Three media outlets urged a federal judge on Wednesday to grant them a temporary restraining order blocking President Donald Trump’s decision to ban them from the White House grounds, arguing that the ban violated the First Amendment and spurred due process concerns.
CNN, MS NOW and Politico filed a lawsuit against the Trump administration on Monday after the White House confiscated their reporters’ media badges over the weekend. The case is part of the president’s contentious history with prohibiting media access, though journalists who have had their credentials revoked have historically won in court.
The Justice Department added a new layer to Trump’s ban during the hearing, arguing that the outlets had undermined national security interests through their reporting. That reasoning was not mentioned in the president’s initial announcement post on Friday, which bashed the companies’ “constant ‘reporting’ FAKE NEWS” — a theme DOJ lawyers also repeated throughout the roughly hourlong hearing, adding that access to the White House “is a privilege, not a right.”
The media outlets’ legal team said federal law allows the president to be critical of the news, but it does not empower him to use his power to punish the journalists.
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U.S. District Judge Timothy Kelly, who ordered the Trump administration to restore then-CNN Chief White House Correspondent Jim Acosta’s press pass in 2018, opened the hearing by referencing D.C. federal court precedent that gives journalists the right to receive adequate notice about their conduct prior to their passes being revoked. Kelly, a Trump appointee, appeared skeptical of the government’s arguments at multiple points, and said due process “wasn’t followed here” — a constitutional guarantee that has come up in previous media cases.
Kelly said he would issue a ruling “as soon as I can,” meaning Trump’s ban will remain in effect for the dozens of journalists with White House press credentials.
On Tuesday, the Trump administration sent letters to the three companies, citing national security concerns and standards of journalistic professionalism as justification for the bans. The DOJ’s attorney, Michael Velchik, asserted that the notification sent in the letters was acceptable because “general standards of journalism professionalism are widely known.”
But the letters were sent after the initial ban, the attorney representing the media outlets, Ted Boutrous Jr., argued, characterizing them as a post-hoc justification from the administration.
“I don’t know how a letter that they got after the pass was revoked would have provided them with the kind of standard they had to conform their conduct to,” Kelly said in response to Velchik.
Boutrous said the case “all of a sudden” encompasses national security — which Trump did not mention “at all” in his initial Truth Social post on Friday. Since Trump “wears his heart on his sleeve” and often publicly criticizes members of the media and their reporting, the ban is a clear example of viewpoint discrimination, Boutrous said.
He also pointed to the broader “chilling effect” that the media ban could have “on a reasonable person or reasonable reporter.”
The DOJ published a list of stories from the outlets that prompted the ban in their court filing Tuesday night. Boutrous noted that of the four CNN articles, only one was written by a reporter with a hard pass, the type of credential that the White House revoked ahead of this case.
In regards to any viewpoint discrimination, “the president criticizes many people, probably every news organization,” Velchik said. “He has criticized other news organizations even more,” and reporters should not get a “get out of jail free card” because the president has criticized them at some point, he added.
Velchik also pointed to Friday’s 5 p.m. deadline for the journalists to submit their formal objections to White House for consideration before the administration makes the ban final, and called on Kelly to consider the potential relief that process could provide.
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