The battle over the revocation of CNN correspondent Jim Acosta’s “hard pass,” which permitted Acosta regular access to White House press briefings, has been resolved practically, but not legally.  A federal district judge issued an order temporarily restoring Acosta’s pass during his lawsuit against Donald Trump and other members of the Trump Administration.  The White House then essentially settled the case by promulgating new rules of decorum, requiring journalists to ask only one question.  For now, the Acosta case appears resolved.  The legal issues, however, remain significant, interesting, and relevant.  Below is some preliminary analysis of Acosta’s lawsuit and the White House’s authority to issue and revoke hard passes and control its press briefings.

The November 7th video of Jim Acosta’s questioning President Trump about the migrant caravan attempting to reach the United States from several countries in Central America demonstrates Trump’s unrestrained disdain for CNN, Jim Acosta, and then also for NBC News’ Peter Alexander.  After a White House intern attempted to take a microphone from Acosta, he held on to the microphone and continued asking his questions.   The White House then revoked Acosta’s hard pass, citing his “placing his hands” on a White House staffer, although the video indicates no violence or even reasonably offensive touching (using the battery tort standard), given the context.  Shockingly, the White House, through Press Secretary Sarah Huckabee Sanders, may have released altered video of the event in order to give the appearance that the encounter was more violent than reality.

Acosta and CNN’s lawsuit alleged that the Trump Administration violated both the First Amendment and the Fifth Amendment.  The basis for the free speech claim is the allegation that Acosta’s hard pass was revoked due to the content and viewpoint of Acosta’s speech, and the White House is using his relatively benign incident with an intern as a pretext for punishing Acosta and his network for their critiques of the President.  The basis for the Fifth Amendment due process claim is that Acosta possesses liberty and property interests in his hard pass, and thus the White House must provide some form of process, or hearing and adjudication, before his credentials can be revoked.  The complaint also alleges an Administrative Procedure Act claim, alleging that the Secret Service, an administrative agency, may not arbitrarily revoke a press credential.

The Trump Administration’s response to the lawsuit argued that press passes are not an entitlement, and that the White House has broad discretion in issuing press passes.  According to the filing, “The president is generally free to open the White House doors to political allies, in the hopes of furthering a particular agenda, and he is equally free to invite in only political foes, in the hopes of convincing them of his position….The First Amendment simply does not regulate these decisions.”

The most relevant D.C. Circuit Court precedent on point, Sherrill v. Knight, held that because important First Amendment interests are implicated in the denial of a press pass, the government must provide notice and a hearing before revoking press passes, and can deny a press pass to a bona fide Washington journalist only for compelling reasons.  Although the White House need not open its access to bona fide journalists, once the President establishes this forum, it needs a compelling reason for excluding some – and discrimination on the basis of viewpoint is not constitutionally permissible.

D.C. District Court Judge Timothy Kelly, in an oral ruling, found that Acosta had shown a likelihood of success on the merits of his lawsuit and irreparable harm if Acosta’s press pass were suspended during the pendency of his lawsuit.  The Trump Administration must promulgate reasons for the revocation of Acosta’s press pass and restore Acosta’s pass for at least 14 days.  Judge Kelly’s ruling was based on Fifth Amendment due process, not First Amendment principles.

Ostensibly in response to Judge Kelly’s ruling on the temporary restraining order, the White House sent a letter to Acosta detailing its reasons for suspending his hard pass and noting that it would be revoked when the 14-day temporary restraining order expired.  Acosta and CNN then filed an emergency motion with the court.

On Monday, CNN and Acosta dropped the lawsuit after Acosta’s press credentials were restored.  The White House expects Acosta to comply with new rules of decorum, including asking only one question – with the President having discretion to allow a follow-up question, and yielding the floor after the question.  Although these new rules implicate free speech values, in that they give the President broad discretion to control questioning (and thus scrutiny) by the media, they may actually not be problematic from a First Amendment perspective, so long as they are specific and detailed enough, and applied in an even-handed way.

However, if a court deems that these rules give the President too much discretion to punish reporters based on viewpoint (which may be the case), the rules may violate the First Amendment.  Even if a government official does not obviously discriminate on the basis of viewpoint (a clear constitutional violation), permitting processes that give decisionmakers too much discretion to discriminate on the basis of viewpoint are constitutionally suspect.  From a due process perspective, the rules appear to be sufficiently specific and detailed, but the real due process issues will arise after President Trump attempts to revoke another press pass.  Then, a court will test whether the reasons for the revocation are sufficient to satisfy due process.

The truly difficult and interesting legal questions surround the President’s discretion to allow journalists to ask direct questions and the President’s ability to create a forum more restricted than the one in Sherrill.  The President’s motion in opposition to the temporary restraining order advances a narrow reading of Sherrill, where the President is permitted to revoke a pass after personal interaction with a member of the press whom the President does not deem worthy of asking direct questions to the President – especially when based on a history of refusing to yield the floor.  Sherrill involved the denial of press credentials by the Secret Service, for security reasons, even though all other parties deemed the journalist an “otherwise eligible journalist.”  President Trump believes that he deserves broad discretion to determine who is an eligible journalist (and that Acosta may not be one), an issue not addressed by Sherrill.

Because the protections afforded by the First Amendment are so dependent on forum analysis, the First Amendment questions at issue will depend greatly on the type of forum President Trump has created for his press briefings.  Perversely, the more President Trump restricts his press briefings, the more constitutional leeway he possesses to restrict his press briefings.  This is because he need not hold press briefings in the first place and has some capacity to create a forum with fewer constitutional protections than a traditional public forum.  I can see why Judge Kelly dodged the First Amendment questions.  Stay tuned for more analysis on these issues as they arise.