A federal judge prohibited the Trump administration from banning CNN, MS NOW and Politico from the White House grounds.
U.S. District Judge Timothy Kelly, a Trump appointee, wrote in his opinion that the news outlets “are likely to succeed not only on their due process claim, but also on their two First Amendment claims.”
But he added that “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.”
Trump announced on Sept. 18 that he was barring the three outlets access to White House grounds, complaining that they were “‘reporting’ fake news.”. A day later, their reporters who tried to enter the security checkpoint found their hard passes deactivated.
The news outlets sued, and Kelly issued a temporary restraining order halting Trump’s restriction on the outlets, something that forced the White House to restore the hard passes to dozens of reporters and other staffers. That TRO expired on Tuesday; the preliminary injunction means that the White House cannot enforce Trump’s ban in the long term, either until a trial or an appeal.
In defending the ban, the government cited national security reasons, although DOJ attorneys also argued that the news organizations did not meet “minimum requirements of professionalism.” While the DOJ pointed to stories published or aired that had to do with national security, they also cited as an example an MS NOW report that Trump aides considered an option of adding the president’s name to Ford’s Theatre. Trump later denied it.
In his 26-page opinion, Kelly cited D.C. Circuit precedents in that reporters had a right to due process before their hard pass is revoked.
“To put it mildly, [the news outlets] ikely did not receive notice either of the conduct that would subject them to revocation of their hard passes, or of the magnitude of the revocation sanction itself,” the judge wrote.
He noted that some of the stories cited by the White House were published and then their authors had their hard passes renewed earlier this year, only to have them revoked when Trump imposed his sweeping ban. The White House press office sent letters to the news organizations on September 22, informing them of the reasons and their ability to contest the action, but that was four days after the ban was implemented.
The judge also sided with the news outlets’ in their claims that Trump was engaging in retaliation and viewpoint discrimination in violation of the First Amendment.
“President Trump’s own 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. After explaining that he excluded Plaintiffs from the White House because they ‘purposely write negative news . . . to try and diminish the Republicans and a Republican administration,’ President Trump remarked that he is prepared to take ‘the ban . . . as far as you can,’ but that he would “love it” if they “could straighten themselves out.”
The judge added, “The record is clear that President Trump made the decision at issue. And his announcement of the ban and later remarks explaining the reason for it make this a straightforward conclusion: President Trump likely banned Plaintiffs from the White House because he believes that their reporting is generally inaccurate and biased against him.”
He also dismissed the government’s national security argument. He noted that there was “no evidence in the record” that he made the decision to revoke the passes for those reasons “from the get go, nor at any time has he directly stated that national security was the reason for his decision.”
The judge explained that because the D.C. Circuit has held that the White House press area is a “non public forum,” the government cannot limit access based on someone’s viewpoint.
The judge wrote that “it is likely that Plaintiffs were selected by President Trump for revocation of their access to the White House press area because he believes their coverage of him and his administration is generally inaccurate and biased—in other words, it was ‘an effort to suppress the speaker’s activity due to disagreement with the speaker’s view.’”
More to come.
