A federal judge on Wednesday said that President Donald Trump did not follow legal precedent in banning three news outlets from the White House last week, potentially signaling that he may temporarily restore access.
It is “fair to say the processes that the Circuit laid out in those two cases wasn’t followed here,” said U.S. District Judge Timothy Kelly.
Although the Trump appointee — whom the president has derided on Truth Social in recent days — did not rule from the bench, he appeared to signal that he was sympathetic to arguments from CNN, MS NOW and Politico.
The media outlets argue that their ban from the White House grounds violates the First Amendment and their Fifth Amendment due process rights. Kelly on Wednesday focused on the latter.
“Before we get to any core First Amendment issues, there is a due process claim and a due process issue that seems to me the first stop in figuring out how to resolve the motion,” he said.
Kelly suggested the three outlets, each of which received letters from the White House explaining why they were banned, may not have been given proper notice in accordance with prominent cases already decided by the U.S. Court of Appeals for the District of Columbia Circuit. These include a 1977 case concerning the Nation reporter Robert Sherrill, and a 2020 case involving Playboy reporter Brian Karem.
Then-CNN reporter Jim Acosta’s press pass revocation played out in the U.S. District Court for the District of Columbia in 2018 before Kelly, who granted a temporary restraining order to let him back in the White House. The case was dropped soon after.
The White House in legal filings argued that Trump’s actions are lawful and has accused the outlets of threatening national security by “trafficking in verifiable falsehoods” and publishing sensitive or classified information.
“Access to the White House is a privilege — not a right,” the Trump administration said in the filing.
No U.S. law explicitly makes it a crime for a journalist to obtain or publish classified information.
The filing includes letters from the White House press office to CNN, MS NOW and Politico, citing coverage of the White House construction projects, U.S. munitions stockpiles and the Iran war.
Included is CNN’s article about the construction of a secure underground facility beneath the White House’s East Wing, and a piece by Politico saying that the Iran war has made the United States more vulnerable.
Kelly appeared skeptical that these letters satisfy the government’s due process requirements for informing the outlets of the ban, giving a reason and providing them a chance to reply.
“I don’t know how a letter that they got after the pass was revoked could provide them with the kind of standards that they would have to conform their conduct to,” he said during the hearing. “It’s a piece of paper they got saying, ‘You’ve already violated this.’”
In a letter to Politico, the White House took issue with the outlet’s use of anonymous sources, among other critiques. The Washington Post reported Wednesday that one story the White House cited derived from a press call it conducted for Politico and other news outlets, in which the outlets were told not to name the speaker.
CNN and Politico did not immediately respond to a request for comment early Wednesday about the government’s filings. MS NOW directed The Post to a joint statement, saying the White House had revoked credentials from their journalists “because it objected to our reporting.”
“Left unchallenged, this threatens press freedom and the public’s right to independent journalism free from government interference,” the outlets said at the time.
Trump first said Friday that he would ban the three outlets from the White House, saying he disliked how they covered him and accusing them of being “fake news.” The following day, the organizations said their journalists were blocked from White House grounds and press passes confiscated.
The media organizations fought back, filing the lawsuit in federal court Monday, alleging Trump and others violated their First Amendment free-press rights and due process under the Fifth Amendment. They asked a federal judge to halt the bans and restore their access. Other media outlets banded together in support, stopping video and photographic coverage of the president.
Plaintiffs in the lawsuit include the media outlets and their White House reporters: MS NOW’s Akayla Gardner, CNN’s Betsy Klein and Politico’s Cheyenne Haslett. Trump, White House Chief of Staff Susie Wiles, White House communications director Steven Cheung and Secret Service Director Sean M. Curran are named as defendants in their government capacities.
The White House responded to a request for comment by directing The Post to a post that Trump made Monday on Truth Social in which he said the White House was not assailing a free press but cracking down on “FAKE NEWS,” describing it as “corrupt, purposeful, pervasive, fully coordinated, and totally out of control.”
Trump has said he will allow the three outlets back in if Kelly strikes down the ban, but the president insisted he should have the right to kick them out.
“I’m talking about national security, and I think we have a right to clean out fake news,” he told reporters Tuesday.
The president of the White House Correspondents’ Association has called for the reporters’ access to be immediately restored. Press advocacy groups have also condemned the move as a violation of the First Amendment, and legal experts have said they are skeptical the ban will hold up.
U.S. courts have consistently ruled that denying or restricting a journalist’s entry to the White House on the basis of their reporting violates the First Amendment. Failure to provide a clearly stated justification for any denial risks violating the Fifth Amendment’s due process clause.
The Reporters Committee for Freedom of the Press, the White House Correspondents’ Association and 49 news organizations — including The Post — filed an amicus, or friend-of-the-court, brief on Wednesday in support of the banned outlets’ motion for a temporary restraining order.
The groups wrote that they “know firsthand the importance of physical access by the press to government places and personnel, as well as the need for independence from undue government influence so that journalists can keep the public informed and perform their watchdog role.”
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