CNN v. Trump: Is There a Constitutional Right to a Press Pass?

Network has sued Trump administration over Jim Acosta’s press credentials.

A federal judge could soon decide whether the Trump administration violated the U.S. Constitution when it stripped away the press credentials of CNN’s chief White House correspondent.

Legal experts say CNN’s lawsuit, which was filed Tuesday in Washington, makes plausible First Amendment claims that will be weighed carefully against the White House’s explanation for locking out the journalist, Jim Acosta.

The decision could turn, they say, on how U.S. District Judge Timothy Kelly views the White House’s decision on Mr. Acosta. That is, was it as an attempt to squelch Mr. Acosta’s constitutionally protected political beliefs or a move to bring order to the press room?

It is not the first time political journalists have gone to court over a presidential press pass. A similar question confronted a federal appeals court in Washington, D.C. more than 40 years ago. That case was brought by a Washington correspondent for the Nation who was denied White House press credentials for vague security reasons.

The appeals court in the 1977 ruling, Sherrill v. Knight, said the public doesn’t have a right of access to the White House and that a president can grant one-on-one interviews to whomever he chooses.

But the court said there were “important First Amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists” and that at minimum, a journalist shut out of the White House has the right to a lodge a formal protest and get a written explanation for a denial.

Lawyers for CNN say the White House isn’t trying to make news conferences run smoothly but “to cast out and punish reporters with whom it disagrees.”

CNN’s lawsuit likely benefits from Mr. Trump’s own words, which he hurled at Mr. Acosta at last week’s hot-tempered news conference, according to Ken Paulson, a First Amendment scholar at Middle Tennessee State University.

Ken White, a free-speech advocate who writes the Popehat legal blog, said CNN’s suit “is very plausible.” What’s less clear, he said, is “what role a court will take into probing the sincerity of the administration’s stated reason.”

Drilling into motives could require a lot of discovery and the production of emails and other evidence. But with CNN filing an emergency motion asking Judge Kelly to immediately restore Mr. Acosta’s credentials while the case is pending, the court doesn’t need to wait for the litigation to unfold. Judges tend to have a lot of leeway in determining whether to grant a preliminary injunction like the one CNN is seeking.

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