The Whole Concept of ‘Unlawful Assembly’ Is a Mess

“Unlawful assembly” is like “illegal writing” or “forbidden religious exercise”: There surely may be such a thing, but what qualifies?

Recent weeks have produced a lifetime’s worth of haunting images. Some of them everyone has seen: black-clad “agents” hustling citizens into unmarked vans, “counterdemonstrators” with automatic weapons dogging Black Lives Matter protests. Others I have seen in person: on a recent trip to Portland, Oregon, groups of mothers marching in front of a federal courthouse to protect protesters who had been gassed and beaten during previous demonstrations; on a stroll through a neighborhood park in my small hometown of Eugene, Oregon, a dozen masked “security guards” with assault rifles offering protection to anti-police-violence protesters.

And the backdrop to all these sights is the indelible image of a flag-draped coffin bearing the body of Representative John Lewis on his final trip—this one over a path strewn with rose petals—across the Edmund Pettus Bridge, in Selma, Alabama.

Lewis’s cortege recalled a scene from half a century ago—one that echoed strangely amid the alarms and cries of this haunted July.

On Sunday, March 7, 1965, Lewis and Hosea Williams led a peaceful crowd of some 600 marchers across the Edmund Pettus Bridge. It was a march for voting rights—but it also was a protest against police violence, in particular the police killing of a 26-year-old man, Jimmie Lee Jackson, who was beaten and then shot twice in the back during a voting-rights march on February 18 of that year.

That March day, on the other side of the bridge stood hundreds of Alabama state troopers, sheriff’s deputies, and mounted “possemen” (white locals “deputized” by Dallas County Sheriff Jim Clark). They were armed with rifles, tear gas, batons, and cattle prods. “It would be detrimental to your safety to continue this march,” Alabama State Police Major John Cloud announced. “And I’m saying this is an unlawful assembly. You are to disperse.”

The subsequent violence became known as “Bloody Sunday,” and the shock waves it sent across the country transformed the national debate about voting rights for Black Americans.

The words that echo in 2020 are “This is an unlawful assembly.” This summer, police in Oregon have been “declaring riots” almost every night. And Oregon is not even on the cutting edge: The mayor of one southern hamlet, Graham, North Carolina, recently “suspended” all protests, out of a professed fear that demonstrations against Confederate monuments would lead to violence.  Similarly, the troopers who brutalized the crowd of unarmed men, women, and children on Bloody Sunday saw themselves as enforcers of the law. But, textually, the words unlawful assembly embody a tension, even a contradiction—because the First Amendment, in its very terms, protects “the right of the people peaceably to assemble.” So “unlawful assembly” is like “illegal writing” or “forbidden religious exercise”: There surely may be such a thing, but, in each case, the burden has to be on the authorities to explain why this assembly, this writing, this religious exercise is an exception to the broad protection afforded to these important political rights.

By the logic of unlawful assembly, John Lewis had it coming. He and the marchers had gathered without permission. They had blocked a highway. Told to go home, they stayed. And violence followed. If you want to get technical, the marchers didn’t commit the violence—it was committed by the police and the local white toughs who hung around the fringes of the march. But the marchers had gathered in a place where the police didn’t want them. As one local white official explained to Martin Luther King Jr. in the aftermath of the march, “Everywhere you have been, there has been violence.”

Police and demonstrators during the march on the courthouse in Selma, Ala. on March 13, 1965. (AP)

Some scholars have argued recently that Americans have lost sight of “peaceable assembly” as an important constitutional right. One of them is Tabatha Abu El-Haj, a professor at the Drexel University Thomas R. Kline School of Law, whom I spoke with last week. Abu El-Haj has written extensively about the First Amendment and the right to assemble in particular, including a 2009 article called “The Neglected Right of Assembly.” Abu El-Haj explained to me that while England maintained a relatively tight leash on popular assemblies, the experience of the American Revolution convinced early Americans of the importance of “the people out of doors” as part of citizenship and political participation. Marches, open-air meetings, and protests were routinely held on public property during the 18th and 19th centuries. Not until 1914, in fact, did New York, by then a city of 2 million, even begin to require permits for these marches.

