I have previously criticized the White House for suspending the access of CNN Chief White House Correspondent Jim Acosta. While I believe that Acosta was wrong in refusing to yield the mike at a former press conference, the White House should restore his access. That, however, does not mean that the suspension would be viewed as an actionable legal case. CNN is reportedly considering such a lawsuit and Floyd Abrams, a constitutional law expert, is quoted as saying that CNN would have a “really strong lawsuit” against the White House. I am not so confident despite my agreement with CNN on the merits of the action. My concern is how a court would craft the standard for such review in having a right to a press pass. Moreover, whatever due process claim can be raised, the burden is likely to be modest.
CNN itself has not been barred from the press conference or the White House. A court would have to rule that the White House cannot suspend individuals for conduct deemed inappropriate. Since the network itself is not barred, the lawsuit will face a greater challenge under the First Amendment.
CNN can argue that the action is based on the content of Acosta’s questions and not his conduct. However, there was a refusal to allow another reporter ask a question and a refusal to surrender the mike. There was also a continued effort to speak over the President. While that is not unheard-of conduct, the question is whether a court would invite the opportunity to referee such internal decisions of access for individuals.
Presumably, the White House can remove or suspend individuals over disruptive conduct. Here the White House is citing conduct. The court could look into whether the rationale is clearly erroneous but few judges would view Article III as giving them a license to delve into levels of unacceptable conduct. Most judges would certainly be interesting in any retaliation based on the content of journalistic questions. That however may be hard to establish here since Acosta has previously asked such questions and many other reporters continue to ask the same probative questions.
I am reluctant to disagree with Floyd but I would be less confident in such a challenge.
What do you think?