CNN and it’s senior White House correspondent, Jim Acosta, filed suit against President Trump and his personnel for revoking Acosta’s press pass on Tuesday. The complaint and petition for an emergency hearing were filed in federal court in D.C., demanding a temporary restraining order and immediate restoration of the credential.
Two main claims are alleged. The primary is that the revocation of the press pass itself is a violation of Acosta’s First Amendment rights:
“[T]he only reasonable inference from Defendants’ conduct is that they have revoked Acosta’s credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs’ exercise of protected First Amendment activity.”
The second argument is that due process concerning the revocation was not followed — that since the White House didn’t give him notice of the revocation or any way to challenge it, Acosta’s Fifth Amendment rights were violated.
During President Trump’s epic post-election press conference on November 7, Trump called on Acosta. Rather than using his time to ask a question, he opted to criticize Trump for calling the “migrant caravan” an invasion. Acosta told the president that it was not an invasion and that Trump knew it, but chose to demonize immigrants. President Trump rejected the notion entirely and simply stated that they had a difference of opinion. Acosta would not agree to disagree.
He kept challenging the president, and after one minute, Trump had moved on to another reporter. Acosta kept talking and holding a White House handheld microphone given to speakers as they ask their questions. Trump said “that’s enough,” four times in a forceful tone. As he was doing so, the young woman in charge of the microphone reached out to get it back from the irate reporter. At first, Acosta moved his body away so she couldn’t reach. He held the mic close to his body with his right hand while using his left to block and move her arm so that she didn’t grasp the mic. Once she got a hand on the microphone, Acosta put his left hand on it, too, and the woman gave up.
President Trump then called on another reporter. Acosta (still with the mic) started to ask if he was worried about some aspect of the Russia investigation. Trump interrupted, saying he wasn’t worried because the whole Russia business was “a hoax.” He then pointed to Acosta and pointedly said, again, “that’s enough – put down the mic.”
Mr. Acosta refused to do so, continuing to ask the same question, so President Trump stepped away from the podium. Acosta finally relented, and Trump returned, saying that Acosta is a rude person who CNN should be ashamed of. Later that day, when he returned to the White House, a member of the Secret Service denied him entrance and confiscated Acosta’s hard press pass. The “hard pass” allows the bearer to enter White House areas as an employee might, undergoing a less onerous security check, and without an invitation or request for entrance.
Can he get it back?
Acosta and CNN say they know the pass was revoked for the views and content of Acosta and CNN. How do they know? Well because, they claim, “it’s the only reasonable inference” to be drawn from Trump’s behavior. If they can convince a judge of the same notion, they will win. Among the strongest protections offered by the First Amendment, as interpreted by courts, is against viewpoint discrimination. In a case where Chicago police allowed picketing on certain subjects, but not others, the Supreme Court said in 1972 that:
“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
So, you can tell picketers they may not have a permit during rush hour, or be allowed to chant through a bullhorn in the wee hours, but not what they chant or the cause they picket for or against. If they run afoul of these time, place, and manner restrictions, they may get in trouble, but not because of the ideas themselves. Is that what Trump did here? Is it so plain to see?
Lack of Evidence
In the entirety of the 92 pages filed with the court by CNN and Acosta, they present no evidence that the Trump administration revoked Mr. Acosta’s pass because of his opinion, reporting, or ideas. The keystone of the case rests on the notion that the pass was pulled “because the President and his administration do not like CNN or Acosta’s reporting.”
The suit goes on to identify many of the times Trump has criticized CNN and Acosta by name and said bad things about them. Well, they certainly have shown that Donald Trump often has a low opinion of CNN. Almost beyond any doubt, that case is well proven. But the rest? There’s no there, there. In an irony that seems lost on the author of the pleadings, the fact that Trump has continued to engage with CNN reporters, including Jim Acosta during the very press conference in controversy, argues against their case.
Trump trashes CNN loudly and often, did not need to call on Acosta, and could simply have ignored him that day and during any other presser. That he did give Acosta a chance to speak — and did so often — seems a high hurdle against the plaintiffs that they do nothing to meet in the suit. The Trump administration has not filed a reply yet, but it will assuredly claim that Mr. Acosta’s reporting had nothing to do with the revocation of his pass. It was his behavior during the press conference, including actively refusing to give up the microphone, as well as Acosta’s continual and ongoing engagement with the president as a pundit rather than a reporter.
On the Fifth Amendment claim, CNN and Acosta are hoping a 1977 ruling from the D.C. Circuit Court of Appeals will help them. That case involved an applicant for a press pass. The man was given a poor security recommendation by the Secret Service and was denied a pass. The court held that since the right to report was a fundamental one guaranteed by our First Amendment, any applicant was entitled to due process. The appellate court affirmed the lower court judgment “requiring notice, opportunity to be heard, and a final written statement of the bases of denial.”
How the due process rights guaranteed of pass applicants can mandate the President keep in place a reporter that the White House has deemed unwelcome remains to be seen and was not discussed in the pleadings.
White House Press Secretary Sarah Sanders said:
CNN, who has nearly 50 additional hard pass holders, and Mr. Acosta is no more or less special than any other media outlet or reporter with respect to the First Amendment.
Ted Boutrous and Ted Olson, from the Gibson, Dunn & Crutcher firm, represent CNN and Acosta. They are among the finest advocates in the country. Olson is the former United States Solicitor General under George W. Bush. The case will be heard by Judge Timothy Kelly, a Trump appointee who has been on the bench since September 2017.