Abu El-Haj said that contemporary First Amendment doctrine has concentrated on freedom of speech, treating the right of groups to assemble as merely a subset of the right of individuals to speak. That’s not in accordance with the words of the Constitution, she pointed out. “Courts should take a textual approach and thus disaggregate peaceable assembly from freedom of speech,” she said.

Of course, even in the heyday of the right to assemble, governments had the power to shut down riots. But the threshold for “reading the Riot Act” was the risk of serious violence—something equivalent to today’s Brandenburg test for incitement to crime. That formulation, announced by the Supreme Court in the 1950s, empowers the government to punish speech as incitement only when it is “directed to and likely to cause imminent lawless action.” By general agreement, lawless action means something more serious than jaywalking, peacefully blocking sidewalks and streets, or even cursing and taunting police.

In addition, Abu El-Haj said, crowds should not be declared “unlawful” unless they are violent and they refuse to disperse after a clear warning. She cited as examples the protests in Philadelphia in late May and early June, in which some marchers burned police vehicles and set fire to or looted stores. “That’s a different situation from much of what we have seen in the last few weeks—largely peaceful protests with violent behavior at the fringes,” sometimes by people who “are there to disrupt the protest,” she said.

Abu El-Haj’s words were echoed by John Inazu, a professor at the Washington University at St. Louis School of Law, who recently wrote an article decrying the overuse of unlawful-assembly laws as “social control.” Over time, he argued, local governments have lost sight of the idea that protest is presumptively protected, and have rewritten unlawful-assembly laws to permit the government to shut down even peaceful protests when they find them inconvenientLast year in The Atlantic, Inazu noted:

Local officials too frequently end protests prematurely or move them to distant locations where they will be less effective. Lawmakers overregulate nonviolent groups that resist majoritarian norms. And many Americans cede too easily to the demands of conformity rather than pursuing and protecting alternative visions of society.

In an interview last week, Inazu told me that many local officials also pay no political or legal price for stopping protests prematurely. “The ability to overpolice or shut down the protests when they should be allowed to continue really advances the objectives of local government.”

Courts have done little to intervene in these choices, he said; there is “virtually no [legal] doctrine on the right of assembly.” Courts should require local governments to show that real disorder is imminent, rather than allowing premature shutdowns, he argued. “Local governments have to take some degree of risk” of disorder before eliminating protests, rather than using unlawful assembly as a phrase meaning “inconvenient.”

The withering of the right to assemble may flow from public attitudes, which have not been particularly tolerant of protest and have become far less tolerant recently. That’s the view of Timothy Zick, a professor at the William & Mary Law School, who has been writing for a decade on regional variation in interpretations of the First Amendment, including local regulation of where people may assemble. Zick notes that many localities now levy hefty charges against protesters to pay for the cost of policing them; many people, he says, find that a reasonable idea, even though it may make even the most determinedly nonviolent citizens, faced with potentially ruinous costs, forswear any public activity. And others have suggested that protests at night are suspicious in themselves. Why is that? Zick asks. “The First Amendment applies when the sun goes down. It doesn’t take a nap.”
Last month, the former Republican National Committee chair Michael Steele suggested that the Portland protesters should prevent criticism from Donald Trump by moving their protests away from the federal courthouse.
Groups of mothers form a wall to protect protesters in Portland, Ore. in July (Alex Lourie / Redux)

Clever, eh? If the government abuses you, go somewhere you won’t make the government mad. That idea, to my mind, stands the ideals of free speech and assembly on their head. The federal courthouse—where federal power is publicly displayed and exercised—is the kind of place where protests, by logic and history, are supposed to take place. When the people assemble in such a place, the government should not greet them right away with militarized threat of force. It should not ever remove them unless it has first made a serious effort to protect their right to be heard—and to separate the violent from the peaceable. And government officials, such as the president and the attorney general, should not be in the business of slandering and misrepresenting the majority of the peaceable.

Demands that protesters “denounce violence” also miss the point. Emerson Sykes, one of the American Civil Liberties Union attorneys challenging the protest ban in Graham, North Carolina, points out that the protests in America represent “a historic moment”—a challenge to ingrained brutality and racism in our police and justice systems. Protesters who themselves commit no crimes have the right to focus on that aim; ritual self-purification is an inappropriate demand—particularly in 2020. A government that itself cannot denounce neo-Nazis invading state capitals has no standing to demand that others apologize for the sins of third parties.

