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The CNN Lawsuit Over Jim Acosta’s Press Pass

The press pass privileges of CNN’s Jim Acosta were revoked following an encounter with a White House intern during a presidential press conference. The intern had attempted to take away a microphone from Acosta when the President had recognized another reporter for a question. Acosta resisted the intern’s efforts. There is video of the event which clearly shows Acosta using his left hand to push away the intern’s arm.[1]

CNN and Acosta filed a lawsuit against President Trump and other members of the administration following the revocation of Acosta’s privileges associated with having a “hard pass” to the White House grounds and presidential events. The claims by CNN are totally without merit. Acosta may have a claim to “due process” under the Fifth Amendment.

No Injury to CNN or First Amendment Violation

CNN claims that its First Amendment rights of freedom of the press have been violated. The revocation of Acosta’s pass has not injured CNN in any way. Reports indicate that there are about 50 other CNN employees with a “hard pass” allowing coverage of the White House grounds. While the Sixth Amendment’s right to an attorney gives a criminal defendant the right to counsel of his choosing, CNN has no right to the reporter of its choice. CNN’s freedom of the press has had no interference.

Acosta Has Fifth Amendment Due Process Coming

The matter regarding Acosta personally is a bit more complicated. Think of the “hard pass” like a driver’s license. No one has a “right to drive” and no one has a “right to a hard pass”. Both are privileges that are granted when a person meets the requirements to earn the privilege. However, once the privilege is granted, if the government seeks to revoke the privilege, it is required to provide “due process” regarding the revocation.

As to the issuance of the press pass that Acosta held, there is an application process that includes an FBI background check and approval by the Secret Service. If an applicant is denied, the denial is in writing with reasons given for the revocation. Then he is given an opportunity within 60 days to respond in writing. The denied applicant is also given the chance for an in person hearing, with his own attorney, to contest the denial before the Assistant Director – Protective Operations of the Secret Service. That’s the “due process” involved in obtaining the “hard pass”.

The regulations do not provide for a revocation procedure, but a Fifth Amendment due process principle is that once the government grants a privilege, the recipient of that privilege is entitled to due process if it is revoked. It would in this instance seem, that Acosta is entitled to receive in writing why his pass was revoked and the chance to explain why it should not be.

There is a requirement in the issuance of the pass that the applicant not present “a potential source of physical danger to the President and/or the family of the President so serious as to justify his or her exclusion from White House press privileges.” A reporter that uses physical force just to hand onto a microphone may be a “potential source of physical danger”.

CNN Should Be Dismissed, Acosta Given a Hearing with Secret Service

Though the lawsuit will play out in the media with plenty of charges that President Trump has unconstitutionally interfered with CNN, there is a fairly simple outcome that should be the result. The reasonable outcome of the CNN lawsuit: CNN should be dismissed from the case as having no claim. Acosta should be given the reasons in writing regarding the revocation and a chance to respond.

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[1] There has been a very strange media circling of the wagons on this issue. The media have been excusing Acosta’s conduct because apparently he made a cordial comment as he was pushing the woman’s arm away. Additionally many outlets have been showing incomplete still photos leaving out the part where Acosta uses his left hand to push her outreached arm from the microphone. The video is quite clear.  Here’s a link to the original CSPAN video of the altercation, so you can judge for yourself.

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