendment that guarantees freedom of speech and freedom of the press. The exchanges focused on Sherrill v. Knight, a case dating from the Nixon administration, when the court had ruled the First Amendment limited the right of the White House to deny access to journalists. Robert Sherrill, a journalist with a reputation for writing sensationalist stories, was denied access to the White House. The court ruled protection “afforded newsgathering under the First Amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons.”

Boutrous was watching the Nov. 7 news conference when Trump called on Acosta. The president and the reporter had had a contentious relationship dating to the Trump campaign. CNN was one of the primary targets of the president’s frequent “fake news!” accusations of reporting he found critical or did not square with his version of events.

“Thank you, Mr. President,” Acosta began. “I’d like to challenge you on a statement you made at the tail-end of the campaign, the midterms …”

“Ah, here we go,” the president responded.

Acosta asked the president about the migrants — the “caravan” — who were then on their journey from Central America to the United States border with the purpose of requesting political asylum. The president had repeatedly referred to the caravan as “an invasion,” and Acosta pressed him on the characterization.

Podium at White HouseThe interchange quickly became tense. The president sought to move on. Acosta persisted, feeling the president had not answered his question. A White House intern attempted to take the microphone from Acosta, who held onto it and continued to try asking his question. The president called on a different reporter, then returned his attention to Acosta.

“Honestly, I think you should let me run the country and you run CNN, and if you did it well your ratings would be much better,” the president said. “CNN should be ashamed of itself having you working for them. You are a rude, terrible person. You shouldn’t be working for CNN. You are a rude person. You are the enemy of the people.”

Enemy of the people. Boutrous’ ears pricked up on hearing — again — language used by despots and dictators to refer to those who challenge them, not the elected president of the United States.

After the news conference, Acosta left the White House to go to dinner. Returning later for a live appearance on Anderson Cooper 360, Acosta was stopped at the Pennsylvania Avenue gate that reporters often use.

“I’ve just been denied entrance to the WH,” Acosta tweeted, and posted a video of a Secret Service officer removing his “hard pass,” routinely provided to reporters who regularly cover the White House to expedite entry and exit from the grounds.

Reaction was swift and almost universal in its support of Acosta. Even conservative-leaning media outlets generally supportive of the president were critical of the move. Former ABC correspondent Sam Donaldson, noted for his tough questioning of previous administrations, said in a statement, “I was aggressive in posing questions and pursuing answers because the job of obtaining factual information from and about the public servants is a job that contributed to holding the government accountable to the citizens of this country.”

Presidents and the media that report on them have an adversarial relationship that dates back to the creation of the republic. USD Political Science Professor Del Dickson says the British concept of “seditious libel” let the government go after critical journalists. A variation of this was used by John Adams in developing the 1798 Alien and Sedition Acts that restricted, among other things, freedoms of speech and press that had been enshrined in the Constitution less than 10 years before.

Dickson says that wartime presidents used censorship and at least the threat of prosecutions more than others.

“Lincoln had editors of critical newspapers jailed and wanted them tried by military tribunals, not the civilian courts,” he says, emphasizing that the notion of a neutral press is relatively new. In Lincoln’s day, screaming headlines — broadsides — were typically partisan screeds.

“Lincoln exercised broad powers during the war that would never fly under normal circumstances, including suspending the right of habeas corpus. He may have overreached, but it’s easy to see why he would as president of a nation at war with itself. The current situation isn’t even remotely the same thing.”

Boutrous says there had been conversation since early in the Trump presidency about challenging discrimination based on content that the president didn’t like.

“Many of Mr. Trump’s broadsides had been directed at CNN, including Jim Acosta,” Boutrous says. “When the White House took away his access, it seemed to me a line had been crossed. I sent an email to David Vigilante (CNN Legal’s executive vice president) and asked, ‘Can we sue now?’”

From there, Boutrous says, things happened at breakneck speed. “Jim’s pass was revoked on a Wednesday. We got the green light on Thursday. The hearing was the following week.”

Boutrous quickly assembled teams from various offices of Gibson, Dunn & Crutcher, where he serves as partner and co-chair of the firm’s Litigation Group.

“We had a briefs writing team; we had a factual team doing complaints and declarations, and we put together a whole case in three or four days,” he says. “We were ready to go the distance if we had to.”

The CNN suit asked that Acosta’s hard pass be immediately restored and refrain from further discrimination based on his reporting. The hearing was scheduled for Nov. 14 — exactly one week after the news conference.

On the evening of Nov. 13, Boutrous practiced the same routine as he did arguing landmark cases before the Supreme Court, including Wal-Mart Stores Inc. v. Dukes, that set important precedent governing class action suits, and Hollingsworth v. Perry, that invalidated California’s Proposition 8 prohibiting same-sex marriage. The USD School of Law grad likens his preparation process to being in law school again.

“I’m big on Q&As and one-pagers that put the key arguments in bite-sized pieces, and do an outline of key points,” he says, adding that he sometimes rehearses before a mirror. 

“It’s a lot like being in law school, really. You’ve got the cases in a compressed time period and you don’t know what the questions are going to be. You have to know the material inside and out and be able to then organize it on your feet, based on whatever questions you get.”

Boutrous and three Gibson, Dunn & Crutcher attorneys appeared for the plaintiffs before D.C. District Court Judge Timothy Kelly, opposite four Justice Department lawyers. Speaking for the plaintiffs, Boutrous cited the Sherrill case, which required the White 

Vintage typewriter next to document beginning "we the people"

House to demonstrate a clear and consistent process and a mechanism to appeal for revoking any reporter’s credentials.

“I said [the White House rationale for taking the pass] was a warped view of journalism and the First Amendment, because they really didn’t seem to respect the fact that the public owns the White House. The president works for the people and the press is there to keep an eye on the president and the White House on our behalf.”

Judge Kelly’s decision came quickly. But for Boutrous and his team, it seemed like forever.

“We got word the ruling would be handed down at 3 p.m. the next day,” Boutrous recalls. “Then it was moved to 10 a.m. on Friday. We were confident that we would prevail, but you just never know. We were sitting with Jim Acosta on pins and needles, waiting. Finally, we got it: He ordered the hard pass restored. Acosta immediately went to the White House and within the hour had his pass back. Rarely in litigation do you have such instant gratification, get a prize for the win.”

Boutrous headed back to Los Angeles “in a very good mood.” But by the time his plane landed, Acosta and his attorneys had received communication from the White House acknowledging the judge’s ruling and giving notice that Acosta’s hard pass would indeed be revoked, detailing the reasons why.

“We were given until Sunday to respond, which we just thought was outrageous,” Boutrous recalls. “But we launched back into developing a response. We geared up to be back in court on Monday.”

The White House subsequently issued another missive, stating the pass would be permanently restored but new behavior standards for news conferences would be forthcoming. Critics, including Washington Post associate editor Bob Woodward — whose reporting was fundamental to revealing the Watergate scandal to the world — opined the suit was a bad idea, saying it played into the president’s strategy of demonizing journalism.

In his Los Angeles office, Dodger Stadium visible in the distance over his right shoulder, the Hollywood sign at a glance to the north, Boutrous saw the suit as not just a victory for Acosta and CNN but for the Constitution and the American political system.

“The president of the United States tried to control who can cover him and how,” he says. “The presidency is not Donald Trump or Barack Obama or George Washington or Abraham Lincoln. It is an office that belongs to the people of the United States. We set an important precedent and now the White House knows it can’t try to suppress the freedom of the press.” — Timothy McKernan

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