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Court: White House Violated First Amendment In Yanking CNN Press Pass

U.S. District Judge Timothy Kelly in an oral ruling at 10 a.m. today ordered the White House to return CNN correspondent Jim Acosta's White House "hard pass" immediately.

The White House on November 7, 2018, revoked Acosta's hard pass—which provides reporters with access to the White House grounds and briefings—after a press conference where President Donald J. Trump cut off Acosta's questions, calling him "a rude, terrible person." A White House intern had tried to grab the microphone from Acosta, and the White House initially claimed—contrary to a video on CSPAN—that he had "plac[ed] his hands on a young woman."

CNN filed a lawsuit on the morning of November 13 asking the court for a temporary restraining order and that the White House return Acosta's pass. The court held a hearing the following afternoon, and issued its oral decision this morning.

Judge Kelly, a Trump appointee to the U.S. District Court for the District of Columbia, found that the White House had violated Acosta's due process rights under the Fifth Amendment to the U.S. Constitution by revoking his pass without providing appropriate notice and an opportunity to be heard before the revocation.

The judge completely rejected the White House's argument that a series of tweets and releases from President Trump and Press Secretary Sarah Sanders, and an interim protest letter from CNN, furnished adequate process for Acosta. The judge then applied the legal standards for granting a temporary restraining order and found:

  • It was "unavoidable to conclude" that Acosta had demonstrated a likelihood of success on the merits of his claim. This is because the White House has opened portions of its grounds for the press to use, triggering "some kind of First Amendment liberty interest" once a journalist receives a press pass. As a result, while the President has the right to control the conduct of a press conference, his authority is governed by due process. Here, Acosta was not provided adequate process before his hard pass was revoked. The judge found that the White House's "belated" explanations were insufficient, and he noted that its initial statement that Acosta had been physically inappropriate to the intern who tried to take the microphone from him is "of questionable accuracy" and is "likely untrue."

  • Acosta had demonstrated irreparable harm to his First Amendment liberty interest because, for every day he is banned from White House grounds, he loses opportunities for interviews and breaking news events. Judge Kelly rejected the government's argument that CNN has other pass-holders who have not been banned: "That CNN may send another journalist to the White House does not make the harm to Mr. Acosta any less irreparable."

  • Finally, the judge held that the balance of the equities and the public interest favor Acosta, because "constitutional violations are always contrary to the public interest."

The ruling is a resounding rebuke to the White House's claim of unbridled authority to eject journalists.

Ballard Spahr's Media and Entertainment Law Group represents a coalition of more than 50 news organizations participating in the litigation as amici curiae. 

Copyright © by Ballard Spahr LLPNational Law Review, Volume VIII, Number 320
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About this Author

Charles Tobin, Ballard Spahr Law Firm, Entertainment Media Litigation Attorney
Partner

Charles D. Tobin is a litigator, former journalist, and the Co-Practice Leader of Ballard Spahr's Media and Entertainment Law Group. He defends the media in libel and privacy lawsuits in state and federal trial and appellate courts throughout the country. He conducts prepublication content review and advises clients on subpoenas, access and privilege issues, Freedom of Information Act (FOIA) requests, copyright matters, and First Amendment rights.

Mr. Tobin also represents businesses in matters involving unfair competition, disparagement, and...

202-661-2218
Chad Bowman Lawyer Partner Ballard Spahr DC
Partner

Chad R. Bowman's practice as a counselor and litigator focuses on working with new and legacy media organizations, as well as other nonprofit and for-profit entities engaged in public advocacy and speech.

As a counselor, Chad regularly advises clients about publication risk, reviewing draft television news scripts, magazine features, newspaper reports, digital media stories, and other content, as well as advising about newsgathering and intellectual property issues. As a litigator, Chad has represented media clients in state and federal courts around the country in contested...

202-508-1120
Jay Ward Brown, Ballard Spahr Law Firm, Washington DC, Media and Litigation Law Attorney
Partner

Jay Ward Brown has been representing news and entertainment companies for more than two decades. He has litigated libel, privacy, copyright, subpoena, and access matters in the U.S. Supreme Court, federal and state appellate courts, and trial courts around the country.

Jay has been described in Chambers USA as “a lawyer who delivers continuously high-quality service,” possesses “impeccable analysis and impressive writing skills,” and has a “friendly, approachable and attentive demeanor [that] sees clients wanting to use him exclusively...

202-508- 1136
Maxwell Mishkin, Ballard Spahr Law Firm, Washington DC, Litigation and Media Law Attorney
Associate

Maxwell S. Mishkin counsels and litigates on behalf of news, entertainment, and other media clients in a wide range of matters.

While in law school, Max was a student director of Yale's Media Freedom and Information Access Clinic, in which he briefed First Amendment and Freedom of Information Act cases in federal district courts and the Foreign Intelligence Surveillance Court, and argued before the U.S. Court of Appeals for the Second Circuit. He also interned for the Electronic Frontier Foundation, where his work focused on intermediary...

202-508-1140
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