The action is legally premised on a 1977 U.S. Court of Appeals for the District of Columbia decision involving the White House’s years-long denial of a request for a hard pass by Robert Sherrill, the Washington correspondent for the Nation magazine, a left-leaning publication. In Sherrill vs. Knight, rt of Appeals held that “the protection afforded newsgathering under the 1st Amendment guarantee of freedom of the press … requires that this access not be denied arbitrarily or for less than compelling reasons.” The court said a reporter denied a hard pass must be given “notice of the factual bases for denial, an opportunity … to respond to these, and a final written statement of the reasons for denial.”
On the one hand, the suit deflects the attention from real issues to this litigation. That is, the White House is content that the litigation has drawn attention away from issues like Trump’s firing of Sessions, his threats to House Democrats, his false allegations of voter fraud, his shows of disrespect to veterans or any other number of alarming actions the president has taken since last Tuesday’s midterms. On the other hand, what the White House did was simply wrong. The code of federal regulations states that “in granting or denying a request for a security clearance made in response to an application for a White House press pass, officials of the Secret Service will be guided solely by the principle of whether the applicant presents 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.” Certainly, Acosta does not present a danger to the administration – at least not a physical danger! Further, the taking of the pass was without notice, a chance to respond and a written opinion by the White House – otherwise known as due process.