Judge deals another blow to Trump’s White House media bans

A federal judge has extended CNN, MS NOW and Politico’s access to the White House following President Donald Trump’s decision in September to ban the news outlets.

U.S. District Judge Timothy Kelly, who was appointed by Trump to the federal bench in 2017, issued a preliminary injunction on Tuesday that supplants a temporary restraining order (TRO) he granted Sept. 24.

A preliminary injunction is a more strenuous and longer-lasting intervention than a TRO, and it means that the three news outlets can maintain regular access to White House grounds while litigation proceeds.

In his opinion, Kelly said the plaintiffs were likely to succeed in arguing that Trump’s ban violated the news outlets’ right to due process under the Fifth Amendment and a free press under the First Amendment.

However, he cautioned 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 first announced on Sept. 18 that CNN, MS NOW and Politico were banned from the White House for reporting what he called “fake news.” But the exile lasted mere days, with Kelly granting the TRO in the predawn hours of Sept. 24 ordering the White House to “return, reinstate, and restore” press passes held by the outlets.

Some restrictions are still in place, however: CNN and Politico were blocked from flying on Air Force One with Trump to complete their respective duties for the press pool, a collective wherein a few news outlets represent the entire press corps and take notes on the president’s whereabouts and activities and distribute reporting for all to use.

Traveling with Trump on Air Force One is a “privilege, not a right,” the White House said after barring Politico from a flight. The judge’s order did not mention Air Force One or the press pool.

Theodore J. Boutrous Jr., an attorney representing CNN, MS NOW and Politico, said in a statement that the plaintiffs were “grateful” for the decision.

“When the President issued his ‘ban on the free press,’ he blatantly and explicitly violated due process and the First Amendment,” Boutrous wrote. “Since then, the President has repeatedly, candidly, and consistently admitted in public that he banned our clients from the White House to punish reporting he doesn’t like and to try to force journalists to cover him in ways he prefers. … The Court was right to enjoin the White House from enforcing this ‘unconstitutional ban on the free press’ for the foreseeable future.”

The White House in a statement Wednesday morning called the ruling “misguided” and said it plans to appeal.

In his opinion, Kelly took particular issue with the government’s claim that the bans were necessary for national security, which he called a “post-hoc justification” for the move.

“It is not hard to conclude that President Trump likely banned Plaintiffs from the White House because he believes that their reporting is generally inaccurate and biased against him,” Kelly wrote.

He determined that the plaintiffs were likely to succeed in their First Amendment arguments that the bans constitute viewpoint discrimination and that they are retaliatory in nature.