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Friday, November 16, 2018

White House must return Acosta credentials

According to news reports, District Judge Timothy Kelly ruled from the bench, granting a TRO based on the failure to provide process, without reaching the First Amendment question.

It will be interesting to see if the White House appeals. Although the order was styled as a TRO, the court would treat it as an appealable preliminary injunction should the government choose to appeal. But the court never reached whether the First Amendment in any way limits control over press access. And the due process focus means that, in theory, the White House and Secret Service could give him process tomorrow and reach the same decision. There is a motive to return the credential and let the litigation play out in the district court first.

Update: Garrett Epps (Baltimore) at The Atlantic ties Kelly's decision to the unsung decision in Island Trees v. Pico, in which SCOTUS held that the school district had unfettered power to select books to place on the shelves, but the First Amendment imposed limits on the district removing books already placed (based on objections to content. I highlighted Pico as an important example of why Brennan was the heir to Holmes in protecting free speech, although a decision that gained little traction, including in debates over internet filters in libraries. I agree with Garrett that it would be nice to see a revival of the decision, including in a new context.

Posted by Howard Wasserman on November 16, 2018 at 10:48 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

Just correcting it :

The link that has been put by me down there , is not the ruling , but the plaintiff's motion for the restraining order .

Apologizing , I shall put later the ruling .....

Posted by: El roam | Nov 16, 2018 2:54:37 PM

I don't get it. Why is it so hard for courts to just get the terminology right? There are different rules for TROs PI's, such as TRO's expire.

Posted by: Biff | Nov 16, 2018 2:37:18 PM

One may reach the ruling here :

https://www.courtlistener.com/recap/gov.uscourts.dcd.201611/gov.uscourts.dcd.201611.2.0_1.pdf

Thanks

Posted by: El roam | Nov 16, 2018 2:06:25 PM

Just not to forget , that when combining preliminary injunction , and first amendment issue ( and surly there is here one ) the Supreme court held that :

The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,373 (1976) (citing N.Y. Times Co. v. United States, 403 U.S. 713 (1971)).

End of quotation :

So , this is a very significant consideration , when dealing with hardship balance between both parties . If such injunction is not issued , the damage is simply irreparable .

Thanks

Posted by: El roam | Nov 16, 2018 11:39:06 AM

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