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;
 > 1. plaintiff will be irreparably injured if an injunction is not granted; 
 > 1. an injunction will not substantially injure the other party; and 
 > 1. 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)][1].

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]: https://scholar.google.com/scholar_case?case=12488850592485284013&hl=en&as_sdt=6&as_vis=1&oi=scholarr