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CNN’s First Legal Threshold in Acosta Case: A Temporary Restraining Order

WASHINGTON — CNN’s lawsuit against the Trump administration will get its first major test on Wednesday, when a federal judge will hold a hearing on whether to grant a temporary restraining order to restore White House correspondent Jim Acosta’s hard pass.

The hearing is scheduled in Washington before U.S. District Judge Timothy J. Kelly, a Trump appointee.

CNN’s lawsuit, filed on Tuesday by a legal team that includes Ted Boutrous and Ted Olson, is drawing support from a number of First Amendment and journalism groups, who see the case’s potential impact on access to the White House and press freedom in general.

In seeking the temporary restraining order and preliminary injunction, CNN has to prove that it is likely to succeed on the merits, and that Acosta is likely to suffer irreparable injury without such immediate relief, among other things.

Media law experts say at the very least, the network has a strong case that procedures were not followed.

Gary Bostwick, a media and First Amendment attorney based in Los Angeles, noted that CNN is not only claiming that Acosta’s First and Fifth Amendment rights were violated, but that the episode also flouted the Administrative Procedure Act. The Secret Service is named as a defendant in the lawsuit, and “they are supposed to give him a hearing and put up evidence,” Bostwick said.

Frequently cited is a 1977 D.C. Circuit opinion in the case of Robert Sherrill, a reporter for the Nation who had been denied a hard pass. The judges ruled that the government had a limited right to deny a media pass, namely for reasons of presidential security, but that procedures had to be in place so that the journalist could have a written explanation of the denial and an opportunity to rebut.

CNN said that didn’t happen. The Trump administration “has never suggested — nor could it suggest in good faith — that Acosta’s presence in the White House briefing room caused ‘concern for the physical security of the President and his family,’ or any other exigent circumstance requiring urgent decision-making,” the network said in its filing.

“It’s obvious that the White House took this action precipitously without giving him any notice or opportunity to respond, much less a written decision based on articulated criteria,” said Douglas E. Mirell, a specialist in the First Amendment for Greenberg Glusker.

CNN is also trying to show that the incident was a “pre-textual and unabashed attempt to censor a report and a network that the President views as one of his critics,” in violation of the First Amendment. In one of its briefs, CNN’s legal team laid out the many instances in which Trump has gone after the network as the “enemy of the people” and “fake news.” The purpose is to show that the President “has been very clear about his antipathy” toward the network and other journalists.

Still, Bostwick noted that this is “not an open-and-shut case where [the government] comes in and tries to shut down a newspaper. This is more attenuated.”

“To be more plain, the First Amendment obviously prohibits the government from gagging someone from speaking, but there are subtle ways of trying to gag someone,” he said. “This is one of the more attenuated ways to stop the press from reporting and giving the news. It is not a direct gagging. It is an indirect ban. ‘We don’t like the way you are covering us.'”

That is more of a challenge to prove than if a government entity tried to shut down a press outlet, Bostwick said.

“They are going to have to go to greater lengths to show that the purpose and the outcome is to stop the freedom of the press,” he said.

Press Secretary Sarah Huckabee Sanders, in a statement on Tuesday, noted that CNN already has “nearly 50 additional hard pass holders, and Mr. Acosta is no more or less special than any other media outlet or reporter with respect to the First Amendment.”

“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. This was not the first time this reporter has inappropriately refused to yield to other reporters,” she said.

“The White House cannot run an orderly and fair press conference when a reporter acts this way, which is neither appropriate nor professional,” she said.

CNN’s case also outlined the reasons why it is urgent for Acosta to have his credentials restored. He is their chief Washington correspondent and, as he stated in a sworn declaration, “the revocation of my White House press credential not only destroys my ability to perform my current job, it will follow me the rest of my career.”

The network is trying to show that the Trump administration’s explanation for why his credentials were revoked — that he placed his hands on a White House intern in conduct that was “inappropriate” — have shifted.

The video does not show Acosta placing his hands on the intern, but one hand inadvertently touching her arm as she tried to grab the microphone. CNN said the video that Huckabee Sanders sent out of the incident, in which portions are slowed and sped up, “shows that its justification was pre-textual and not in good faith.”

CNN also pointed to what Trump himself has said since the incident, including a remark he made on Friday that there “could be others also” who have their credentials revoked for not “treat[ing] the White House and the Office of the Presidency with respect.”

“I think there’s very little to be lost in pursuing this,” Mirell said. “Indeed, in my view, this is a righteous lawsuit which deserves to be adjudicated in an appropriate way, unless the White House determines that the cost of doing so is outweighed by simply returning the hard pass to Mr. Acosta.”

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