CNN Suit Is an Important and Necessary Defense of Press Freedom

By
Jameel Jaffer and Katie Fallow
November 14, 2018

Last week President Trump revoked a CNN reporter’s access to the White House after the reporter, Jim Acosta, repeatedly questioned the president’s contention that migrants are “invading” the United States. On Tuesday CNN filed a lawsuit challenging the White House’s action. CNN was right to file the suit, and the court should order the White House to restore Acosta’s access—not just to remedy an individual violation of press freedom but to protect the ability of all reporters to do their work. This morning, the White House issued a formal response to the suit, asserting that Trump has “broad discretion” to regulate press access.

CNN is right that the White House acted unconstitutionally. When Acosta pursued his line of questioning about the so-called migrant caravan over the president’s objection, a visibly angry Trump called Acosta a “rude” and “terrible” person and an “enemy of the people.” Later that day the Secret Service informed Acosta that his “hard pass” press credential was being revoked, a decision that Trump subsequently acknowledged he directed.

When the government establishes an open forum for expressive activity, the First Amendment forbids it from selectively excluding speakers because of their viewpoints.  As a federal appeals court held in a case decided four decades ago, this means that the White House can’t arbitrarily bar a journalist from White House press facilities. In that case, Sherrill v. Knight, the Secret Service denied a request for White House press credentials from a journalist for The Nation without providing any explanation for the denial. In holding that the government was required to explain the denial and afford the journalist an opportunity to contest it, the court observed that a decision to deny press credentials based on the content of the journalist’s speech would raise serious constitutional questions.

The record strongly suggests that the White House revoked Acosta’s access because of the viewpoint implicit in Acosta’s questions. Because that kind of viewpoint-based exclusion violates a fundamental First Amendment principle, CNN should prevail in court.

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