Jim Acosta was asked by the Secret Service to surrender a White House hard pass as the result of an altercation in a press event. The White House press secretary explained that it being suspended until further notice and gave a preliminary indication that the reason for this was related to Mr. Acosta's behavior while at the White House.
The lawsuit filed by CNN and Acosta is reported to be on 1st and 5th amendment grounds, and they are seeking a temporary restraining order to force the White House to restore the hard pass it suspended. 1st amendment issues seem obvious, but reference to the 5th amendment seem less so. I'm guessing that the due process clause of the 5th amendment is involved, the key provision of which consists of:
No person shall ... be deprived of life, liberty, or property, without due process of law...
It doesn't seem like Acosta has been deprived of life or property. The concept that a hard pass involves 1st amendment liberties is supported, but it's up to a court to determine what due process is required for suspending an existing press pass. I'm not sure I see how a temporary restraining order to restore his access immediately is critical.
Q: Does suspension of a privilege few people get justify a temporary restraining order on 5th amendment grounds?
The Sherrill v Knight case some sources compare as precedent seems relevant, but it's important to recognize that Sherrill was never grated the relief he requested of restoring his press pass. In discovery, it came out that one reason for Sherrill's denial of a press pass was that that Sherrill had been arrested and fined for physical assault. Acosta aggressive behavior was demonstrated in front of the President, the Secret Service and members of the White House press corps.
In the above case, footnote 23 said:
We have no occasion to consider what procedures must be employed in the revocation, for security reasons, of an already-issued White House press pass.
As such it seems that while Sherrill is reasonable basis for asserting there is a 1st Amendment Interest involved, it is not clear to me it forms a strong reason to believe the outcome will be to restore his hard pass clearance.
In DC its well known that you don't need a hard pass to cover the White House. Saying you are making a YouTube videos is apparently enough to get persistent people into briefings repeatedly, but don't expect to sit down or get called on to ask a question. There are three ways to get in:
- the much coveted hard pass, with no explicit expiration date,
- a renewable two-year permit,
- or a Day Pass which must be applied for each time you want to get in.
Nothing so far says that Acosta has been denied admittance, but what it probably does mean he no longer has line-jumping privilege and probably won't get a front row seat to heckle from. The first amendment doesn't seem to guarantee anyone a front-row ticket, or even that they get recognized at a press conference, and the relevant freedoms to speak and publish are still subject to reasonable restrictions, e.g. disturbing the peace.