DC Appeals Court Sides With Reporter Suspended By The White House

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A three-judge panel recently ruled in favor of Playboy Magazine’s White House Correspondent, Brian Karem, after he had been reprimanded by White House Press staff over an incident back in 2019. The aforementioned incident involved former Trump Aide, Sebastian Gorka, during a press summit in the White House’s Rose Garden.

According to the court opinion, after President Donald Trump finished his closing remarks for the summit, Mr. Karem apparently shouted a question in his general direction, but he received no response, and Karem was met with jests and jeers from the crowd. In an attempted light-hearted response, Karem responded to the crowd with, “this is a group eager for demonic possession”.

Karem’s response was met with scattered laughs, however, Gorka condescendingly retorted with, “and you’re a ‘journalist,’ right?”. This resulted in an escalated encounter between the two men as Karem suggested that he and Gorka, “[could] go outside and have a long conversation”. Gorka took this as a threat and incredulously dismissed Karem for “threatening [him] in the Rose Garden”.

Here is a video of the dispute below:

Gorka eventually stormed away after more words were exchanged between him and Karem, but Karem eventually found Gorka later in order to attempt some kind of reconciliation for the earlier scene that had occurred between the two men in front of all the cameras covering the summit. Gorka refused the gesture, and Karem was eventually handed a notice for 30-day suspension three weeks after the incident by then-Press Secretary, Stephanie Grisham.

The White House claims that Karem’s “demonic possession” comments were “unprofessional” and acknowledged that the proper decorum for press meetings had never been explicitly written down, but was widely understood. However, the Federal District Court upheld an injunction blocking the White House’s ability to issue the suspension, which is a decision that was appealed by the Justice Department.

The court opinion delivered in the case of Karem v. Trump was written by D.C. Circuit Judge, David Tatel, who was a Clinton appointee. The 19-page document detailing the court’s opinion, which was handed down by the three-judge panel for the D.C. Circuit Court of Appeals, states that Karem’s suspension was unfair and in violation of his First and Fifth Amendment rights. The other judges of the Circuit Court mentioned were Chief Judge, Sri Srinivasan, and the other Circuit Judge of the court, Cornelia Pillard. Both of the previously mentioned Judges were Obama appointees.

The White House had never before issued clear guidelines and conduct, nor had they outlined potential consequences for such an outburst deemed worthy of punishment. The most recent example the court opinion examined as a potential precedent for the decision was in the case of CNN v. Trump, which invoked the revocation of CNN White House Correspondent, Jim Acosta’s, press pass after a heated exchange between him and Trump back in 2018.

CNN argued that Acosta’s First and Fifth Amendment rights were violated and that the White House was abusing its power at the expense of freedom of the press. The district court preliminary enjoined the suspension of Acosta and found him likely to be successful on his due process claim. The civil suit was eventually dropped, and Acosta’s privileges were reinstated.

The main issue that Karem and Acosta/CNN had such a strong case built upon was the fact that the White House had issued out such a punishment on both individuals without due process of clearly outlining guidelines and consequences for not abiding by such stipulations.

Instead of appealing the CNN decision, Trump’s staff sent Acosta a letter that warned of future disturbances would result in disciplinary action. However, the letter acknowledged that the White House hoped to avoid establishing a written code of conduct in hopes that journalists abide by norms previously established. 

Transferring the logic of the case involving Acosta to the case involving Karem, Tatel dismissed the White House’s fear of a future inability to police behavior such as a reporter “mooning” the President. Tatel responded to this “raising the specter of the absurd” in his opinion by stating 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.”

Concluding his opinion, Tatel asserts that the White House could carry out whatever punishment it would like as long as they established clear cut guidelines, but the lack thereof would confirm that Mr. Karem’s due process rights were violated. In other words, While this may seem like an absolute win on behalf of the First Amendment, the district court’s opinion told the White House it could punish somebody for something that they didn’t even know was “wrong”.

Mr. Karem’s attorney, Theodore Boutrous applauded the decision and issued a statement about the court’s decision.

“We are very grateful for the powerful opinion from the D.C. Circuit and are proud to stand with Brian Karem against an administration that regularly demeans and seeks to chill freedom of the press," Boutrous said in an email. "Particularly today where journalists are facing attacks from all directions across the country, this case should let journalists know that the courts will not tolerate these unconstitutional actions.”

While many will assume that this is a victory for free speech in the US, this case is more of a procedural reminder that rules and guidelines might not exactly be rejected by the courts if such a decision were to be litigated. However, due to Karem’s career as a journalist, a 30-day suspension was a punishment that could harm his career without having given prior notice.