CNN Lawsuit Isn't Just About Jim Acosta's White House Badge

Jim Acosta Donald Trump Nov 7 - H - 2018

CNN's Jim Acosta may or may not regain regular access to the White House as a result of the lawsuit filed Tuesday. But if President Donald Trump chooses to stand firm on the position that the White House has the right to deny Acosta a "hard pass" to regularly attend briefings, his administration better be prepared for a new ball game of transparency in its relationship with the press.

The complaint filed in D.C. Circuit Court by a legal team led by Ted Boutrous at Gibson Dunn characterizes what happened last Wednesday as an unconstitutional violation of the First Amendment. On that day, Acosta asked a question that Trump didn't appreciate. Acosta wanted to follow up — and then follow up again — and refused to hand over the microphone. Trump got agitated. A staffer was unsuccessful in an attempt to wrest the microphone from Acosta's hands.

Trump, John Kelly, William Shine, Sarah Huckabee Sanders and the U.S. Secret Service, according to the suit, "revoked Acosta’s White House credentials because, in the President’s own words, Acosta failed to 'treat the White House with respect' at a White House press briefing. This severe and unprecedented punishment is the culmination of years of hostility by President Trump against CNN and Acosta based on the contents of their reporting — an unabashed attempt to censor the press and exclude reporters from the White House who challenge and dispute the President’s point of view."

Importantly, though, this new case isn't just about credentials, nor is it even merely about the First Amendment. CNN's lawsuit also alleges a violation of the Fifth Amendment and it's this cause of action that could provide Acosta's best chance of prevailing. Meanwhile, while hardly asking to be put in this position, CNN and Acosta have seemingly stumbled into a back door for exposing in greater detail how Trump's animus toward critics has impacted policy decisions.

More than four decades ago, another reporter sued after being denied White House press credentials, Robert Sherrill, a Washington correspondent for The Nation, had his application for a pass rejected, and his search for the reason why and objection to the denial culminated in a victory for him at the D.C. Court of Appeals.

That case, Sherrill v. Knight, provides some precedent for Acosta (it is directly cited by CNN in a bid for a restraining order and injunction), though it was certainly a different situation at a different time. Unlike Acosta, Sherrill wasn't able to articulate any viewpoint discrimination. In fact, Sherrill just didn't know why he was rejected beyond some vague notion it happened "for reasons of security." Later, after requesting material via a FOIA request, Sherrill got word that one factor may have been a prior arrest for physical assault in Florida. Nevertheless, the appellate court agreed there was a deprivation of "liberty" without due process under the Fifth Amendment as the rejection of his White House access "interfered with the free exercise of the profession of journalism."

The D.C. Appeals Court carefully noted that the president has discretion when it comes to interviews and briefings and further added that Sherrill's claim was not premised upon any assertion that the White House must open its doors to the press. But after the White House decides to establish press facilities for correspondents, First Amendment rights then become implicated when refusing to grant press passes, the appellate opinion stated, and "such refusal must be based on a compelling government interest."

Ultimately, Sherrill won because the appeals court looked unkindly upon the process for accepting and rejecting press applications at the White House. D.C. Circuit Judge Carl McGowan wrote that there should have been written notice spelling out reasons for the rejection plus an opportunity for Sherrill to respond and then a final statement.

Since then, there have been more fights over press access. In 1984, a New York court wrote that "press organizations have a limited right of access to newsworthy events in their capacity as representatives of the public," while a photographer prevailed just last year after the New York Police Department revoked press credentials without due process and in alleged retaliation for the content of the photographer's speech.

A lot more news outlets are around today than in the late 1970s. Sound reasons may truly exist for not handing out passes like candy on Halloween. And maybe Acosta's aggressive questioning amid other reporters wishing to have their turn deserves some sanction.

But did the White House articulate clear standards known to correspondents and then provide sound justification in revoking Acosta's pass? And was he afforded a fair opportunity to make his case? Or was the decision a rash one where the post hoc reasoning for rescindment amounted to some pretextual excuse to do to CNN what Trump would never do to Fox News?

Thanks to the president's repeated expressed displeasure with CNN and the so-called fake news media, Acosta can easily formulate a theory why the White House took adverse action and how this served no compelling government interest but to placate Trump's sensitivity toward criticism.

Accordingly, should the lawsuit proceed to discovery, CNN could find some rare opportunity.

Earlier this year, a judge denied a bid by CNN's parent company to probe Trump's influence on the Justice Department's decision to challenge the merger between AT&T and Time Warner. The White House is also largely exempted from the Freedom of Information Act.

Now, CNN can articulate a concrete injury and the need to explore Trump's taste for vengeance. In denying Acosta a press pass, the White House may have thought it was saving itself from intrusive questioning by a disrespectful reporter, but one way or another, Acosta's interrogation is hardly over.