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White House Cannot Suspend Playboy Reporter's Press Credentials Without Fair Notice

WASHINGTON, DC - JULY 11:  Brian Karem of Playboy Magazine (2nd R) argues with conservative military and intelligence analyst and former deputy assistant to President Donald Trump Sebastian Gorka (R) after the President made a Rose Garden statement on the census July 11, 2019 at the White House in Washington, DC. President Trump, who had previously pushed to add a citizenship question to the 2020 census, announced that he would direct the Commerce Department to collect that data in other ways. (Photo by Alex Wong/Getty Images) Brian Karem arguing with Sebastian Gorka during 2019 Social Media Summit
By Joseph Fawbush, Esq. on June 08, 2020 4:10 PM

The White House suspended the press credentials of Playboy's White House correspondent after an incident during the 2019 Social Media Summit. Brian Karem, who is also a political analyst for CNN, and former Deputy Assistant Sebastian Gorka got into two heated arguments in the Rose Garden and the White House Palm Room after President Trump's remarks. Subsequently, then-Press Secretary Stephanie Grisham suspended Karem's hard pass, which allows on-demand access to the White House. Karem sued to enjoin the suspension, which the District Court granted.

A First Amendment Right

Eligible D.C.-area journalists who report on the White House can receive a hard pass, which allows them to attend press conferences and otherwise be on the premises to report on events. The White House is not obligated to do press conferences or allow reporter access. However, in the seminal 1971 case Sherrill v. Knight, the D.C. Circuit Court of Appeals held that since the White House voluntarily allows access to D.C.-based qualified journalists, a hard pass cannot be revoked for less than compelling reasons or it violates the First Amendment.

In the almost 50 years since Sherrill v. Knight, no White House correspondent had their hard pass revoked or suspended. However, in 2018, CNN's Jim Acosta had his hard pass revoked after refusing to give up the microphone at a press conference. After this revocation, which Acosta successfully sued to enjoin, the White House created several rules for press corps behavior. However, in a letter to Acosta, the White House wrote that it declined to get into specific, elaborate rules in open areas of the White House “in the hope that professional journalistic norms will suffice to regulate conduct in those places."

“A Group Eager for Demonic Possession"

After the 2019 Social Media Summit, Karem asked a question of the departing President Trump, which the President ignored. This led to taunts from summit attendees, which prompted Karem to say “this is a group eager for demonic possession." Gorka took offense, and the two engaged in a brief but heated exchange in which Karem said the two could “go outside for a long conversation." Video is available of the argument. Later, Karem approached Gorka in the Palm Room, attempting to explain his remark, but the two sides remained at odds.

No Fair Notice

The D.C. Court of Appeals, when determining whether Karem had to serve out the remainder of his suspension, held that the “essential protection of fair notice" applies to the revocation or suspension of a journalists' hard pass. Because the 2019 Social Media Summit was not a press conference, and the White House had not set forth rules, Karem was not aware of penalties that could occur for “purportedly unprofessional conduct."

However, the unanimous panel, in its decision, did not hold that the White House had no authority to revoke or suspend a “rogue" journalist's hard pass. In response to a hypothetical raised by White House lawyers, the panel noted that “the White House can rest assured that principles of due process do not limit its authority to maintain order and decorum at White House events by, for example, ordering the immediate removal of rogue, mooning journalists." Let's hope it never comes to that.

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