U.S. District Judge Timothy J. Kelly has scheduled a hearing for late Wednesday afternoon on CNN’s motion for the restraining order. If he grants CNN’s motion, Acosta would be back at the White House pending the outcome of a trial on CNN’s lawsuit, filed on Monday. Such a trial would not be held for many weeks, and possibly months. Kelly is a Trump appointee who has served on the district court since September 2017.
CNN has asserted that Trump, his aides and the Secret Service violated Acosta’s First and Fifth Amendment rights by taking away his press pass, which enables reporters to enter the White House grounds and cover events open to journalists. The First Amendment guarantees freedom of speech; the Fifth ensures government actions follow due process.
In a lengthy brief filed with the court Wednesday, the president’s lawyers asserted that Trump has “broad discretion” to choose who gets to attend presidential events, including news conferences on White House grounds. As a result, they urged Kelly to deny CNN’s motion.
“No journalist has a First Amendment right to enter the White House and the president need not survive First Amendment scrutiny whenever he exercises his discretion to deny an individual journalist one of the many hundreds of passes granting on-demand access to the White House complex,” wrote the president’s attorneys, a team of Justice Department lawyers led by Assistant Attorney General Joseph H. Hunt.
CNN and Acosta got support from a variety of news organizations, which said they would jointly file friend-of-the-court briefs in CNN’s behalf. The organizations included The Washington Post, the New York Times, Fox News, NBC News, the Associated Press, Bloomberg and others.
“Whether the news of the day concerns national security, the economy, or the environment, reporters covering the White House must remain free to ask questions,” lawyers for the group said in a statement. “It is imperative that independent journalists have access to the President and his activities, and that journalists are not barred for arbitrary reasons. Our news organizations support the fundamental constitutional right to question this president, or any president.”
In a separate statement, Fox News President Jay Wallace said: “Fox News supports CNN in its legal effort to regain its White House reporter’s press credential. We intend to file an amicus brief with the U.S. District Court. Secret Service passes for working White House journalists should never be weaponized. While we don’t condone the growing antagonistic tone by both the President and the press at recent media avails, we do support a free press, access and open exchanges for the American people.”
CNN’s suit names Trump, press secretary Sarah Sanders, Chief of Staff John F. Kelly, White House Communications Director Bill Shine and the Secret Service as defendants.
In an interview with the Daily Caller published Wednesday, Trump said he wasn’t sure whether the White House would win in court against CNN. “I don’t know, we should . . .” he said. “We’ll see how the court rules. Is it freedom of the press when somebody comes in and starts screaming questions and won’t sit down?”
He added: “Jim Acosta is just somebody who gets up and grandstands, he doesn’t even know what he’s asking you half of the time. . . . I really think that when you have guys like Acosta, I think they’re bad for the country.”
In a statement Tuesday, Sanders called the TV network’s lawsuit “more grandstanding from CNN” and said the White House will “vigorously” defend itself.
Legal experts say the network’s chances of winning in court are favorable. While a judge would probably give the president and Secret Service broad discretion to bar a reporter because of security threats, the First Amendment protects journalists against government restrictions on reporting.
The White House’s rationale for barring Acosta has shifted over the past week. Sanders originally said it was because of Acosta “placing his hands” on the unidentified press aide. But in her statement Tuesday, she made no mention of it and instead said the suspension was a result of Acosta’s failure to give other reporters a chance to ask questions.
“After Mr. Acosta asked the president two questions — each of which the president answered — he physically refused to surrender a White House microphone to an intern, so that other reporters might ask their questions,” she said. “This was not the first time this reporter has inappropriately refused to yield to other reporters. . . . The First Amendment is not served when a single reporter, of more than 150 present, attempts to monopolize the floor.”