A federal judge on Tuesday extended an order blocking the Trump administration from banning reporters for three news outlets from the White House, a pivotal operational development for the news organizations as the extraordinary case pitting the president against the media that cover him makes its way through the legal system.
In a victory for media organizations at a time when tension between the White House and journalists is high, U.S. District
Judge Timothy Kelly ruled that CNN, MS NOW and Politico are likely to succeed in their constitutional free speech and due process claims.
“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.”
Kelly agreed with the plaintiffs that the national security arguments came after the fact and were unsupported by the administration. But the judge wrote that without a preliminary injunction 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.
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 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 President Donald Trump’s Sept. 18 social media post about their bans.
“The revocation of Plaintiffs’ hard passes matters a lot as to how, whether, and to what extent they can do their jobs,” he wrote. “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,"
Kelly said the bans impacted a total of 78 reporters at the three news organizations.
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 while the case is pending.
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.”
