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.
Protect Democracy’s executive director Ian Bassin applauded the suit:
Important suit from @cnn over White House’s unconstitutional retaliation against @Acosta. This is not the only retaliatory act Trump has taken in violation of #1A, as our suit w @PENamerican on which CNN’s suit builds lays out: https://t.co/RCheQM7S72 https://t.co/9J0NW2zH8f— Ian Bassin (@ianbassin) November 13, 2018
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.