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Opinion Standing up for the First Amendment

Media critic Erik Wemple breaks down CNN's lawsuit against President Trump and others, and the White House's response to it. (Video: Gillian Brockell/The Washington Post)

The Post reports:

CNN sued the Trump administration on behalf of reporter Jim Acosta on Tuesday, asking a court to restore Acosta’s White House press pass after President Trump suspended it last week.
The unusual lawsuit, an escalation of Trump’s long-running war of words with CNN, seeks a judge’s intervention after Trump banished Acosta from the White House grounds for an indefinite period after a brief altercation between Acosta and a White House press aide. …
CNN filed suit in U.S. District Court in Washington. “We have asked this court for an immediate restraining order requiring the pass be returned to Jim, and will seek permanent relief as part of this process,” the network said in a statement released Tuesday morning.

One lawyer for CNN is the highly respected Ted Olson, former solicitor general under George W. Bush. The lawsuit alleges that the content of Acosta’s reporting, not the phony allegation that Acosta “place[d] his hands on the intern,” was the reason his “hard pass” was pulled. As a result, the lawsuit argues, he was irreparably harmed and therefore requires injunctive relief to continue reporting. The complaint also alleges violation of the Fifth Amendment’s due process protections and the Administrative Procedure Act, because Trump acted arbitrarily and capriciously.

The lawsuit is very likely to succeed. “The White House cannot constitutionally exclude a reporter from press briefings because the reporter or his employer has criticized the President or his aides,” Geoffrey Stone, Chicago Law School professor and one of the leading constitutional scholars in the country, tells me. “Such an action would clearly violate the First Amendment. Although the White House can limit the number of reporters who can attend such events, it cannot exclude a reporter to punish him for his or his employer’s critical comments about the President.”

The legal ground for this suit was plowed by an earlier action filed by Protect Democracy on behalf of the writers’ group PEN America. The PEN lawsuit’s legal theory, namely that Trump’s use of the powers of his office to curb criticism violates the First Amendment, postulates that his actions have a chilling effect on other journalists. The Acosta lawsuit is the perfect example of this. By pulling Acosta’s credentials, Trump signaled to other members of the media that they, too, are at risk if they ask tough questions or are insufficiently deferential toward Trump. Indeed, Trump ominously hinted that he would consider pulling other journalists’ credentials.

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Protect Democracy’s executive director Ian Bassin applauded the suit:

That any lawsuits had to be filed at all should illustrate how abnormally and outrageously this administration behaves. No other administration has branded the media “the enemy of the people,” turned crowds into a hissing and chanting mob gesticulating at the media and/or threatened to pull the license of a network.

Even if the White House relents and returns Acosta’s “hard pass,” CNN and others have an interest in preventing the administration from doing it again. It is the fear of losing one’s ability to cover the White House critically that is the essence of Trump’s unconstitutional efforts to chill the press.

There is concern, rightfully so, that the media not “make it all about them,” which only fuels the Trumpian argument that the media is biased against him. However, by filing the lawsuit, CNN allows its reporters to do their jobs; the controversy is directed to the courts, not to the White House briefing room. If it takes a court ruling to force Trump to respect the First Amendment and uphold his oath to protect and defend the Constitution, so be it.

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