And that takes me back to Selma. It seems like distant history. Yet today, in America, people are in the street fighting for the very same things that the marchers on Bloody Sunday wanted—an end to police violence and free elections. The real scandal is that these basic values remain under siege more than half a century after blood ran on that Alabama bridge.

Citizens United v. Federal Election Commission Oral Reargument – September 09, 2009

Anthony M. Kennedy

But under your position, if corporations A, B, and C, are called to Washington every Monday morning by a high-ranking administrative official or a high-ranking member of the Congress with a committee chairmanship and told to tow the line and to tell their directors and their shareholders what the policy ought to be, some other corporation can’t object to that during the election cycle.

The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject.

Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.

 

.. Theodore B. Olson

What Bellotti also said is — and I think this is also in many decisions of this Court — the inherent worth of speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual.

 

.. Theodore B. Olson

–You said that repeatedly, including most recently in the Wisconsin Right to Life case.

And it first appeared in Buckley itself.

The distinction is very hard to draw between the interest that the speaker is addressing and whether it’s a candidate or an issue, because issues are wrapped up in candidates.

The corporation interest and the interests that its fiduciary officers are representing when it speaks on behalf of the corporation–

John Paul Stevens

I don’t think you are correct to say the Court said there was no distinction.

It said the distinction requires the use of magic words.

And that’s what they said in Wisconsin Right to Life, too.

Both of them said there is a distinction.

Theodore B. Olson

–Well, but the words–

John Paul Stevens

It’s difficult to draw in some cases, but nobody said there is no distinction that I am aware of.

Theodore B. Olson

–Well, what the Court — to use — to use the words of the Court, which occurred repeatedly, is that the distinction dissolves impractical application.

That, Justice Stevens, I think addresses the very commonsense point that when you are addressing an issue, whether you are addressing a referendum matter, whether it is a proposed legislation or a candidate that is going to raise taxes on the corporation, those distinctions dissolve.

It’s all First Amendment freedom.

.. Elena Kagan

Mr. Chief Justice and may it please the Court: I have three very quick points to make about the government position.

The first is that this issue has a long history.

For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.

Number two–

Antonin Scalia

Wait, wait, wait, wait.

We never questioned it, but we never approved it, either.

And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.

Elena Kagan

–I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case — first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley — and then of course in Austin specifically approved those limits.

Antonin Scalia

I don’t understand what you are saying.

I mean, we are not a self — self-starting institution here.

We only disapprove of something when somebody asks us to.

And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn’t disapprove it.

Elena Kagan

Well, you are not a self-starting institution.

But many litigants brought many cases to you in 1907 onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.

 

.. Elena Kagan

Well, I think Justice Stevens was right in saying that the expenditure limits that are in play in this case came into effect in 1947, so it’s been 60 years rather than 100 years.

But in fact, even before that the contribution limits were thought to include independent expenditures, and as soon as Congress saw independent expenditures going on Congress closed what it perceived to be a loophole.

So in fact for 100 years corporations have made neither contributions nor expenditures, save for a brief period of time in the middle 1940’s, which Congress very swiftly reacted to by passing the Taft-Hartley Act.

Now, the reason that Congress has enacted these special rules — and this is the second point that I wanted to make–

 

.. Elena Kagan

I would say either the quid pro quo interest, the corruption interest or the shareholder interest, or what I would say is a — is something related to the shareholder interest that is in truth my view of Austin, which is a view that when corporations use other people’s money to electioneer, that is a harm not just to the shareholders themselves but a sort of broader harm to the public that comes from distortion of the electioneering that’s done by corporations.

Antonin Scalia

Let’s — let’s talk about overbreadth.

You’ve — let’s assume that that is a valid interest.

What percentage of the total number of corporations in the country are not single shareholder corporations?

The local hairdresser, the local auto repair shop, the local new car dealer — I don’t know any small business in this country that isn’t incorporated, and the vast majority of them are sole-shareholder-owned.

Now this statute makes it unlawful for all of them to do the things that you are worried about, you know, distorting other — the interests of other shareholders.

