A federal judge is weighing whether to grant long-term legal protection to CNN, MS NOW, and Politico after President Donald Trump banned their reporters from the White House. While the outlets regained temporary access in late September, attorneys argue the administration continues to target them with viewpoint discrimination
ahead of the midterms.
Judge Kelly Weighs Injunction for News Outlets
U.S. District Judge Timothy Kelly, who was appointed by President Trump in 2017, is currently deciding whether to issue a preliminary injunction that would secure the news outlets’ access until a final ruling in the case. The judge has described key government arguments as an uphill climb
and a tough lift
at this stage of the litigation.
The core of the dispute centers on whether the White House provided fair notice and meaningful standards before revoking press credentials. Kelly expressed skepticism regarding the administration’s justification, repeatedly questioning why the government’s arguments in court appeared to differ from the president’s own stated reasons for the ban. Conor Fitzpatrick, chief supervising attorney for the Foundation for Individual Rights and Expression, observed that Kelly rightly pressed
Justice Department attorney Michael Velchik on the contradictions between the president’s public comments and the legal arguments being presented in the courtroom.
Lawyers Argue Ban Violates First Amendment
Representing the media organizations, attorney Theodore J. Boutrous Jr. argued that the ban is a classic example of viewpoint discrimination
that punishes journalists for their reporting. Boutrous told the court that the administration’s actions are a clear violation of the First Amendment, asserting that the White House is a nonpublic forum where restrictions must be reasonable and consistent with due process. Lawyers for the outlets contend that if a press pass is at risk because the president decides a story is false, that creates a very chilling
standard for the press.
The tension has been compounded by reports that the administration has inconsistently applied the ban even after the initial restraining order was granted. According to court filings, the White House has continued to selectively exclude CNN from its broadcast pool duties and from traveling on Air Force One. Boutrous argued that these ongoing restrictions serve as further evidence of retaliation for speech and news coverage that the administration dislikes. Kelly challenged the government to specify exactly what national security concerns were at stake, to which Velchik responded, We’ve always been clear that it’s not just national security.
President Trump’s Continued Rhetoric
The legal battle unfolds against a backdrop of ongoing public criticism from the president. Trump, who labeled the outlets fake news
when he announced the ban on September 18, reiterated his stance in a recent interview with Time. When asked about the impetus for the ban, the president stated, I don’t think anybody should be forced to bear fake news, constantly bad stories, because I’ve done great things.
This follows a pattern of behavior; in 2018, Kelly previously ordered the White House to restore press credentials for CNN correspondent Jim Acosta following a contentious exchange with the president.
The case relies on the precedent of a 2020 decision by an appeals court, which ruled that the White House could not revoke journalists’ security credentials without providing fair notice of its required standards and the penalties for violating them. As the administration continues to argue that such cases were wrongly decided, Judge Kelly’s upcoming decision will determine if that legal precedent holds firm as the midterm elections approach, with the president’s approval ratings currently underwater.