A couple of days ago, we discussed the prospect of CNN suing the Trump Administration over the suspension of CNN’s Jim Acosta’s press credentials after a flair up in a former press conference with President Donald Trump and the refusal of Acosta to surrender the microphone. CNN has now filed its lawsuit and it is basically the claims that we anticipated with one addition: a claim that the move violated the Administrative Procedure Act. As I have said from the outset, I strongly oppose the move by the White House, even though I feel that Acosta went too far in the press conference. However, I still remain a bit more cautious than many commentators on what is being described as a slam dunk of a case.
The First Amendment claim cannot be based on some constitutional right to access. There is no right of access to the White House for the public, as established by the D.C. Circuit in Sherrill v. H. Knight (1977). Moreover, the court reaffirmed that the press does not have a guarantee of access but only that the denial of access cannot be denied “arbitrarily or for less than compelling reasons.” This comes down to whether Acosta’s conduct offered a compelled reason for his suspension when he refused to yield the mike and continued to speak over the President. As I mentioned earlier, the court may have to compare his conduct with past behavior of other journalists. However, the White House is not barring CNN and did not toss others asking the same questions.
The Fifth Amendment claim also only takes you so far. Whatever due process is owed Acosta will be relatively slight on an issue of access. The White House is not saying that he is permanently barred and it makes decisions all the time on access for representatives of different media outfits.
The APA claim may suffer from the same problem. Whatever APA protection that Acosta has in this circumstances would be modest. It will also return the question to the merits. Was it “arbitrary and capricious” to suspend access when a reporters would not yield the floor and continued to speak over the President at a formal press conference? If so, it would be difficult to maintain decorum in such settings. More importantly, what would the APA afford CNN in this circumstance in terms of procedural protections. There might be a notice requirement and written explanation obligation. However, this is still a procedural device.
None of this means that Judge Timothy J. Kelly will not rule for Acosta and CNN. However, it is not the easy case that many have described in my view and could well be a bad case that makes bad law for the media if they lose.