Cites violations of Constitutional First and Fifth Amendment rights
UPDATED: Court temporarily reinstates Acosta press pass citing 'due process' rights...
By Ernest A. Canning on 11/14/2018, 10:05am PT  

On Tuesday, CNN, along with its Chief White House Correspondent, Jim Acosta, filed a federal complaint alleging President Donald J. Trump and high level White House personnel, including Press Secretary Sarah Huckabee Sanders and the U.S. Secret Service, violated their First Amendment free press rights to access White House press facilities.

They also allege the Trump administration violated their Fifth Amendment rights to due process when, without notice or a compelling reason for doing so, the White House rescinded Acosta's press credentials and seized his "hard pass" following a contentious November 7 Presidential press conference.

The complaint goes on to charge that the news organization's First Amendment rights were violated a second time on November 9, when Acosta traveled to France to cover the President's visit and to interview French President Emmanuel Macron during the centenary events commemorating the end of World War I. "The Secret Service refused to allow Acosta to attend an allegedly 'open' press event whose attendees included journalists from around the world," according to the CNN complaint. They did so even though "the French government issued credentials to Acosta." (Ironically, as they also note, Trump did not attend the event "due to inclement weather.")

Citing both facts and case law, the CNN complaint sets forth the argument that the President's actions against both Acosta and the news outlet amounted to an unlawful "attempt to censor the press and exclude reporters from the White House who challenge or dispute the President's point of view". However, that compelling argument, which is now supported by the White House Correspondents' Association, the ACLU and even by Fox "News", may not carry the day at the District Court level given that the case has been assigned to Judge Timothy J. Kelly, a Trump appointee...

Press right to White House access

In Sherrill v. Knight (1977), the DC Circuit Court of Appeal held that "access [to White House press facilities] may not be denied arbitrarily or for less than compelling reasons". The appellate court further ruled that, prior to revoking White House press credentials, the press must be afforded the "opportunity to rebut" the ostensible White House reason for the revocation.

That right of access cannot be denied simply because the President is disturbed by hard-hitting questions. To the contrary, as observed by the CNN complaint, citing two Supreme Court cases, New York Times v. Sullivan (1964) and Hustler Magazine, Inc. v. Falwell (1988):

The Framers of our Constitution embraced "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 unpleasant sharp attacks on government and government officials" ... The President lacks the authority to quash "the sort of robust political debate encouraged by the First Amendment ... that is critical of those who hold public office."

Pretext vs. real reason

As CNN argues in both the complaint and a Nov. 13 article, White House Press Secretary Sarah Huckabee Sanders has essentially abandoned her initial claim that Acosta's credentials and hard pass were revoked because he had "placed his hands" on a staffer when she tried to seize a microphone out of his hand --- a point she sought to support by posting an InfoWars-doctored video on Twitter. That rationale, according to CNN's article, was "widely mocked and dismissed by journalists across the political spectrum." Now, the official White House position is that Acosta "physically refused to surrender the White House microphone to an intern."

(The pertinent video (see below) reveals that Acosta, who did not place his hands on the intern, asked the President one additional question, before handing the microphone over to the intern.)

CNN argues that the real reason why the White House seized his hard pass and rescinded his credentials is that Trump simply did not like being cornered by Acosta about his specious claim that a caravan of unarmed Central American asylum seekers, (unarmed parents and children still hundreds of miles away), could appropriately be described as an "invasion".

The complaint cites numerous instances in which the President has demeaned multiple media outlets as "Fake News" and "enemies of the people", and includes an admission made by Trump when interviewed by Leslie Stahl of 60 Minutes, concerning his true purpose for attacking the media and demeaning reporters:

You know why I do it? I do it to discredit you all and demean you all so when you write negative stories about me, no one will believe you.

Judge Kelly, on an expedited schedule, gave the defendants until 11:00 a.m. Wednesday to file their responses. He has scheduled a hearing for 3:30 p.m. Stay tuned...

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UPDATE 11/16/18: Based solely upon what he determined to be a denial of 5th Amendment due process rights, Judge Kelly issued a temporary restraining order which directed the White House to temporarily reinstate Acosta's press credentials pending a later ruling on CNN's and Acosta's First Amendment claims, according to Politico's Jason Schwartz.

Schwartz reported that Kelly was troubled by the White House's "shifting rationale" for its decision and that Kelly regarded the 1977 DC Circuit Court of Appeal decision in Sherrill to be a controlling precedent. In Sherrill, the appellate court held that the White House may not deny press access "arbitrarily or for less than compelling reasons".

In confirming that the White House would immediately reinstate Acosta's "hard-pass", Press Secretary Sarah Huckabee Sanders stated:

We will also further develop rules and processes to ensure fair and orderly press conferences in the future. There must be decorum at the White House.

One suspects that whatever rules for decorum the White House comes up with, they will not prevent the President from rudely interrupting and/or berating reporters whenever they ask a question that he would prefer not to answer.

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Video containing pertinent moments of the Nov. 7 White House press conference follows...:

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Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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