The Looming Legal Battle Over Jim Acosta's Press Pass

CNN says in a lawsuit that President Trump’s revocation of the correspondent’s White House credentials violated his First and Fifth Amendment rights.

Mandel Ngan / AFP / Getty

Unable to resolve matters behind closed doors, CNN and its chief White House correspondent, Jim Acosta, filed suit in D.C. district court on Tuesday to reinstate Acosta’s permanent credentials to cover the White House.

Acosta and CNN claim that the White House’s revocation of his press credentials after a heated presidential press conference Wednesday violates Acosta’s First Amendment right of freedom of the press and his Fifth Amendment right to due process. The plaintiffs also allege that the Trump administration violated the Administrative Procedure Act by acting “arbitrarily, capriciously, and otherwise not in accordance with law.”

The suit names a myriad of administration officials as defendants in the suit—President Donald Trump, White House Chief of Staff John Kelly, Deputy Chief of Staff Bill Shine, Press Secretary Sarah Sanders, the U.S. Secret Service, and Randolph Alles, the director of the Secret Service.

CNN has also requested an immediate restraining order and injunction, which would allow Acosta to get his credentials back without having to wait for the case to be resolved.

“The White House punished Mr. Acosta and CNN for the contents of their reporting,” Theodore J. Boutrous Jr., one of CNN and Acosta’s lawyers, said in a statement. “The law is clear that this violates the First Amendment and Due Process Clause of the Constitution. The arbitrary revocation of Mr. Acosta’s press credentials is causing irreparable injury each and every day because it is stopping him from reporting on news from the White House. That is why we are seeking emergency relief and asking that his credentials be restored immediately.”

The complaint cites two landmark Supreme Court cases—New York Times v. Sullivan and Hustler Magazine v. Falwell—before bringing into focus a key lower-court decision that stands as near-direct precedent for Acosta’s case: Sherrill v. Knight. The 1977 Sherrill case, as detailed in The Atlantic on Friday, calls for an explanation and opportunity for rebuttal if White House credentials are revoked. The CNN filing cites the following from Sherrill:

That is why the D.C. Circuit has been clear that “the protection afforded news gathering under the first amendment guarantee of freedom of the press requires that . . . access [to White House press facilities] not be denied arbitrarily or for less than compelling reasons.”... And “notice . . . of the factual bases for denial [of access to White House press facilities] with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is . . . [not] based on arbitrary or less than compelling reasons.”

The difference between Sherrill, a case brought on by The Nation’s Robert Sherrill after his press credentials were twice denied in 1966 and 1972 without explanation, and the Acosta case is slight, but important: Sherrill never had his credentials revoked; he was denied from the start.

Press advocates expressed optimism and said they thought CNN had a very strong case against the White House.

“I don’t think CNN’s lawsuit goes out on any limbs. The basic principle is well established,” Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University, said in an interview. “The D.C. circuit case was decided on 40 years ago, and all the case law since has reinforced the soundness of the Sherrill ruling, so I think the legal argument is very strong. The facts are always messier and maybe the administration will introduce new facts that complicate the case further, but based on the public record, CNN’s assertion that [the revocation is] viewpoint-based is very strong.”

Michele Kimball, a media-law professor at George Washington University, said that an explanation for revoking Acosta’s access is required—whether it’s from the White House proper or the Secret Service.

“What’s most important in all of this is a clarification by the administration about why the credentials were revoked,” Kimball said in an email. “Other journalists need to know what can get them pulled. The chilling effect on speech is especially intense when you have no idea what will trigger having your credentials taken.”

The Reporters Committee for Freedom of the Press (RCFP) filed an amicus brief Tuesday with support from Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection.

“Trump’s revocation of Acosta’s credentials is, simply put, out of line,” Bruce Brown, the executive director of RCFP, said on a conference call. “It’s decidedly out of step with the traditions of freedom of speech and of the press enshrined in our Constitution, at the heart of our democracy, and long respected by presidential administrations of both parties even in moments of great tension between the president and the press.”

White House Press Secretary Sarah Sanders released a statement that called the CNN lawsuit “more grandstanding” and said that the White House will “vigorously defend” against it. “The White House cannot run an orderly and fair press conference when a reporter acts this way, which is neither appropriate nor professional,” Sanders wrote. “The First Amendment is not served when a single reporter, of more than 150 present, attempts to monopolize the floor. If there is no check on this type of behavior it impedes the ability of the President, the White House staff, and members of the media to conduct business.”

The Trump White House pivoted from its earlier accusations that Acosta assaulted a White House intern when the intern tried to grab his microphone, a false claim further complicated by the fact that Sanders shared a doctored video from Infowars to support her claim on Twitter last week.

“The initial justification given, that Acosta made physical contact with the young intern, has been proven to be unjustified, as we have seen by watching the video countless times and through eyewitness reports from people who were seated right next to Acosta when the incident took place,” Frank Sesno, the director of George Washington University’s School of Media and Public Affairs, said in an email Tuesday. “The White House has to be held accountable to facts and to process. It’s time they learn to respect both.”

Joshua Geltzer, the executive director of Georgetown’s Institute for Constitutional Advocacy and Protection, acknowledged that there’s a legitimate argument in favor of decorum in White House press events, but said that this was not the issue at hand here.

“The [RCFP] brief recognizes that there is a certain prerogative on the part of the White House to ensure security and even, in some reasonable way, ensure decorum, in part to allow news gathering to occur, to allow questions to be asked and answered, to allow different voices to have that opportunity so that they can ask questions on behalf of ... their readers and viewers and followers,” Geltzer said on the conference call. “But one only needs to look at the video here to see that this was nothing wildly out of bounds, this was nothing out of character for the setting.”

Jaffer agreed that the issue of decorum is relevant, but falls short in this case given how the incident played out.

“If the White House came up with a viewpoint-neutral set of rules (for example, no reporter can go on for more than 3 minutes) … that kind of viewpoint-neutral rule would be easier to defend,” Jaffer said. “Given the context of this revocation, given that it’s obvious from the video that the president was provoked by Acosta’s questions, I think it’ll be difficult for the administration to maintain that the revocation was anything but viewpoint-based.”

“The arguments about respect and decorum are pretty rich coming from folks who turn the Oval Office over to the Kanye West Show,” Brown added.

CNN is seeking an immediate restraining order to reinstate Acosta’s credentials, a decision that could be decided in court this week. CNN claims to have done due diligence this weekend—the likely reason this suit did not come sooner. According to the lawsuit, the CNN chief executive Jeff Zucker wrote to White House Chief of Staff John Kelly requesting that Acosta’s credentials be reinstated. “Defendants have not reinstated Acosta’s press credentials or returned his hard pass and have informed CNN and Acosta they do not intend to do so,” the suit states.

Acosta applied for a temporary day pass on Friday, the complaint states. He was denied. He requested to cover the president’s trip to France this weekend. He was denied access, but traveled anyway. With both sides in their corners, prepared to fight, what happens next could be an important decision in the protection of reporters’ rights—or a ruling that could further chill Washington reporting.