Perhaps it’s not surprising that, after two years of unrelenting hostility from Donald Trump and the White House towards the media, it would come to this: a lawsuit filed on Tuesday in federal court by CNN, against the president and several members of his administration—including Press Secretary Sarah Sanders and Chief of Staff John Kelly—for taking away CNN correspondent Jim Acosta’s press pass on November 7. The lawsuit says removing the pass was a breach of the First Amendment rights of both the network and its reporter, and also that it breached CNN and Acosta’s Fifth Amendment rights to due process, since they were not notified of the ban and were unable to appeal it.
CNN has asked the judge to issue a restraining order, which would require the White House to either reinstate Acosta’s pass fully, or give it back to him until a hearing can be held into whether the removal was justified. The network also says in the lawsuit that it tried to resolve the dispute with Kelly privately, but after getting no response felt compelled to file the suit.
As unsurprising as it might be in the current era, the lawsuit is almost unprecedented in the history of the relationship between presidents and the press, according to Jonathan Peters, CJR’s press freedom correspondent and media law professor at the University of Georgia. There have only been two such cases in modern memory, and the last one—which also involved CNN—was heard in 1981. At that time, the cable news network was new on the scene, and sued the White House and then-president Ronald Reagan, alleging that the company’s First Amendment rights had been infringed because CNN was not given access to press pool events. The White House responded by excluding all the TV networks, who then sued. The court ultimately agreed they had a First Amendment right to access press events.
According to Peters and other First Amendment experts, however, the most relevant case originated more than a decade before the CNN lawsuit, in 1966, when Robert Sherrill—a muckraking investigative reporter for The Nation—was denied a White House press pass. Sherrill and the American Civil Liberties Union sued in 1972, and five years later the DC Court of Appeals ruled that he had a First Amendment right of access to White House press conferences. The decision stated the conferences were designed to be open to all bona fide Washington journalists, and that this required the White House to ensure that “this access not be denied arbitrarily or for less than compelling reasons.”
In addition, as veteran First Amendment lawyer Floyd Abrams told CNN, case law in the US has established that before a press pass is revoked or denied, “you have to have notice, you have to have a chance to respond, and you have to have a written opinion by the White House as to what it’s doing and why, so the courts can examine it.” None of those things occurred in this case, which is why the CNN lawsuit argues withdrawing Acosta’s pass is a breach of the Fifth Amendment. A third claim involving the Secret Service is based on the principle laid out in the federal Code of Regulations, which states that in denying a press pass, the Secret Service “will be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or the family of the President.”
The White House responded to the lawsuit with a statement calling it “just more grandstanding from CNN,” and saying the Trump administration would vigorously defend itself. Press Secretary Sanders said in the statement that CNN has almost 50 other reporters who have hard press passes, and Acosta “is no more or less special than any other media outlet or reporter with respect to the First Amendment.” Sanders also referred to the recent press conference in which Acosta refused to surrender the microphone to a White House intern, saying “the First Amendment is not served when a single reporter… attempts to monopolize the floor.”
Here’s more on the CNN suit and its aftermath:
- Conduct appropriate: In a declaration included with the CNN lawsuit, veteran White House correspondent Sam Donaldson said that Acosta’s conduct at the press conference where he refused to give up the microphone was “appropriate and within the norms of professional conduct.”
- Fox says CNN will win: Judge Andrew Napolitano, a Fox News legal analyst, said he expects the lawsuit to be resolved in CNN’s favor. “The only grounds for revoking a press pass are, is the person a danger to the physical security of the president or his family?,” he said. “Acosta may have been an irritant, but he was hardly a danger.”
- From the WHCA: The White House Correspondents Association put out a statement saying it supports the lawsuit and that “the President of the United States should not be in the business of arbitrarily picking the men and women who cover him.”
- Un-American: The American Civil Liberties Union said “It is un-American and unlawful for the president to expel a reporter from the White House briefing room for doing his job. It shouldn’t take a lawsuit to remind the president of the First Amendment.”
Other notable stories:
- News from my colleague Andrew McCormick: Manuel Duran, a Memphis-based journalist who was arrested by Memphis police in April and turned over to Immigrations and Customs Enforcement officials in the wake of reporting that criticized both entities, might face imminent deportation to his home country of El Salvador. Tuesday, on a conference call with journalists hosted by the Southern Poverty Law Center, Duran’s lawyers said the Board of Immigration Appeals denied Duran’s appeal of an immigration judge’s decision earlier this year. His lawyers are now seeking review of the board’s decision at the Eleventh Circuit Court of Appeals in Atlanta, with ultimate hopes of presenting an asylum case for Duran, who fled El Salvador in 2006 amid threats against him due to his reporting. Duran, who also spoke on the call, believes he was expressly targeted by US officials as a result of his work, which he framed as part of a larger effort by the government to silence dissent against the administration’s immigration policies.
- In a Twitter thread, Toronto Star reporter Daniel Dale criticized mainstream media outlets for the way they write headlines and tweets about Trump, saying they “blast out his lies to millions of people without pointing out they’re not true.”
- Andrew McCormick writes for CJR about how many media outlets have improperly drawn a direct line from former Marine Ian Long’s military service and post-traumatic stress disorder to his decision to shoot and kill 12 people at a country bar.
- De Correspondent, a reader-supported news site based in the Netherlands, launched a “pay what you want” crowdfunding campaign on Wednesday that it hopes will raise at least $2.5 million to create an English-language version of the site.
- Washington Post media columnist Margaret Sullivan writes that the media’s eagerness to discount the so-called “blue wave” phenomenon (a move towards the left that many hoped to see in the midterm elections) feeds into a dangerous problem.
- Axios reports that Yahoo, now part of the media arm of Verizon along with Huff Post, is launching a subscription service for its financial portal Yahoo Finance, which the company hopes will compete with Bloomberg’s financial information business.
- Noah Shachtman, the new editor-in-chief of The Daily Beast, says on the Recode podcast that he sees the site as a successor to Gawker Media, because it likes to “take a side and throw a punch and call bullshit on the things that need to be called bullshit on.”