That is vast overbreadth.

.. Antonin Scalia

Congress has a self-interest.

I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Now is that excessively cynical of me?

I don’t think so.

Antonin Scalia

Congress has a self-interest.

I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Now is that excessively cynical of me?

I don’t think so.

Elena Kagan

–I think, Justice Scalia, it’s wrong.

In fact, corporate and union money go overwhelmingly to incumbents.

This may be the single most self-denying thing that Congress has ever done.

If you look — if you look at the last election cycle and look at corporate PAC money and ask where it goes,

Antonin Scalia

Congress has a self-interest.

I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Now is that excessively cynical of me?

I don’t think so.

Antonin Scalia

Congress has a self-interest.

I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.

Now is that excessively cynical of me?

I don’t think so.

Elena Kagan

–I think, Justice Scalia, it’s wrong.

In fact, corporate and union money go overwhelmingly to incumbents.

This may be the single most self-denying thing that Congress has ever done.

If you look — if you look at the last election cycle and look at corporate PAC money and ask where it goes, it goes ten times more to incumbents than to challengers, and in the prior election cycle even more than that.

And for an obvious reason, because when corporations play in the political process, they want winners, they want people who will produce outcomes for them, and they know that the way to get those outcomes, the way to get those winners is to invest in incumbents, and so that’s what they do.

As I said, in double digits times more than they invest in challengers.

So I think that that — that that rationale, which is undoubtedly true in many contexts, simply is not the case with respect to this case.

Anthony M. Kennedy

But under your position, if corporations A, B, and C, are called to Washington every Monday morning by a high-ranking administrative official or a high-ranking member of the Congress with a committee chairmanship and told to tow the line and to tell their directors and their shareholders what the policy ought to be, some other corporation can’t object to that during the election cycle.

The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject.

Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.

Elena Kagan

Well–

Anthony M. Kennedy

When other corporations, via — because of the very fact you just point out, have already been used and are being used by the government to express its views; and you say another corporation can’t object to that.

Elena Kagan

–Well, to the extent, Justice Kennedy, that you are talking about what goes on in the halls of Congress, of course corporations can lobby members of Congress in the same way that they could before this legislation.

What this legislation is designed to do, because of its anticorruption interest, is to make sure that that lobbying is just persuasion and it’s not coercion.

But in addition to that, of course corporations have many opportunities to speak outside the halls of Congress.

Elena Kagan

A lot of them do, which is a suggestion about how corporations engage the political process and how corporations are different from individuals in this respect.

You know, an individual can be the wealthiest person in the world but few of us — maybe some — but few of us are only our economic interests.

We have beliefs, we have convictions; we have likes and dislikes.

Corporations engage the political process in an entirely different way and this is what makes them so much more damaging.

John G. Roberts, Jr.

Well, that’s not — I’m sorry, but that seems rather odd.

A large corporation just like an individual has many diverse interests.

A corporation may want to support a particular candidate, but they may be concerned just as you say about what their shareholders are going to think about that.

They may be concerned that their shareholders would rather they spend their money doing something else.

The idea that corporations just are different than individuals in that respect, I just don’t think holds up.

Elena Kagan

Well, all I was suggesting, Mr. Chief Justice, is that corporations have actually a fiduciary obligation to their shareholders to increase value.

That’s their single purpose, their goal.

 

John G. Roberts, Jr.

So if a candidate — take a tobacco company, and a candidate is running on the platform that they ought to make tobacco illegal, presumably that company would maximize its shareholders’ interests by opposing the election of that individual.

Elena Kagan

But everything is geared through the corporation’s self-interest in order to maximize profits, in order to maximize revenue, in order to maximize value.

Individuals are more complicated than that.

So that when corporations engage the political process, they do it with that set of you know, blinders — I don’t mean it to be pejorative, because that’s what we want corporations to do, is to–

John G. Roberts, Jr.

Well, I suppose some do, but let’s say if you have ten individuals and they each contribute $1,000 to a corporation, and they say,

“we want this corporation to convey a particular message. “

why can’t they do that, when if they did that as partnership, it would be all right?

