WASHINGTON — A federal judge weighing whether to block President Donald Trump’s ban of three news outlets from White House grounds expressed some skepticism Wednesday in response to the government’s defense of the move.
U.S. District Judge Timothy Kelly, who was nominated by Trump in 2017, didn’t rule from the bench after hearing arguments in an extraordinary showdown between Trump and media outlets whose coverage he dislikes.
But the judge questioned whether the administration met its legal responsibilities and provided the news outlets with adequate due process before banning them on Friday, assailing what he called “fake news.” More recently, the president has said negative coverage was dangerous for the country.
The news outlets argued they were singled out because of the content of their coverage — in other words, viewpoint discrimination — and called the ban a “blatant violation” of the First Amendment.
Kelly said his decision must be guided by courts’ prior rulings in comparable First Amendment cases, even if the government disagrees with them.
“I think it is fair to say that the processes that the court laid out wasn’t followed here,” Kelly said.
It wasn’t clear when Kelly, who ordered a CNN journalist’s access restored in a similar case in 2018 — would issue a decision on the news outlets’ request for a restraining order. But he said he’d rule as soon as possible.
CNN, Politico and MS NOW each told The Associated Press they’d have no comment on the emergency hearing.
Prior rulings indicate journalists should be heard before press passes are revoked
Kelly opened by reminding both sides that he’s required to apply case precedent.
The rulings in two prior cases over press access — including one that went to the U.S. Supreme Court — made clear that journalists were entitled to an opportunity to be heard before they have their press passes revoked.
Justice Department attorney Michael Velchik argued that the rulings in the earlier cases were wrong.
“Access to the White House is a privilege, not a right,” Velchik said.
Theodore Boutrous Jr., attorney for the outlets, called the ban an “unprecedented, unreasonable punishment” and said there was “not a semblance of due process.”
The administration doubled down on its contention that it has the right to decide who can set foot in the White House.
“The president should be able to take immediate action to protect national security,” Velchik told the court.
In response, Boutros said, “Suddenly it’s a national security case,” arguing that the president brought up that point only after the lawsuit was filed.
The Trump administration outlined ‘reporting incidents’ of each news outlet
In a filing late Tuesday, administration lawyers argued that the ban does not violate the First Amendment, which guarantees the right to a free press. It contended that the outlets, in their reporting, violated “standards of professionalism and decorum expected of those given access to the White House complex, including by trafficking in verifiable falsehoods about national security and other issues and publishing sensitive or classified information.”
The administration went on to detail letters that were sent to each outlet that identified “a non-exhaustive list of reporting incidents, including those that have threatened national security and spread falsehoods.”
The “reporting incidents” cited in the filing included: CNN reporting on “‘top-secret’ construction details related to the East Wing bunker”; MS NOW reporting “on an alleged leak investigation”; and Politico publishing “a document detailing funding for the White House ballroom containing intricate descriptions of how the Secret Service would invest in security improvements.”
Further examples were given in individual letters. Politico’s letter detailed six incidents of reporting, including in June citing a “senior administration official … granted anonymity” predicting whether a preliminary deal would end the conflict with Iran.
That item appeared to reference a background briefing set up by the White House, where an official briefed reporters on condition of anonymity under ground rules set by the White House itself. Several other outlets also reported the official’s remarks.
Major networks continue to refrain from covering Trump for the media pool
The ban prompted other media outlets to take action in solidarity. The five-network U.S. network press pool — a rotating cast of news outlets that covers the president, and to which CNN belongs — decided to suspend coverage of Trump events until further notice.
After the hearing Wednesday, the networks were poised to continue their ban on filming Trump coverage. At Joint Base Andrews, where the president was to formally welcome Chinese President Xi Jinping later, journalists from Fox News, CBS and NBC were present but not shooting video, and some appeared to be breaking down their cameras.
Other television outlets whose crews were present, according to signs on their tripods and cameras, were NewsNation, Newsmax, Right Side Broadcasting Network, One America News and LindellTV.
Ahead of Wednesday’s hearing, an amicus brief was filed by other news groups, urging the court to immediately restore the three outlets’ White House access.
The brief — filed by the Reporters Committee for Freedom of the Press, the White House Correspondents’ Association and 49 media outlets and industry groups, including The Associated Press, The New York Times and Reuters — says “the targeted expulsion of news media from White House grounds injures the public interest” and ”unassailable First Amendment law makes any viewpoint-based decision to bar reporters from a nonpublic forum constitutionally repugnant.”
The proceedings are historic, said Katie Fallow, deputy litigation director at the Knight First Amendment Institute at Columbia University.
“No president has taken this explicit of a step” to ban entire news outlets because he doesn’t like their reporting, she said. “There have been various presidents throughout history who have grumbled about the press or threatened to take more major steps, but really there was nothing at this level before Trump.”
