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Jonathan Peters @jonathanwpeters
, 9 tweets, 2 min read Read on Twitter
Some thoughts on the legal implications of pulling Acosta's hard pass ...
Public-affairs reporting is facilitated by complex system of access rights & norms. Recurring question is whether a journo has a 1st Amend right of access to info or places closed to the public but open generally to press — and some lower courts have said yes.
Leading case was Sherrill v Knight, decided in 1977 by DC Circuit. Sherrill was writer for The Nation, and he sued various govt offices after he was denied WH press pass. Ultimately, DC Circuit said Sherrill had 1st Amend right of access to WH news conferences.
Why? Because they were “generally inclusive” of the press.
Sherrill opinion made clear that it did not interfere with the president's discretion “to grant interviews or briefings with selected" journos. Critical fact was whether access was “generally inclusive” of press.
If "generally inclusive," then excluding a journo arbitrarily or absent good cause would implicate the First Amendment.
As the Sherrill court observed, “It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all.”
Lower courts have used that approach—protecting journo access where it’s “generally inclusive” of the press, while otherwise allowing officials selectively to grant interviews and give out info—in many contexts: access to tax records, press tables, prosecutorial records, etc.
All of which is to say: A critical question, constitutionally, is whether Acosta's hard pass was pulled "arbitrarily" or "for less than compelling reasons." Talk amongst yourselves.
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