 

Elena Kagan

–Well, it sounds to me as though the corporation that you were describing is the corporation of a kind we have in this case, where one can assume that the members all sign on to the corporation’s ideological mission, where the corporation in fact has an ideological mission.

Antonin Scalia

General Kagan, most — most corporations are indistinguishable from the individual who owns them, the local hairdresser, the new auto dealer — dealer who has just lost his dealership and — and who wants to oppose whatever Congressman he thinks was responsible for this happening or whatever Congressman won’t try to patch it up by — by getting the auto company to undo it.

There is no distinction between the individual interest and the corporate interest.

And that is true for the vast majority of corporations.

Elena Kagan

Well–

Antonin Scalia

Yet this law freezes all of them out.

Elena Kagan

–To the extent that we are only talking about single shareholder corporations, I guess I would ask why it’s any burden on that single shareholder to make the expenditures to participate in the political process in the way that person wants to outside the corporate forum?

So single shareholders aren’t suffering any burden here; they can do everything that they could within the corporate form, outside the corporate form.

They probably don’t get the tax break that they would get inside the corporate form, but I’m not sure anything else is very different.

Antonin Scalia

Oh, he wants to put up a sign–

John Paul Stevens

Ultra Vires would take care of about 90 percent of the small corporations that Justice Scalia is talking about.

They can’t just — they can’t even give money to charities sometimes because of Ultra Vires.

Giving political contributions is not typical corporate activity.

 

.. Stephen G. Breyer

Is — I — I remember spending quite a few days one summer reading through 1,000 pages of opinion in the D.C. Circuit.

And I came away with the distinct impression that Congress has built an enormous record of support for this bill in the evidence.

And my recollection is, but it is now a couple of years old, that there was a lot of information in that which suggested that many millions of voters think, at the least, that large corporate and union expenditures or contributions in favor of a candidate lead the benefited political figure to decide quite specifically in favor of the — of the contributing or expending organization, the corporation or the union.

Elena Kagan

Yes, that’s–

Stephen G. Breyer

Now, it was on the basis of that, I think, that this Court upheld the law in BCRA.

But we have heard from the other side there isn’t much of a record on this.

So, if you could save me some time here, perhaps you could point me, if I’m right, to those thousand pages of opinion and tens of thousands of underlying bits of evidence where there might be support for that proposition?

Elena Kagan

–Yes, that’s exactly right, Justice Breyer, that in addition to just the 100-year-old judgment that Congress believes this is necessary, that very recently members of Congress and others created a gigantic record showing that there was corruption and that there was the appearance of corruption.

And in that record, many times senators, former senators talk about the way in which fundraising is at the front of their mind in everything that they do the way in which they grant access, the way in which they grant influence, and the way in which outcomes likely change as a result of that fundraising.

Stephen G. Breyer

BCRA has changed all that.

John G. Roberts, Jr.

Counsel, could I ask, it seems — to your shareholder protection rationale, isn’t it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can’t sell their shares or object in the corporate context if they don’t like it?

Elena Kagan

I don’t think so, Mr. Chief Justice.

I mean, I, for one, can’t keep tack of what my — where I hold–

John G. Roberts, Jr.

Well, you have a busy job.

You can’t expect everybody to do that.

[Laughter]

Elena Kagan

–It’s not that — it’s not that I have a busy job.

John G. Roberts, Jr.

But it is extraordinary — I mean, the — the idea and as I understand the rationale, we — we the government, big brother, has to protect shareholders from themselves.

They might give money, they might buy shares in a corporation and they don’t know that the corporation is taking out radio ads.

John G. Roberts, Jr.

So it is — I mean, I understand.

So it is a paternalistic interest, we the government have to protect you naive shareholders.

Elena Kagan

–In a world in which most people own stock through mutual funds, in a world in which people own stock through retirement plans in which they have to invest, they have no choice, I think it’s very difficult for individual shareholders to be able to monitor what each company they own assets in is doing or even to know the extent of the–

Ruth Bader Ginsburg

–In that respect, it’s unlike the union, because the — the worker who does not want to affiliate with a union cannot have funds from his own pocket devoted to political causes.

But there is no comparable check for corporations.

Elena Kagan

–That’s exactly right, Justice Ginsburg.

