The lawsuit, filed in D.C. federal court Tuesday, called the decision to ban Acosta from the White House after a particularly heated exchange with the president a "severe and unprecedented punishment" that amounts to an "unabashed attempt to censor the press."
The case represents a formal legal challenge to the behavior of a president who has lobbed extraordinary criticism at the news media in general and CNN in particular, accusing him and his administration of jumping from anti-press rhetoric to unconstitutional actions.
CNN and Acosta said in their complaint that they are suing "to enforce this constitutional commitment, restore Acosta's well-deserved press credentials and ensure that the press remains free to question the government and to report the business of the nation to the American people."
As the legal showdown gets under way, here's everything you need to know.
The Incident
The lawsuit centers on the administration's decision to revoke Acosta's so-called hard pass to the White House following a contentious press conference on Nov. 7, the day after the midterm elections.
With Trump himself at the lectern, Acosta asked one of the first questions, pressing the president on whether he would use the term "invasion" to describe the so-called caravan making its way to the United States from Central America, a major news item in the lead-up to the midterms.
Trump didn't answer the question but told Acosta "I think you should let me run the country." A White House staffer attempted to take the microphone from Acosta, but he refused to let go. He instead asked a follow-up question, prompting Trump to call him "a rude, terrible person."
Hours later, White House press secretary Sarah Huckabee Sanders announced that Acosta's press credentials had been suspended, on the grounds that he had placed his hands on the staffer who attempted to take the microphone, a claim rejected by CNN and Acosta.
The situation was complicated by a video released by Sanders that showed the encounter. Critics quickly called foul, saying the video had been doctored by the far-right website InfoWars to make Acosta's motions seem more aggressive.
That evening, Acosta was refused access to the White House, according to CNN, and the administration has since refused requests to restore his credentials.
The Claims
In their lawsuit, CNN and Acosta claim that decision to revoke his credentials is a violation of the First Amendment, discriminating against him based on both the content and the viewpoint of his speech.
Restrictions on First Amendment rights can be justified in certain circumstances, but CNN says the administration hasn't come close to doing so. The "placing his hands" explanation from the press secretary is "not accurate," the network wrote, and claims that Acosta failed to "treat the White House with respect" are "hollow."
"The only reasonable inference from defendants' conduct is that they have revoked Acosta's credentials as a form of content- and viewpoint-based discrimination and in retaliation for plaintiffs' exercise of protected First Amendment activity," CNN wrote.
"The sole justification for defendants' conduct is their dislike for plaintiffs' coverage of the administration and critique of the president," the network wrote. "But that is insufficient to justify such a substantial restriction on plaintiffs' First Amendment rights."
The suit, which named Trump, Sanders and other top administration officials as defendants, also claims that the decision to revoke the pass without warning or detailed explanation violates Acosta's Fifth Amendment right to due process.
"Defendants did not provide plaintiffs an opportunity to be heard before revoking Acosta's press credentials," CNN wrote. "Nor have they provided him any avenue to challenge or appeal the revocation of his credentials."
The Case Law
CNN's complaint points to a number of important rulings, including the U.S. Supreme Court's landmark 1964 decision in The New York Times v. Sullivan. But the most important cite, according to veteran media litigator Floyd Abrams, is a 1977 ruling by the D.C. Circuit called Sherrill v. Knight.
In that case, a correspondent for The Nation sued the Lyndon B. Johnson administration after he was refused credentials to the White House. Eventually, the court ruled that the First Amendment interest in covering the White House could not simply be cast aside without the kind of due process that's required by the Fifth Amendment.
"The interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the First Amendment," the court wrote at the time. "This First Amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the Fifth Amendment."
To be clear, the Sherrill ruling said the White House should have "considerable leeway" in denying passes, but that it must offer a prior notice and detailed explanation for why it was doing so. This would ensure that the decision was made for a legitimate reason, the court said, "rather than based on arbitrary or less than compelling reasons."
"The ultimate holding there was that the journalist was entitled to notice of why he was being denied a pass, the opportunity to be heard and a written decision," said Abrams, a partner at Cahill Gordon & Reindel LLP who has worked on a number of landmark free speech cases, including the famous Pentagon Papers case.
The Response
Hours after CNN filed its lawsuit on Tuesday, Sanders issued a detailed response, labeling the case "just more grandstanding from CNN" and saying the administration "will vigorously defend against this lawsuit."
The statement leans heavily on Acosta's interaction with the White House staffer, saying he had "physically refused to surrender a White House microphone to an intern, so that other reporters might ask their questions."
"The White House cannot run an orderly and fair press conference when a reporter acts this way, which is neither appropriate nor professional," Sanders wrote in the statement. "The First Amendment is not served when a single reporter, of more than 150 present, attempts to monopolize the floor.
"If there is no check on this type of behavior, it impedes the ability of the president, the White House staff and members of the media to conduct business," she said.
The Chances
Abrams, pointing to the precedent set by the D.C. Circuit in the Sherrill case, told Law360 that the network has a legitimate case against a White House that seemingly offered little in the way of prior written notice before booting Acosta.
"CNN's case is strong," Abrams said. "A president cannot deny access because he disapproves of the questions asked by a journalist, the views of the journalist or a desire to retaliate against the journalist."
The Sherrill ruling certainly gives the White House room to deny White House access to reporters, particularly when it involves the safety of the president. If Acosta harmed a White House intern, that would be a strong argument for revoking his press pass.
But as CNN repeatedly pointed out in its lawsuit, video evidence does not support the White House's "placing his hands" argument. In Tuesday's response to the lawsuit, Sanders said Acosta's conduct was not "appropriate nor professional," but she did not re-allege that he touched the staffer.
"If Sarah Sanders were correct in her assertions about Acosta's conduct, which certainly seems unlikely, that might be a basis for some sort of limitation of access," Abrams said. "What cannot be a basis for it is the president's frustration at the substance of the questions asked."
The Next Steps
Alongside their complaint, CNN and Acosta also filed a detailed motion for a temporary restraining order on Tuesday, seeking a court order forcing the White House to immediately restore the reporter's press pass while the case plays out.
The filing includes a sworn declaration from longtime ABC News reporter Sam Donaldson, who said he was "shocked and dismayed" by the decision and he could not remember any previous example of such an action in his decades as a White House correspondent.
"My colleagues and I never would have imagined such action was possible," Donaldson wrote. "What reporter or news organization will feel safe from White House retaliation because of what questions they ask or what news stories they write and publish if the action against Acosta is not reversed?"
CNN's case has been assigned to U.S. District Judge Timothy J. Kelly, a judge appointed by Trump to the D.C. District last year.
Late Tuesday, Judge Kelly ordered the administration to file a response to the motion for a temporary restraining order by 11:00 a.m. Eastern on Wednesday. A hearing on the motion has been scheduled for 3:30 p.m. Eastern.
The Legal Team
Beyond the substantive claims, one of the most notable aspects of Tuesday's lawsuit was the legal firepower on CNN's team.
The network is represented by a star-studded team of Gibson Dunn & Crutcher LLP attorneys that includes Ted Olson, a former solicitor general, and Ted Boutrous, the co-chair of the firm's litigation group.
Olson is best known for representing George W. Bush in Bush v. Gore, the Supreme Court case that ended the 2000 presidential election in Bush's favor. He later served as Bush's first solicitor general, and then teamed up with David Boies to win the high-profile same-sex marriage case Hollingsworth v. Perry at the high court.
According to a report by The Washington Post, Olson turned down an opportunity in March to represent Trump in Special Counsel Robert Mueller's probe of Russian interference in the 2016 election. In a television appearance a week later, he criticized the "turmoil" and "chaos" of Trump's administration.
Boutrous, meanwhile, is another veteran appellate attorney, arguing and winning at the Supreme Court in the landmark class action case Wal-Mart v. Dukes and working alongside Olson and Boies in the Hollingsworth case.
His presence in a First Amendment case against the Trump administration is no surprise: Back in the closing stages of the 2016 election, Boutrous vowed on Twitter to represent pro bono a newspaper that Trump had threatened to sue for libel.
Also on the team are Gibson Dunn partners Joshua S. Lipshutz and Anne Champion.
The Rest
Beyond the constitutional claims, the case also includes a third claim: That the revocation of Acosta's press pass amounted to the kind of "arbitrary" or "capricious" decision by a government agency that violates the federal Administrative Procedure Act.
And in addition to Trump and Sanders, the case also names as defendants John F. Kelly, Trump's chief of staff; William Shine, deputy chief of staff for communications; the United States Secret Service; the director of the Secret Service; and an unnamed Secret Service agent who stopped Acosta and took his hard pass when he attempted to re-enter the White House.
The case is Cable News Network Inc. v. Trump et al., case number 1:18-cv-02610, in the U.S. District Court for the District of Columbia.
--Editing by Katherine Rautenberg.
For a reprint of this article, please contact reprints@law360.com.
