CNN and Jim Acosta lawsuit is about free speech, free press and due process

November 13, 2018

CNN's lawsuit against President Donald Trump, White House press secretary Sarah Sanders, Chief of Staff John Kelly and other officials focuses on two main issues: the right to free speech and free press, and the right to due process.  

In filings Tuesday, CNN says the White House revoked correspondent Jim Acosta's "hard pass" press credentials to the White House based on his reporting. Trump frequently calls CNN "fake news" and has said CNN journalists are “just dishonest, terrible people.”

Two iconic Supreme Court cases will come into play here, but it's a lesser-known lower court decision that could most help CNN's cause.  

The CNN lawsuit relies on cornerstone U.S. Supreme Court decision N.Y. Times v. Sullivan (1964), which promotes the widest protection to political speech, calling it a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The suit also cites Hustler Magazine, Inc. v. Falwell (1988), which protected  “the sort of robust political debate encouraged by the First Amendment” — debate that is “bound to produce speech that is critical of those who hold public office.”

But a third citation may be as important as the others. The CNN lawsuit refers to D.C. Circuit Court case Sherrill v. Knight (1977).  It directly speaks to a case where a journalist was denied White House press credentials without due process.

Robert Sherrill had been the Washington correspondent for The Nation for more than a decade and held press passes to both houses of Congress. But when he applied for White House credentials the Secret Service denied him, refusing to specify why.

Eventually, lawsuits revealed that the Secret Service had concerns over two assault cases involving Sherrill, including one where Sherrill assaulted the press secretary for the State of Florida. The press secretary called Sherrill "mentally unbalanced." 

While the 1977 Sherrill case and the Acosta case are different, in that Sherrill never had a "hard pass" and the Acosta case was preceded by months of personal attacks by the president, the U.S. Court of Appeals gave CNN and Jim Acosta — via the Sherrill case — a foothold to recapture his press credentials.

The Court said, "These important First Amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists … must be based on a compelling governmental interest."

The Court added, "This First Amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the Fifth Amendment." In other words, at a minimum, the White House should afford Acosta "due process" before yanking his press credentials. It is worth noting that the Court did not order Sherrill's credentials to be granted, only that the Secret Service establish "narrow and specific standards" for press pass denials.

The code of federal regulations that now guides the White House press pass process states that "In granting or denying a request for a security clearance made in response to an application for a White House press pass, officials of 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 so serious as to justify his or her exclusion from White House press privileges."

The White House never claimed Acosta was a security threat.  

The confusion of justifications

In the last week, the White House has offered a number of reasons why it pulled Jim Acosta's credentials. None of those reasons had to do with the safety of the president.  

On Nov. 7,  the day the White House pulled Acosta's "hard pass" press secretary Sarah Sanders said, “President Trump believes in a free press and expects and welcomes tough questions of him and his administration.

"We will, however, never tolerate a reporter placing his hands on a young woman just trying to do her job as a White House intern. This conduct is absolutely unacceptable." 

On Nov. 9, Trump seemed to indicate he was not concerned with whether Acosta had been too physical when an intern attempted to take the microphone away: "And he was not nice to that young woman. I don’t hold him for that because it wasn’t overly, you know, horrible."

About an hour after CNN filed its lawsuit Tuesday, the White House Press Office responded with another reason for pulling Acosta's credentials — that he got in the way of other reporters who wanted to ask questions:

CNN, who has nearly 50 additional hard pass holders, and Mr. Acosta is (sic) no more or less special than any other media outlet or reporter with respect to the First Amendment. After Mr. Acosta asked the President two questions—each of which the President answered—he physically refused to surrender a White House microphone to an intern, so that other reporters might ask their questions. This was not the first time this reporter has inappropriately refused to yield to other reporters.

 

The White House cannot run an orderly and fair press conference when a reporter acts this way, which is neither appropriate nor professional. 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.”

In the legal filings Tuesday, Acosta said:

"A White House intern approached me and attempted to physically remove the microphone from my right hand. The C-Span video accurately depicts what happened. As it shows, I held on to the microphone, stated 'Pardon me ma'am' and continued asking the President my questions. As eyewitnesses have noted and the video clearly demonstrates, the White House's contention that I 'placed my hands on the intern' is false. In my time as a White House correspondent, I have not seen or experienced a White House intern trying to physically remove a microphone from a reporter's hand. I interpreted the intern's unprecedented actions as an expression of the President's dissatisfaction with the topics of my questions."

Acosta's legal brief said he believes the White House's actions are meant as a signal, a warning to other journalists. "I believe this was done to send a message to other White House correspondents that asking tough questions and filing critical reports of the administration will be punished. The President appeared to confirm this motive when he warned November 9th, 2018 that he might revoke the press credentials of other reporters too."

 

"While the suit is specific to CNN and Acosta, this could have happened to anyone," the CNN suit said. "If left unchallenged, the actions of the White House would create a dangerous chilling effect for any journalist who covers our elected officials."

It is rare but not unprecedented for news organizations to sue the President. The so-called Pentagon Papers case (1971) involved the government attempting to prevent the publication of a classified Defense Department study regarding the history of the United States' activities in Vietnam. In 1981, CNN sued President Ronald Reagan and other TV networks to gain access to the press pool. 

Just last month, a number of writers and journalists sued the President for threatening journalists who are critical of the Trump administration. 

CNN Worldwide president Jeff Zucker issued a staff memo, saying, "This is not a step we have taken lightly. But the White House action is unprecedented." 

And Sherrill? While he was banned from the White House, Sherrill continued covering the Carter and Reagan administrations. After an 11-year battle, he was finally cleared to get a White House press pass — and never applied for one.  He told the LA Times, “I didn’t want to be in the White House. I had been in Washington long enough to realize that was the last place to waste your time sitting around for some dumb (expletive) to give a press conference.”

Read the court filings:

1. Complaint

2. Memorandum of points and authorities in support of Plaintiff's motions for a temporary restraining order and preliminary injunction.

3. Declaration of Theodore J. Boutrous, Jr. in support of plaintiff's motion for a temporary restraining order and preliminary injunction

4. Declaration of Jim Acosta in support of Plaintiff's motion for a temporary restraining order and preliminary injunction

5. Declaration of Sam Feist in support of plaintiff's motion for a temporary restraining order and preliminary injunction

6. Declaration of Sam Donaldson in support of plaintiff's motion for a temporary restraining order and preliminary injunction

7. Declaration of Todd Joseph Gillman in support of plaintiff's motion for a temporary restraining order and preliminary injunction