In the union context, of course, it’s a constitutional right that the unions give back essentially the funds that any union member or employee in the workplace does not want used for electoral purposes.

The government has to keep an eye on their interests.

Elena Kagan

Making Acosta a Federal Case

Question: What does CNN’s Jim Acosta crave more than anything? If you said “attention,” go to the head of the class. It’s a mystery why the White House has given Acosta way more than that. By yanking his “hard pass” after last week’s press conference (don’t ask who was obnoxious; they all were), Acosta has literally become a federal case. CNN filed suit claiming that its reporter’s First and Fifth Amendment rights were violated. More than a dozen news organizations, including Fox, have filed amicus briefs supporting CNN, and even Trump-friendly Fox News judicial analyst Andrew Napolitano has opined that Acosta has a strong case. Mr. Showboat is just where he wants to be — the center of attention — but thanks to President Trump’s gratuitous swipe, he is also a free-press martyr.

Judge hands CNN victory in its bid to restore Jim Acosta’s White House press pass

Kelly, whom Trump appointed to the federal bench last year, handed down his ruling two days after the network and government lawyers argued over whether the president had the power to exclude a reporter from the White House.

In his decision, Kelly ruled that Acosta’s First Amendment rights overruled the White House’s right to have orderly news conferences. Kelly said he agreed with the government’s argument that there was no First Amendment right to come onto the White House grounds. But, he said, once the White House opened up the grounds to reporters, the First Amendment applied.

.. He also agreed with CNN’s argument that the White House did not provide due process. He said the White House’s decision-making was “so shrouded in mystery that the government could not tell me . . . who made the decision.” The White House’s later written arguments for banning Acosta were belated and weren’t sufficient to satisfy due process, Kelly said.

.. White House press secretary Sarah Sanders announced Acosta’s “indefinite” suspension last week after the confrontation at the news conference. Trump and Sanders have had several run-ins with Acosta stretching back to before Trump became president.

.. CNN has argued that the ban on Acosta violated his First Amendment rights because it amounts to “viewpoint discrimination” — that is, the president is punishing him for statements and coverage he didn’t like. The network has also said the action violates Acosta’s Fifth Amendment right to due process because his exclusion follows no written guidelines or rules and has no appeal or review procedures.

.. Until the White House’s action last week, no reporter credentialed to cover the president had ever had a press pass revoked.

.. A government lawyer, James Burnham, argued in a hearing before Kelly on Wednesday that the president was within his rights to ban any reporter from the White House at any time, just as he excludes reporters from interviews in the Oval Office. He said Acosta could report on the president “just as effectively” by watching the president on TV or by calling sources within the White House. He also said CNN wouldn’t be injured by Acosta’s exclusion since CNN has dozens of other journalists credentialed for the White House.

.. Burnham also explained that Trump’s rationale for Acosta’s ban was his “rudeness” at last week’s news conference, in effect arguing that Acosta’s conduct, not his right to free speech, was the relevant issue.

The assertions drew a rebuttal from CNN’s lawyer, Boutrous, who described the ban on the reporter as arbitrary, capricious and unprecedented. He said White House reporters need access to the premises to meet with sources and to report on untelevised “gaggles,” impromptu discussions with press aides and other officials, so that banning a reporter from the grounds harms his or her ability to do their job.

..  Trump has suggested other reporters could face a similar fate if they displease him in some unspecified way.

.. During the presidential campaign in 2015 and 2016, Trump banned more than a dozen news organizations from his rallies and public events, including The Washington Post. But he said he wouldn’t do something similar as president. Last week, he went back on that statement.

.. Trump’s 2020 reelection campaign has used the CNN lawsuit to drum up contributions, portraying the suit as evidence of “liberal bias” — an assertion Boutrous brought up on Wednesday to demonstrate that Trump had political reasons for banning Acosta.

The Legal Precedent That Could Protect Jim Acosta’s Credentials

A 1977 court ruling said that administrations cannot bar correspondents from the briefing room without “due process.”

.. In January 1972, when Sherrill reapplied for White House press credentials, he was again denied without explanation. That’s when the American Civil Liberties Union took his case to federal court. With the ACLU’s help, Sherrill sued the Secret Service for violating his First and Fifth Amendment rights.

