Powerhouse attorneys who’ve notched Supreme Court wins are representing CNN and Jim Acosta in a free-speech lawsuit against President Donald Trump over the revocation of the White House reporter’s press pass.
Gibson Dunn attorneys Theodore J. Boutrous Jr. and Theodore B. Olson, George W. Bush’s lawyer in the landmark 2000 high court case that sent him to the White House, filed the complaint on Tuesday in federal district court in Washington.
The suit against Trump, White House Chief of Staff John Kelly and Press Secretary Sarah Huckabee Sanders was spurred by Trump’s decision to revoke Acosta’s press credentials because he failed to “treat the White House with respect” during a Nov. 7 press conference.
Trump has since warned that he may revoke more press passes.
CNN and Acosta argue in the complaint that Trump’s action was “an unabashed attempt to censor the press and exclude reporters from the White House who challenge and dispute the president’s point of view.”
They also filed a motion to have Acosta’s credentials immediately reinstated because they’re likely to succeed on their claims. The Trump action was unconstitutional because it was a viewpoint-based punishment aimed at stifling news he doesn’t like, they argue.
A president isn’t constitutionally obligated to accommodate reporters, Harvard Law Professor Noah Feldman wrote for Bloomberg Opinion.
And presidents of both political parties have routinely exercised preferences in granting interviews or calling on questioners at news conferences, for example.
But Feldman notes that the government creates “what is in effect a forum for free speech” around interactions with the president once the White House opens its doors to all accredited reporters with press passes.
“It’s black letter law that, in such a “limited-purpose public forum,” the government isn’t allowed to discriminate based on a speaker’s viewpoint,” he said.
‘Grandstanding,’ A ‘Chilling Effect’
Huckabee Sanders called the lawsuit “just more grandstanding from CNN,” saying that the network has almost 50 others with White House press credentials. CNN said Trump’s actions could have a chilling effect on journalism.
Supreme Court veterans Boutrous and Olson have worked together before. They represented challengers to California’s ban on same-sex marriage in Hollingsworth v. Perry. The Supreme Court’s 2013 ruling in that case gave the green light for same-sex marriage in California.
Trump’s legal team reached out to Olson in March to ask whether he’d help represent the president relating to the special counsel investigation of Russia’s meddling in the 2016 presidential election. Olson declined.
Olson represented George W. Bush at the high court in Bush v. Gore, which ultimately sent him to the White House. Olson later became U.S. solicitor general under Bush.
Boutrous is known for his work in class actions. He represented the prevailing party in obtaining a unanimous Supreme Court decision enforcing the Class Action Fairness Act in Standard Fire Insurance Co. v. Knowles.