Is the removal of Jim Acosta's White House press pass a violation of the 1st Amendment?

Question

Jim Acosta of CNN asked President Trump a question. Trump ordered him to put the mike down, and a young intern tried to take it off him. Acosta's press pass was subsequently revoked.

Let's assume the for the sake of argument that the White House justification (he "laid hands" on the intern) is false and Acosta's pass was revoked because he insisted on asking a question that the President didn't want asked. As I understand it, in a lawsuit those would be questions of fact to be determined by the court. I'm asking about the law.

This question looks at a closely related incident when Trump barred selected media outlets from presidential press conferences. The consensus in that case was the White House has wide discretion in deciding who to admit to press briefings, and hence allowing one newspaper rather than another is not a violation. However a comment to that answer noted that:

viewpoint-based restrictions on privileges extended by the government are not permissible [...]

Does banning a reporter in response to an unwelcome question constitute a "viewpoint-based restriction"? If so, is this a violation of the 1st Amendment?

Answer 1

Yes.

Operating under those assumptions, this would be a First Amendment violation under controlling law in D.C.

The starting point is Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977), which held that "denial of a pass potentially infringes upon first amendment guarantees." In that case, the Nixon White House refused to issue a press pass to a reporter for a liberal magazine, but refused to explain why beyond citing "reasons of security." The D.C. Circuit said that if the White House intended to open itself to the press, it needed to do so in ways that did not offend the First Amendment.

White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons. Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information.

Given these important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists, such refusal must be based on a compelling governmental interest. Clearly, protection of the President is a compelling, “even an overwhelming,” interest... However, this standard for denial of a press pass has never been formally articulated or published. Merely informing individual rejected applicants that rejection was for “reasons of security” does not inform the public or other potential applicants of the basis for exclusion of journalists from White House press facilities. Moreover, we think that the phrase “reasons of security” is unnecessarily vague and subject to ambiguous interpretation.

Therefore, we are of the opinion that appellants must publish or otherwise make publicly known the actual standard employed in determining whether an otherwise eligible journalist will obtain a White House press pass.

Sherrill v. Knight, 569 F.2d 124, 129–30 (D.C. Cir. 1977).

In a nutshell, Sherrill is saying that when the government is granting press credentials to some and denying them to others, First Amendment principles require it to meet basic due-process requirements of notice and an opportunity to be heard. Therefore, those denied with an explanation for the denial and an opportunity to contest that denial.

In this case, it's not clear whether the White House has provided Acosta with a hearing and notice at all, which would itself be a violation if that situation continues for too long. But even if it does, the White House could not use the procedure to punish Acosta for exercising the First Amendment principles that the procedure is designed to protect.

If the opposite were true, i.e., Acosta "laid hands" on the intern, I'd guess that that would be enough to revoke his credentials, assuming the White House went through the appropriate procedure. Sherrill explicitly recognizes protecting the President and his family as a valid basis for denying access, and I assume the courts would extend that protection to White House staff, especially if the White House were to argue that an assault on staff suggests that the person can't be trusted around the president himself.

Answer 2

So, discounting the nature of the interaction between Acosta and the Intern (sounds like a really bad fairy tale) it should be noted that the event in question was not in the James S. Brady Press Briefing Room. This is significant because the Briefing room has an overhead boom mike so that the entire gaggle of reporters can be heard asking the questions. This is why the round robin of the microphone was used on the day in question. It is my understanding that the rules discussed before the briefing was that the reporters would be allowed one question and returning the microphone to the intern(s) who would then hand it to the president's next questioning reporter. Depending on the count, Acosta asked 3-4 questions rather than the one.

Had this been another reporter, this could be a minor offense, but Acosta is known for his particular style of questioning, which other members of the press pool have noted are not best practices and would be considered grandstanding and unprofessional (Notably the Washington Post published an article to the effect back in 2017). Coupled with the conclusion that Acosta's News Agency, CNN, has not been banned and most large news agencies like CNN would have multiple accredited reporters to work in the briefing room and press rooms (Acosta takes vacation and sick days after all... CNN is not going to get scooped while Acosta is at Disney World for a week). Since this is a known behavior issue of Acosta, it could be reasonable that the White House was not engaging in view point discrimination, to say nothing of the fact that the Majority of White House correspondents do not agree with the President.

Now, that assumes the physical contact with the Intern did not occur. To argue the counter, if it had occurred, it would seriously undermine the decision of CNN to sue the White House, as almost any business or place of work would be well within their rights to remove a reporter who was in contact with staff in such a manner. At the end of this thing, it has to be determined the authenticity of the tapes provided by the camera crews as well as consider the past behavior. It could be that the White House was not wrong to err on the side of caution while the case was in review, but the that the merits no longer exist.