By the time a D.C. circuit-court judge ruled in his case in 1977, it had been 11 years after his credentials were originally denied.

.. hen donald trump clashed with Jim Acosta, the chief White House correspondent for CNN, at his post-midterms news conference on Wednesday—and later revoked his press credentials—he most likely knew nothing about the precedent set by the D.C. Circuit Court of Appeals in Robert Sherrill’s case—precedent, experts said, that put the law squarely on Acosta’s side.

“Thank you Mr. President. I wanted to challenge you on one of the statements that you made on the tail end of the campaign in the midterms,” Acosta started, microphone in hand, staring ahead toward the president from the front row of the press conference.

Trump’s lips pursed and then released. “Here we go,” he said, practically breaking the fourth wall.

“If you don’t mind, Mr. President—” Acosta tried.

“C’mon, c’mon, let’s go.” The president let out a half whistle from his mouth and motioned to his rival to hurry up and ask his question.

“—that this caravan was an invasion.”

“I consider it to be an invasion,” Trump replied.

The exchange became testier and Trump’s complexion reddened. “Honestly, I think you should let me run the country. You run CNN. And if you did it well, your ratings would be better,” Trump told the reporter.

Acosta held on to the microphone as a White House intern tried to grab it back from him. “Mr. President, I had one other question, if I may ask, on the Russia investigation,” Acosta said. “Are you concerned that—”

Trump lifted a finger and wagged it from the podium. “I’m not concerned about anything about the Russia investigation, ’cause it’s a hoax.” He walked away from the podium momentarily, readying for his next hit. Acosta gave in and relinquished the mic.

“I’ll tell you what,” the president huffed. “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’re a very rude person. The way you treat Sarah Huckabee [Sanders] is horrible and the way you treat other people are horrible. You shouldn’t treat people that way.”

When Acosta returned to the White House grounds later that evening to do a live shot for Anderson Cooper 360°, the Secret Service asked for his hard pass, which he had held since 2013, and confiscated it. They were just following orders, and he understood that; the orders came from higher up. His access was revoked: He was locked out of the Trump White House.

.. To explain why Acosta’s credentials had been revoked, Sarah Huckabee Sanders, Trump’s press secretary, tweeted a highly edited video on Wednesday that appeared to show Acosta hitting the intern who tried to grab his microphone. Sanders wrote on Twitter, “President Trump believes in a free press and expects and welcomes tough questions of him and his administration. We will, however, never tolerate a reporter placing his hands on a young woman just trying to do her job as a White House intern…” Acosta tweeted back, “This is a lie.”

In actuality, the video Sanders shared was doctored and originally posted by Paul Joseph Watson, a British conspiracy theorist associated with the fake-news website Infowars.

.. The White House Correspondents’ Association denounced “the Trump Administration’s decision to use US Secret Service security credentials as a tool to punish a reporter with whom it has a difficult relationship.”

.. The conservative blogger Erick Erickson tweeted, “Y’all, I’m sorry to defy the tribe, but I’ve watched this video over and over and it looks more like @Acosta had his arm out pointing with his finger and when she tried to pull the microphone down, both his arms went down rather naturally.”

.. Among those in media and politics, the widespread consensus was an obvious one: This was not about safety and security; this was not about an assault. Acosta was punished for the way he went about his reporting.
.. “If there are professional concerns that the White House has about Jim Acosta or anyone else, they should express that professionally. They should be talking about that openly and there should be an effort to determine what, if anything, needs to change. The response is not engaging the Secret Service to pull someone’s credentials.”

“That’s just completely inappropriate and just this side of thuggery in my view,” Sesno added.

.. In public remarks on Friday morning, Trump seemed unremorseful about pulling Acosta’s credentials. The president threatened further punishment for reporters like American Urban Radio Networks’ April Ryan, calling her a “loser.”

“It could be others also” if they “don’t treat the White House and the office of the presidency with respect,” Trump said.

.. “Once the government creates the kind of forum that it has created, like the White House briefing room, it can’t selectively include or exclude people on the basis of ideology or viewpoint,” said Ben Wizner, the director of the ACLU’s Speech, Privacy, and Technology Project.

