December 2018 | Around the ABA

Legal Fact Check: Can the White House pull a reporter’s credentials?

CNN announced last Monday it was dropping its lawsuit against the White House after learning that reporter Jim Acosta’s press credentials would be fully restored as long as he abides by a series of new rules at presidential news conferences, including asking just one question at a time.

ABA Legal Fact Check seeks to help the public find dependable answers and explanations to swirling and sometimes confusing legal questions. The URL for the site is www.abalegalfactcheck.com. Follow us on twitter @ABAFactCheck.“Today the White House fully restored Jim Acosta’s press pass,” CNN said in a statement. “As a result, our lawsuit is no longer necessary.”

On Friday, a federal judge ordered the White House to temporarily restore the press credential of CNN reporter Jim Acosta, which was pulled on Nov. 7 after a verbal brush-up with President Donald Trump at a news conference.

The judge cited Fifth Amendment grounds of “due process” in his emergency order while allowing the case to continue. Three days earlier, CNN filed suit, naming as defendants the president, three White House aides and the U.S. Secret Service, which protects the president and formally processes White House media passes.

As detailed in a ABA Legal Fact Check, the judge’s order is consistent with lower court rulings dating back more than 40 years ago that raised First and Fifth Amendment concerns in decisions to deny White House media credentials, called a “hard” pass.

While presidents have squared off against individual reporters in the past, media credentials are rarely revoked for a reporter who regularly covers the White House. A half century ago, however, the Secret Service periodically denied media credentials for niche or alternative media. This led to lawsuits suits in the 1970s that tested whether the White House had the authority to deny a “hard” pass and on what grounds.

In the 1977 case involving Robert Sherrill of The Nation, a three-judge appeals court panel unanimously said the government had the limited right to deny a media pass. But the panel added that the Secret Service had to articulate and publish “an explicit and meaningful standard” to support its actions and “afford procedural protections.” The case never went to the U.S. Supreme Court.

The appeals court panel did not address “what procedures must be employed in the revocation, for security reasons, of an already-issued White House press pass,” noting it was leaving that issue to a future court.

ABA Legal Fact Check seeks to help the public find dependable answers and explanations to swirling and sometimes confusing legal questions. The URL for the site is www.abalegalfactcheck.com. Follow us on twitter @ABAFactCheck.

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