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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.

Added Notes

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:

  1. the much coveted hard pass, with no explicit expiration date,
  2. a renewable two-year permit,
  3. 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.

  • "Does suspension of a privilege few people get justify a temporary restraining order on 5th amendment grounds?" Why would the number of people who enjoy a particular property right or liberty right matter? There are apparently 12 pandas in the US, so no more than 12 people or legal entities could possibly own a panda in the US. That fact would not justify depriving panda owners of their pandas without due process of law. – phoog Nov 15 '18 at 20:10
  • phoog: It seems like you are comparing the privileged few who have been invited into the White House with an owner of property, where real rights are involved. A better comparison might be with someone making a camping reservation at a national park. Those who get the reservations are reasonably limited to the number of campsites, and if the park ranger finds you unfairly impinging on others, throwing you out and giving your reservation to the next in line seems quite reasonable. – Burt_Harris Nov 16 '18 at 0:26
  • Quite honestly, @Burt_Harris, it feels like there's an answer you want to hear here. This isn't a forum for political argument, it's a forum for questions of law, so opinions especially, except as they pertain to interpretation of law as it will be applied, are irrelevant to the question. In other words, please for goodness' sakes stop fishing. – Stackstuck Nov 16 '18 at 13:25
  • looks like the court gave an answer. – Burt_Harris Nov 16 '18 at 17:49
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You are correct that the existence of a lawsuit -- on First Amendment or Fifth Amendment grounds -- is not a strong basis for believing that Acosta will have his pass reinstated. People file losing lawsuits all the time. But that doesn't really tell us anything about the merits of his case, which I discuss below.

Temporary restraining order: The standard for TROs is well-established:

This court may issue a temporary restraining order or a preliminary injunction only when the movant demonstrates that:

  1. there is a substantial likelihood plaintiff will succeed on the merits;
  2. plaintiff will be irreparably injured if an injunction is not granted;
  3. an injunction will not substantially injure the other party; and
  4. the public interest will be furthered by an injunction.

Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001).

I'd normally expect the court to be pretty speech-protective in a First Amendment TRO case, but because this is the White House, they'll probably give a fair amount of extra weight when figuring out how to balance everything here.

I would not, however, expect either of the factors that you mentioned -- that this is a Fifth Amendment case and that few people have press passes -- to do much to change the court's analysis. I suspect it's going to come down to who is more credible about what happened and why.

Fifth Amendment: The Constitution does not promise us much at all in terms of outcomes. What it does promise is that the government will go through reasonable procedures to arrive at those outcomes. As you seem to have identified, that's exactly what Sherrill was about.

Sherrill does not say that everyone has the First Amendment right to a White House press pass; it says that that everyone has the Fifth Amendment right to due process when the White House decides whether to grant or deny a press pass -- especially because of the First Amendment interests implicated in those decisions.

The basics ingredients of due process are notice and an opportunity to be heard by a neutral decision-maker, and that's all that Sherrill calls for: a publicly disclosed procedure by which the journalists can apply for credentials and appeal adverse decisions.

Here, it's unclear whether the White House has provided Acosta with any notice or any opportunity to appeal his decision. If that's the case, they've almost certainly run afoul of Sherrill. But again, you are correct that this does not mean he gets his press pass back. If they find that the White House violated the Fifth Amendment as explained in Sherrill, the remedy will simply be to force it to go through the prescribed procedure.

First Amendment: If it turns out that they use that procedure as a pretext to punish Acosta for protected speech, we would be out of Fifth Amendment territory and into First Amendment territory. If a court found that the White House had revoked his pass because he was from CNN, because they didn't like the questions he was asking, or because he didn't provide fawning coverage of the president, it is virtually certain that the White House would be forced to restore his credentials.

But if they determine in a fair way that Acosta should have his pass revoked because he was violent, because he was infringing on other people's ability to do their job, or because he was otherwise violating established rules, a court would probably say that any of those was an acceptable justification. In that case, CNN would need a new White House correspondent.

  • 1
    Thanks for the well-thought-out answer. 6/4/18: The White House Press Secretary's clearly warned Acosta he wasn't allowed a "follow-up question" after wasting his first question. Like with the later event, there was a whole roomful of press waiting their turn. youtube.com/watch?v=z1fFjrTMHVU – Burt_Harris Nov 15 '18 at 23:30
  • 1
    Acosta himself admitted he was warned he would be "thrown out" after disruptive conduct at a Trump press conference.. youtube.com/watch?v=903KoA5AtFA – Burt_Harris Nov 15 '18 at 23:41
  • 1
    Those would probably both be factors weighing in the White House's favor. In reply, he would probably point to all the other people who ask follow-ups without getting their passes revoked to prove that these justifications are mere pretext for First Amendment retaliation. My impression is that the WH has been offering shifting explanations for the decision, and that sort of thing can be fatal when you're trying to disprove pretext. – bdb484 Nov 16 '18 at 0:39
  • Others can take a hint when warned. Acosta, not so much, but not the key point Clearly distinguishing difference was Acosta refusal to give up the microphone to an intern who's job it was to pass the microphone around. Acosta resorted to intimidation to enforce his will, it was shocking. – Burt_Harris Nov 16 '18 at 1:46
  • Yeah, there's definitely a decent case to be made for yanking his pass. My prediction is that the final answer comes down to credibility. – bdb484 Nov 16 '18 at 3:09
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Does suspension of a privilege few people get justify a temporary restraining order on 5th amendment grounds?

We don't know, the White House doesn't know and CNN don't know - that's why its going to court. When you commence a lawsuit, you ask for the relief you believe you are entitled to - the court decides if you are or are not entitled to that relief.

CNN & Acosta certainly have a prima-facie case - he had a "liberty" (the rights the hard pass gave), he has been deprived of it and there doesn't appear to have been due process. We know from Sherrill v Knight that the Secret Service must use due process in granting press passes and what that due process would look like. It is an open question if they must use them in revoking them because the case did not address that. Hence the lawsuit.

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It probably does. The 5th Amendment cause of action states that

Plaintiffs have protected liberty and property interests in Acosta’s press credentials and the access it affords to the White House. The credentials allow Acosta access to his office in the White House and allow him to do his job effectively. Absent his credentials, he cannot serve as a White House correspondent.

which is where the 'deprived of property' part comes from. The lack of due process is that

Acosta received no direct notice from the White House that his credentials had been revoked, let alone any notice prior to the revocation.

Defendants did not provide Plaintiffs a written explanation, nor any explanation at all, before revoking Acosta’s press credentials. The only written explanation was a short statement posted on Twitter that Acosta was suspended because he “plac[ed] his hands” on a White House staffer.

Defendants did not provide Plaintiffs an opportunity to be heard before revoking Acosta’s press credentials. Nor have they provided him any avenue to challenge or appeal the revocation of his credentials.

It doesn't matter if the property interest is one that few people enjoy. What does matter is whether this is a property interest in the legal sense. However, it is not a foregone conclusion that this property interest is not counterbalanced by a legitimate government interest (though I don't see what that interest would be, but we will probably learn soon enough).

CNN's complaint and supporting arguments are available here; see their arguments that they are likely to succeed, drawing from case law. For example:

a White House press pass "undoubtedly qualifies as liberty which may not be denied without due process of law under the [Fifth Amendment]" (Sherrill)

  • I have a hard time believing Acosta has any property interest in the White House. The history of press being admitted to the White House shows it was a courtesy first extended by Teddy Roosevelt to reporters who were stuck out in the rain. – Burt_Harris Nov 15 '18 at 23:55

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