.. The new steps enunciated in the Sherrill decision to ensure that reporters’ First Amendment rights are not violated include

  • the requirement to give the reporter notice and
  • the right to rebut a formal written decision, which must accompany any revocation.

“We further conclude that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees,” the court’s ruling states. “Such impairment of this interest cannot be permitted to occur in the absence of adequate procedural due process.”

.. “If the Secret Service makes this kind of determination that they’re going to no longer let someone have access, or limit access from the start, there should be a really good reason for that,” Michele Kimball, a media-law professor at George Washington University, said. “And if you are denied that access, there should be some sort of procedural due process for you, [so] that you can find out what happened.
.. “What they’ve done here is not only unwise, but probably illegal,” the ACLU’s Wizner concluded.
.. He clearly relished that role as an outsider, because when he won his 11-year battle with the White House to get credentialed, he opted against it.
.. “The fun thing about this was that when I was finally going to get a press pass, I never applied,” Sherrill told the Times. “I didn’t want to be in the White House. I had been in Washington long enough to realize that was the last place to waste your time sitting around for some dumb [expletive] to give a press conference.”
When all was said and done, Sherrill knew his best work would be done far away from the place he was never allowed to visit.

Who Is Brett Kavanaugh?

Contrary to what supporters say, he’s no originalist.

But Judge Kavanaugh hasn’t earned his originalist badge. It’s being fixed to him to mask the fact that as an appeals court judge, he relentlessly pressed forward a Republican agenda favoring business and religious interests.

.. Judge Kavanaugh leaned a bit toward an originalist approach in two opinions, one in 2008, the other in 2011. But when he was asked in 2016 whether he considered himself an originalist, he didn’t answer, and in a 2017 lecture, he expressed caution. “History and tradition, liberty, and judicial restraint and deference to the legislature,” he explained, “compete for primacy of place in different areas of the Supreme Court’s jurisprudence.”

To a pure originalist, this is an incoherent mixing of methodologies. Any ruling that departs from the original meaning should be thrown out. Judge Kavanaugh has called for no such thing.

.. Instead, he has proudly said that he’s a textualist, which means that he gives primacy to the ordinary meanings of the words of a statute, or the Constitution itself. Textualists steer away from other sources of meaning, like legislative history. Conservatives have often touted textualism for its neutral deference to the legislature. Three of the court’s conservative members — Chief Justice John Roberts and Justices Samuel Alito and Neal Gorsuch — lay claim to textualism as a guiding principle.

But textualism doesn’t serve as an overarching theory for conservative jurisprudence. Textualist interpretation can produce liberal as well as conservative interpretations of statutes. And because ambiguous phrasing in laws leaves judges with choices to make, it doesn’t put much of a restraint on judges. As Judge Kavanaugh has said, quoting the liberal-moderate Justice Elena Kagan, “We are all textualists now.” This means that textualism offers neither a clear dividing line from liberals nor the historical gravitas of originalism.

.. This is clear from the conservatives’ expansive interpretation of the First Amendment’s guarantee of free speech, an approach that has no historical support from the time the First Amendment was written. Despite this, in a series of decisions, from Citizens United in 2010, which opened a faucet of campaign donations and spending, to Janus v. AFSCME in June, which diminished the clout of unions by stopping them from collecting dues from all the workers they represent, conservatives have used the First Amendment to strike down laws that regulate corporations, help unions and limit the influence of money on politics.

.. Tellingly, the court has accepted far more cases involving challenges to regulations of conservative speech than previous courts, with a win rate of 69 percent, compared with 21 percent for cases involving liberal speech. Judge Kavanaugh, too, has embraced this business-friendly interpretation of the First Amendment.

.. With five reliable members, the court’s conservative wing will be in a position to accomplish much, and for the most part it will be easier to achieve its goals without originalism.

.. Expect a reappearance, however, when it comes time to reconsider the constitutional right to abortion access established in Roe v. Wade. With that important exception, originalism has largely served its purpose and can be cast away

.. Judge Kavanaugh’s supporters call him an originalist rather than the pro-business Republican he is because of the theory’s claim that it separates law from politics. As the gap between originalism and the greater goals of conservative jurisprudence widens, however, the claim that the Supreme Court stands above the political fray, already damaged, will become harder to sustain.