Donald Trump has just been thrown into the briar patch:
CNN is filing a lawsuit against President Trump and several of his aides, seeking the immediate restoration of chief White House correspondent Jim Acosta’s access to the White House.
The lawsuit is a response to the White House’s suspension of Acosta’s press pass, known as a Secret Service “hard pass,” last week. The suit alleges that Acosta and CNN’s First and Fifth Amendment rights are being violated by the ban.
The suit is being filed in U.S. District Court in Washington, D.C. on Tuesday morning, a CNN spokeswoman confirmed.
Both CNN and Acosta are plaintiffs in the lawsuit. There are six defendants: Trump, chief of staff John Kelly, press secretary Sarah Sanders, deputy chief of staff for communications Bill Shine, Secret Service director Joseph Clancy, and the Secret Service officer who took Acosta’s hard pass away last Wednesday. The officer is identified as John Doe in the suit, pending his identification.
The legal grounds for the lawsuit?
In a statement on Tuesday morning, CNN said it is seeking a preliminary injunction as soon as possible so that Acosta can return to the White House right away, and a ruling from the court preventing the White House from revoking Acosta’s pass in the future.
“CNN filed a lawsuit against the Trump Administration this morning in DC District Court,” the statement read. “It demands the return of the White House credentials of CNN’s Chief White House correspondent, Jim Acosta. The wrongful revocation of these credentials violates CNN and Acosta’s First Amendment rights of freedom of the press, and their Fifth Amendment rights to due process. We have asked this court for an immediate restraining order requiring the pass be returned to Jim, and will seek permanent relief as part of this process.”
Here is the legal analysis I would like to be able to give:
Give up the mic next time you’ve asked your question, Jimmy.
They might have given the credentials back after a while before this. Now, I think Acosta is gone for good.
I’d probably be a more popular blogger if I left my analysis at that, but it looks like the actual analysis is, annoyingly, a little more complicated. Believe it or not, CNN and Acosta may have a case.
The following analysis is still brief and “blog-tentative” — meaning it’s worth what you’re paying. (Less than that, if you’re subscribing, which you can do by clicking the button on the sidebar.) The main case people seem to rely upon in these situations is Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977). The court there rejected what you would naturally tend to think is the rule: that any denial of access is fine if it’s not done based on viewpoint. (Even with that rule, Trump’s big mouth would give the plaintiffs plenty of grist for a “he banned me because of my viewpoint” mill.) Here’s the court’s analysis on that issue:
Appellants argue that because the public has no right of access to the White House, and because the right of access due the press generally is no greater than that due the general public, denial of a White House press pass is violative of the first amendment only if it is based upon the content of the journalist’s speech or otherwise discriminates against a class of protected speech. While we agree with appellants that arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment, there exist additional first amendment considerations ignored by appellants’ argument.
These considerations can perhaps be best understood by first recognizing what this case does not involve. It is not contended that standards relating to the security of the President are the sole basis upon which members of the general public may be refused entry to the White House, or that members of the public must be afforded notice and hearing concerning such refusal. The first amendment’s protection of a citizen’s right to obtain information concerning “the way the country is being run” does not extend to every conceivable avenue a citizen may wish to employ in pursuing this right. Nor is the discretion of the President to grant interviews or briefings with selected journalists challenged. 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. Finally, appellee’s first amendment claim is not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.
Rather, we are presented with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press, see Branzburg v. Hayes, 408 U.S. 665, 681, 707, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Pell v. Procunier, 417 U.S. 817, 829-35, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), requires that this access not be denied arbitrarily or for less than compelling reasons.
I think that “controlling a disruptive reporter who won’t surrender the mic” would clearly qualify as a compelling governmental interest. Just like judges can control their courtrooms, and remove disruptive participants, the White House has the ability to make sure that reporters take turns and don’t refuse to give up the mic (and that they don’t stand up and shout over others, April Ryan).
That said, Acosta’s behavior, while not exemplary, was not really that over the top. No, he didn’t assault the woman. Yes, he refused to give up the mic, but only briefly. Yes, it’s part of a pattern. Enough of one to avoid the legal roadblocks? That’s not clear.
Even if the White House could be justified in their decision — and I think that’s a close call — they don’t seem to have complied with the necessary procedure spelled out by the court:
We think that notice to the unsuccessful applicant of the factual bases for denial with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is indeed in furtherance of Presidential protection, rather than based on arbitrary or less than compelling reasons.
As I understand it, they gave Acosta no notice or chance to respond in a formal way before issuing the decision. They just revoked his credentials. I’m very dubious about calling access to the press room a personal right that deserves these sorts of protections before it can be withdrawn, but if this case is the relevant precedent (something I can’t establish with this bloggy level of analysis), the White House may not have complied.
Moreover, the lawsuit has not been uploaded to PACER yet, so I don’t know if they cite any of Trump’s numerous comments about Acosta in the past, and whether any of the comments they do cite (if they do) deal with Acosta’s viewpoint. Again, Trump’s mouth often causes him legal problems.
I find this personally annoying, but Showboat Jimmy may — may, I say — have a case.
[Cross-posted at The Jury Talks Back.]