First Amendment

CNN files First Amendment suit against Trump for revocation of reporter Jim Acosta's press pass

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CNN chief White House correspondent Jim Acosta. Photo courtesy of Gage Skidmore/Wikimedia Commons.

Updated: CNN and its chief White House correspondent, Jim Acosta, have sued President Donald Trump for revoking the reporter’s White House press pass after a staffer tried, without success, to take away Acosta’s microphone.

The suit, filed in federal court in Washington, D.C., alleges violations of a First Amendment right of access and a Fifth Amendment right to due process. The suit also claims the administration violated the Administrative Procedure Act by acting arbitrarily and capriciously. CNN’s statement and additional lawsuit documents are here. CNN, the Washington Post and Politico have coverage.

Other defendants in the suit include White House press secretary Sarah Huckabee Sanders and Chief of Staff John Kelly. CNN and Acosta are represented by Theodore Olson, Theodore Boutrous, two prominent lawyers from Gibson, Dunn & Crutcher.

The suit seeks restoration of the press pass and a declaration that the revocation was unconstitutional.

“There can be no question that the revocation of Acosta’s credentials is a content- and viewpoint-based punishment imposed on him because the president and his administration do not like CNN or Acosta’s reporting,” CNN’s lawyers say in a memorandum of points and authorities.

The memorandum cites a 1977 decision by the U.S. Court of Appeals for the D.C. Circuit, Sherrill v. Knight, in favor of journalist Robert Sherrill of the Nation magazine, who was denied White House access in 1966. The decision said the White House had voluntarily established press facilities for correspondents. “The protection afforded newsgathering under the First Amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons,” the court said.

Sanders said in a tweet last Wednesday that Acosta’s credentials were revoked for “placing his hands” on a woman who tried to take away a microphone from him during a White House press conference. Sanders posted a video of the event, which press reports said was a video that was doctored and posted by an Infowars contributor. CNN later posted its video of the interaction.

CNN says in the suit that Acosta was only trying to hold on to the microphone as the White House staffer tried to grab it. The suit says Trump called Acosta “a rude, terrible person” after the woman gave up and sat down. Later, Trump said, “When you report fake news, which CNN does, a lot, you are the enemy of the people.”

The suit says the punishment is “the culmination of years of hostility by President Trump against CNN and Acosta based on the contents of their reporting.” Previous tweets by Trump that criticized CNN are quoted, along with a statement by Trump at a July 13 press conference in England. “CNN is fake news; I don’t take questions from CNN,” Trump said.

Acosta also was banned from covering Trump on the president’s trip to Paris on Nov. 9, even though the French government had granted credentials to the journalist. At a press conference on that date, another reporter asked Trump about Acosta’s press pass.

Trump said he thought Acosta “was not nice to that young woman,” but, “I don’t hold him for that because it wasn’t overly, you know, horrible.” A reporter asked Trump how long Acosta would be in the penalty box, and the president replied, “As far as I’m concerned, I haven’t made that decision. But it could be others also.”

ABA Legal Fact Check takes a look at the case law concerning press credentials, according to an ABA press release. The Secret Service periodically denied media credentials for niche or alternative media a half century ago, leading to a series of lower court decisions for reporters in the 1970s, according to Legal Fact Check. The decisions cited First and Fifth Amendment grounds that are similar to the arguments cited by CNN.

Although the D.C. Circuit ruled the government needed to develop standards for the denial of press passes in the Sherrill case, the panel added a sentence that could be relevant in the CNN suit, according to Legal Fact Check. “We have no occasion to consider what procedures must be employed in the revocation, for security reasons, of an already-issued White House press pass,” the opinion said.

On Friday, Nov. 16, Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia granted CNN a temporary restraining order to prevent the White House from barring Acosta from the press room while the case is being heard. Kelly, who was appointed by Trump to the bench in 2017, made his ruling on Fifth Amendment grounds, saying that Acosta had not been granted due process and would suffer irreparable harm. The Washington Post, NBC News and CNN have stories. According to an NBC News tweet, Kelly called the White House’s allegation that Acosta had laid hands on an intern “likely untrue.”

Updated at 4 p.m. to include information on ABA Legal Fact Check. Updated on November 16 to report the preliminary injunction decision by Judge Kelly.

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