Cable News Network and Abilio James Acosta v. Donald J. Trump, President of the United States, et al., No. 18-02610 (D. D.C.)

Today the White House advised Cable News Network and its reporter, Abilio James Acosta, that Acosta’s hard press pass is restored.  Granting restoration obviates the need for the injunction granted to plaintiffs and for further litigation  plaintiffs have submitted a notice of voluntary dismissal without prejudice to the court.

The case commenced following a press conference contretemps between the President and Acosta.  Acosta persisted in asking questions while the President indicated that questioning was unwelcome.  Following the press conference, Acosta’s credentials allowing access to the White House (the “hard pass”) were suspended.

CNN and Acosta sought and obtained a temporary restraining order restoring his hard pass based on violation of the Fifth Amendment due process clause, which protects the reporter’s liberty interest in his First Amendment activity as a reporter.  The court found that the White House had failed to provide Acosta with notice and an opportunity to address the issues requiring suspension, and that the White House’s after the fact rationales for suspension failed to satisfy those constitutional due process requirements.

The court did not address any of the First Amendment issues CNN and Acosta raised.

Concomitantly with granting Acosta and CNN the relief they sought, the White House has promulgated rules of behavior for members of the press, noting with regret that historically there has been no need for such measures.

No official copy of the rules has been located.   The rules are reported to limit reporters to one question and require reporters to ‘yield the floor’ to other reporters once that one question has been asked or once any follow-up questions, permitted at the executive’s discretion, are asked.  Failure to adhere to the rules may result in suspension or revocation of press credentials.

Plaintiffs claim victory here, yet one wonders whether it will prove to be of the Phyrric sort.  The publication of rules of behavior for the press corps deprofessionalizes the entire group.  While encounters between the administration and the press do not always go smoothly, the healthy tension between the interests of the two institutions, and the often lively exchanges this tension invites, should not be squelched, lest the free flow of information be stifled, to the detriment of all.

The notice of dismissal and a copy of the transcript of the order granting the temporary restraining order follow.

CNN v. Trump Voluntary Dismissal

2018 11 16 CNN v. Trump Transcript Order Granting T.R.O.