CNN made good on its threat Tuesday, filing a lawsuit against the Trump administration in federal court demanding the White House return reporter Jim Acosta’s permanent press pass.
The White House rescinded Acosta’s pass last week after Acosta refused to yield the floor to other reporters in a press conference. When a White House aide went to take Acosta’s microphone to allow another reporter to ask a question, Acosta battled with her, eventually pushing her away.
The incident apparently ended the White House press office’s tolerance of Acosta, who regularly badgers the President and Press Secretary Sarah Huckabee Sanders out of turn. On the day in question, Acosta had already asked his one allotted question and received an answer, and refused to yield the floor, peppering President Donald Trump with a barrage of follow-ups, without giving the President time to respond.
The incident resulted in a back-and-forth between Trump and Acosta and, eventually, Acosta’s indefinite suspension from his permanent position in the press room.
Such an action, CNN contends in its Tuesday filings, is blatantly unconstitutional.
“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,” CNN said in a press release issued Tuesday morning. “We have asked the court for an immediate restraining order requiring the pass to be returned to Jim, and will seek permanent relief as part of this process.”
This morning, CNN filed a lawsuit against @realDonaldTrump and top aides. The White House has violated CNN and @Acosta‘s First Amendment rights of freedom of the press and Fifth Amendment rights to due process. Complaint: https://t.co/43oX6L8xA7 pic.twitter.com/RvJ0Cgh6oi
— CNN Communications (@CNNPR) November 13, 2018
The suit names not just the Trump administration as a defendant, but Press Secretary Sarah Huckabee Sanders, White House Chief of Staff John Kelly, and the Secret Service agent who physically revoked Acosta’s credentials as well.
CNN claims stripping Acosta of his press pass violates his — and the network’s — right to freedom of the press, though CNN has other reporters who maintain permanent press credentials, and Acosta still has the access to the White House that comes as part of being a member of the White House Press Corps. He can also apply for a daily press pass that allows him to attend White House press briefings and ask questions (though it’s not clear whether the White House press team would approve it).
The network also claims Acosta’s Fifth Amendment rights were violated. The Fifth Amendment protects American citizens from being deprived of life, liberty, or property, by the government, without “due process of law.” While this may be the stronger argument, it’s not clear that Acosta’s permanent press pass was actually his. The White House press office issues permanent passes subject to known regulations, and a violation of those rules has clearly articulated consequences.
Here is CNN’s lawsuit against Trump challenging the revocation of Jim Acosta’s credentials (isn’t up in PACER yet) — it has three claims, under the First Amendment, Fifth Amendment (due process), and the Administrative Procedure Act (final agency action) https://t.co/YTTDFiH3lo pic.twitter.com/VnmTKQWNeo
— Zoe Tillman (@ZoeTillman) November 13, 2018
CNN is relying on a single case to support their allegations, Sherrill v. Knight, which was decided more than four decades ago. CNN’s lawyer explained the theory behind the suit on Twitter.
Sherrill v. Knight (D.C. Cir 1977): “White House press facilities having been made publicly available . . ., the protection afforded news-gathering under the first amendment . . . requires that this access not be denied arbitrarily or for less than compelling reasons.” https://t.co/nuMmTXaTbT
— Ted Boutrous (@BoutrousTed) November 8, 2018
Whether CNN succeeds in their lawsuit relies heavily on the “compelling reasons” argument. CNN will likely argue that the White House’s stated rationale for revoking Acosta’s press pass — that he assaulted a White House aide — is a cover for viewpoint discrimination, and that the White House’s rules for issuing and maintaining permanent press passes are vague.
The White House Correspondents Association, which certifies the White House Press Corps and maintains a working relationship with the White House press office, issued a statement in support of the lawsuit.
“We continue to urge the Administration to reverse course and fully reinstate CNN’s correspondent,” they said. “The President of the United States should not be in the business of arbitrarily picking the men and women who cover him.”