A federal judge has extended an order blocking President Donald Trump’s administration from banning reporters for three news outlets from the White House, broadening his support for the journalists by arguing that the restriction violates their constitutional rights to free speech as well as due process.
U.S. District Judge Timothy Kelly ruled that CNN, MS NOW and Politico are likely to succeed in the extraordinary case pitting the president against the news outlets that cover him. In a victory for the journalists, Kelly expanded a previous, temporary ruling that the administration had violated the news outlets’ Fifth Amendment right to due process.
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In a late-night ruling Tuesday, he also sided with a second argument by the outlets: that Trump’s ban breached their First Amendment right to free speech.
Kelly rejected Trump’s reasoning that the ban was driven by policy goals, such as protecting national security. He argued the ban was the result of Trump’s stated belief that the outlets’ reporting was inaccurate and biased.
“Simply put,” Kelly wrote, “That is unlawful viewpoint discrimination" — the government taking action against types of speech or coverage it does not like.
“Still,” he added in his late-night order, “no one should interpret the Court’s decision to suggest that President Trump’s concerns about accuracy and fairness in the media’s reporting are unfounded, or that the government is powerless when its true aim is to protect national security when classified information is unlawfully disclosed.”
But Trump’s standoff with the press is far from over. Kelly’s order did not address whether Trump can ban the three outlets from the rotating pool of broadcast networks that cover the president in tight spaces and share the reporting.
The fight reflects Trump's increasing combativeness against news outlets and reporters whose content he does not like — including sharply curtailing Pentagon access for the press corps that covers the Defense Department. Trump or other parts of the executive branch have also, in policy and in the courts, grappled with The Wall Street Journal, The Associated Press and The New York Times — in addition to using the FCC to target broadcast networks.
The case of the three news outlets is increasingly messy and expensive. After the five-outlet rotating pool stood by CNN and canceled its coverage of Trump, the Justice Department over the weekend announced it was investigating whether those five companies violated antitrust laws in doing so.
Kelly's ruling stood largely by the news outlets. He wrote that without a preliminary injunction blocking Trump's ban, the outlets “are likely to suffer irreparable harm, and that the balance of the equities and the public interest tip in their favor.”
An email to the Justice Department, which is arguing the case on behalf of the administration, was not immediately returned. The White House also did not immediately respond to an email requesting comment.
Theodore Boutrous Jr., attorney for the three media organizations, hailed the judge's ruling.
“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. “The harm this ban did to our clients, the First Amendment, and the public as a whole is profound. The Court was right to enjoin the White House from enforcing this ‘unconstitutional ban on the free press’ for the foreseeable future.”
Kelly, who was nominated to the bench by Trump, previously ordered the White House to restore the reporters’ “hard pass” press credentials while he weighed their claims. With that temporary order expiring Tuesday, the judge issued a preliminary injunction that preserves the status quo indefinitely while the case is pending.
Kelly said that, “to put it mildly,” the White House didn’t give the plaintiffs any warning that they were in danger of losing their hard passes before Trump’s Sept. 18 social media post about their bans.
The judge also said the impact of the White House ban goes far beyond a single reporter's ability to do their job.
“The ban threatens to cut off all Plaintiffs’ access to the White House press area—a space open to many of their competitors—thereby restricting their ability to observe happenings there firsthand, immediately report on those activities, and try to engage with government officials,” the judge wrote.
Hard passes give journalists who regularly cover the White House longer term access to its campus without having to get permission ahead of time.
The government asked Kelly to suspend his own decision pending an appeal, but the judge said it didn’t justify that request. Kelly said the bans impacted a total of 78 reporters at the three news organizations.
Trump provided no notice before announcing the bans in a Sept. 18 social media post, which criticized their reporting as “fake news.” Kelly temporarily blocked the bans on Sept. 24 at the request of the news outlets, which jointly filed a lawsuit in Washington, D.C.
Attorneys for the outlets have described Trump’s move as “unprecedented and blatantly unconstitutional” under the First and Fifth amendments. They argued that it’s illegal for Trump to punish the journalists because he doesn’t like the content of their reporting.
“The ban also inflicts an injury on all news media organizations — which now risk a similar fate if they engage in fact-based, independent reporting the President deems insufficiently favorable,” plaintiffs’ lawyers wrote.
Government lawyers argued that access to the White House is a privilege — not a right — and said the president can impose the bans to protect national security and to stem the spread of misinformation.
“The White House is the official residence and workplace of the President,” Justice Department attorneys wrote. “Presidents have had a relationship with the press since the beginning. They have long decided which journalists should receive privileged access, which has varied substantially from administration to administration.”
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Associated Press reporter Rebecca Boone contributed.
