Kelly ruled that efforts by the White House to afford Acosta due process were “belated” and “hardly sufficient.”
“Whatever process occurred within the government is still so shrouded in mystery that the government could not tell me at oral argument who made the initial decision to revoke Mr. Acosta’s press pass,” Kelly said from the bench.
Friday’s hearing completed proceedings that began in court on Wednesday, when attorneys for CNN told Kelly that Acosta’s Fifth and First Amendment rights had been violated while White House attorneys argued that his credentials had been revoked for disruptive behavior which they have a right to curtail.
“We are gratified with this result and we look forward to a full resolution in the coming days,” Acosta said in a written statement. “Our sincere thanks to all who have supported not just CNN, but a free, strong and independent American press.”
Outside the courthouse Friday morning, Acosta thanked the judge and members of the press who supported him. “Let’s get back to work,” he said.
In ruling on the temporary injunction, Kelly had to determine whether withholding Acosta’s credentials would cause him “irreparable injury loss or damage.” While the White House argued that CNN had 50 other credentialed reporters, the judge ruled, citing precedent, that CNN and Acosta have separate interests: CNN sending another reporter would not alleviate the damage inflicted upon Acosta.
“The granting or denial of a TRO is not a ruling on the merits, but key considerations include the likelihood of ultimate success of the plaintiff at trial, as well as the harm the plaintiff will suffer if interim relief is denied,” Davd Lurie, a New York-based attorney, told me Wednesday. Lurie emphasized that Sherrill v. Knight, the 1977 case decided in favor of a reporter denied White House credentials, was on the books in the D.C. Circuit and provided direct precedent for Acosta’s case.
Columbia University’s Knight First Amendment Institute called the ruling a “victory for press freedom.”
“We need reporters to be able to ask tough questions in these press briefings without having to fear that their access will be revoked as a result,” Jameel Jaffer, the Knight Institute’s executive director, said in a statement. “The First Amendment forecloses the White House from selectively revoking access on the basis of a reporter’s viewpoint.”
The ACLU said Friday that the White House’s attempts to stifle tough journalists is backfiring.
“Today’s decision reaffirms that no one, not even the president, is above the law,” Ben Wizner, director of the ACLU’s Speech, Privacy, and Technology Project, said in a statement. “The White House surely hoped that expelling a reporter would deter forceful questioning, but the court’s ruling will have the opposite effect. The freedom of the press is a bedrock principle, and our democracy is strengthened when journalists challenge our leaders rather than defer to them.”