Judge halts Trump’s White House ban on CNN, MS NOW and Politico citing First Amendment rights

Washington — A federal judge on Tuesday blocked President Trump’s attempt to ban CNN, MS NOW and Politico from the White House, maintaining access to the grounds for reporters from the three news organizations indefinitely.

U.S. District Judge Timothy Kelly, who was appointed by Mr. Trump, granted the outlets’ request for a preliminary injunction, which will remain in place while the case moves forward. In a 26-page decision, Kelly found that the revocation of their journalists’ hard passes likely violated their Fifth and First Amendment rights.

“It is likely that President Trump’s revocation of Plaintiffs’ hard passes is the sort of action that would deter a reasonable reporter or news organization from publishing stories to which he objects,” Kelly wrote in his decision. “The revocation of Plaintiffs’ hard passes matters a lot as to how, whether, and to what extent they can do their jobs.”

The judge said Mr. Trump’s comments “suggest that he intended the revocation of Plaintiffs’ hard passes to alter their reporting on him, bolstering the case that his action here is sufficient to deter a reporter of ordinary firmness from reporting in the same way she had before.”

A White House official said the administration intends to appeal the decision.

“The Fake News has no place demanding a spot in the President’s Oval Office,” the official said in a statement. “The lies they smear are a disservice to the American public and tear at the very fabric of our Democracy. They’re completely capable of reporting from directly outside.”

Theodore Boutrous, lawyer for CNN, MS NOW, and Politico, said the court was right to block the White House from enforcing Mr. Trump’s ban.

“When the President issued his ‘ban on the free press,’ he blatantly and explicitly violated due process and the First Amendment,” Boutrous said in a statement. “Since then, the President has repeatedly, candidly, and consistently admitted in public that he banned our clients from the White House to punish reporting he doesn’t like and to try to force journalists to cover him in ways he prefers. The harm this ban did to our clients, the First Amendment, and the public as a whole is profound.”

The president announced last month his decision to ban journalists from CNN, MS NOW and Politico from the White House grounds because of what he said was their “constant ‘reporting’ FAKE NEWS.” Reporters from the three outlets who showed up at the White House the day after the ban was announced were turned away and had their press credentials taken by the U.S. Secret Service.

The news organizations filed their lawsuit on Sept. 21 and argued the president’s ban retaliated against them because of their news coverage, in violation of the First Amendment. CNN, MS NOW and Politico also argued their reporters were denied their Fifth Amendment right to due process because they were not provided notice that their reporting could lead to their White House access being revoked or the opportunity to respond.

The day after the outlets filed their suit, the White House Press Office sent them letters informing them of the president’s initial decision to revoke their journalists’ press credentials and setting a Sept. 25 deadline for them to respond. The White House argued that reporters from CNN, MS NOW and Politico violated standards of professionalism and published articles that raised national security concerns.

The White House provided the outlets with lists of pieces that it said “threatened national security and/or spread falsehoods.” But most of the articles were written by journalists who do not have White House hard passes. One of the flagged stories from Politico, which was published in June, was based on a press call organized by the White House. During the call, reporters were instructed to attribute quotes to a “senior administration official,” according to court records.

The news outlets asked Kelly to grant them temporary relief and restore their journalists’ access to the White House, which the judge agreed to do late last month.

His decision then was based on the press organizations’ due process argument. Kelly did not address their First Amendment claims.

CNN, MS NOW and Politico also asked Kelly to grant them longer-term relief, which would remain in place as the litigation plays out. 

In a hearing last week, the judge pressed a Justice Department lawyer on the Trump administration’s justifications for the ban and why the government’s argument in court appeared to differ from Mr. Trump’s public justification.

The Justice Department has argued that the president determined the outlets should be denied access to the White House because they violated standards of professionalism and threatened national security. But Mr. Trump has repeatedly attacked the outlets for “negative” coverage of his administration and for publishing “constantly bad stories.”

Mr. Trump “seems to have said publicly and on several occasions” that he was taking action “because of X and Y, and now the government is coming to court saying no, it was actually Z,” Kelly said.

The judge also said the due-process concerns were “the biggest hurdle” for the Justice Department to surmount.

In his decision, Kelly said the Trump administration failed to put forward evidence that Mr. Trump’s decision to revoke hard passes for CNN, MS NOW and Politico journalists initially was based on national security grounds, and reiterated that the reporting cited by the White House as raising issues is “commonplace, for better or worse.”

“When he announced the ban with his post on September 18, he did not mention national security. When he was asked later that day about the ‘particular reason’ for his action, he did not mention national security. And while it is true, days later, that he used the phrase ‘national security’ in subsequent social media posts about the ban, that expression appears to have been simply another way for him to describe Plaintiffs’ alleged inaccuracies and unfairness in their reporting about topics like his achievements or electoral success,” he wrote.

Addressing the letters the White House sent to each of the outlets informing them of the ban, Kelly wrote that they “appear to conflate concerns about otherwise protected speech (‘trafficking in verifiable falsehoods about … other issues’) with national security concerns.”

Mr. Trump has for years denounced the media over coverage that he dislikes, calling news outlets “fake news” and lobbing attacks against individual reporters. The president stopped the Associated Press from attending certain events at the White House over its refusal to use the name “Gulf of America” after his executive order changing the name of the Gulf of Mexico.

The AP sued and a federal appeals court allowed Mr. Trump to restrict its access to the Oval Office and Air Force One, places where only a subset of the White House press corps goes. But the appeals court has not yet ruled on the legal merits of the White House’s ban targeting AP journalists.

Mr. Trump’s decision to keep CNN, MS NOW and Politico journalists from the entire White House campus marked an escalation of his yearslong feud with the press. When he announced the ban targeting the three outlets, the president warned he could revoke access for “other Fake News Media Outlets.”

CNN and WTX US News are both part of Skydance, the parent company formed by the merger of Paramount and Warner Bros. Discovery.