CNN Sues Trump For Barring Jim Acosta

Ken AshfordConstitution, Fake News, Trump & AdministrationLeave a Comment

This is a fight that Trump probably wants, since the “Fake News” — in particular, CNN — is a punching bag he likes to use.

CNN has filed 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 was filed in U.S. District Court in Washington, D.C. on Tuesday morning.

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, the director of the Secret Service, 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 six defendants are all named because of their roles in enforcing and announcing Acosta’s suspension.

Is it a decent lawsuit?  Yes.  The main case that bears on this is Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977), which reasoned as follows:

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.

So does the Trump Administration have a “compelling governmental interest” — not related to viewpoint — that would warrant the revocation of Acosta’s press pass?

Not even a little. There was one incident — a very questionable one — where Acosta refused to hand the mic over to a White House aide who was trying to take it from him. Not very disruptive. Not part of a pattern. And the fact that everybody is micro-examining YouTube footage of it and arguing about frames-per-second only adds weight to the argument that Acosta’s supposed “infraction” was, at BEST, de minimis.

Even if the White House could be justified in their decision — and they would look silly and petty in trying — they don’t seem to have complied with the necessary procedure spelled out by the Sherrillcourt:

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.

There seems little doubt that CNN will prevail, but like I said, Trump wants the fight, even if he loses. Which he is sure to do.

Here’s the complaint: