Re Acosta lawsuit, haven't seen a written decision, but Judge K's ruling very narrow. Limited to the issue of fed regs/APA and maybe also due process. 1st amendment elements will continue on in the lawsuit, with a mighty band of media folks providing support/1
2/but 1A issue still strikes me as a hard one. Trump lawyer puts all the eggs in the basket of unlimited discretion to not engage with reporters in press conference setting. Not a crazy argument (although terrible policy). If Infowars reporter wriggled himself into press/2
3/couldn't Pres Trump (or Obama or Warren or Biden . . .) say simply "I don't like your reporting, get out?" Content-based discrim argument needs more nuance than just "Prez says CNN is enemy of the people." So, the argument is a difficult one. Due process? Let's stipulate/3
4/the trigger. What would due process look like? Neutral criteria? Opportunity to explain why reporter asked a follow up? A second chance? The more you get into the contours of what process is due, the stronger the case becomes for exec discretion. Judge K is not going/4
5/to write the seminal D/P decision in this case, but when it is kicked to appellate court, this will be a hard opinion to write consistent w/modern D/P ruling. In the end, the fed reg/APA hook may be most plausible one. Although Pres can certainly meet these standards of/5
6/revocation under reg procedures, if and insofar as he is dead set in doing so. So, no champagne corks for now. This is a slow, complicated (and perhaps ultimately political) process. To me, this is about CNN winning hearts and minds, not necessarily the lawsuit/end.
