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A federal judge late Tuesday extended a block on a Trump administration ban of press passes for three news organizations, which will allow them to continue to enter the White House grounds while a legal challenge to the ban plays out.
U.S. District Judge Timothy Kelly in a 26-page order rejected Department of Justice arguments that the revocation of passes for CNN, Politico and MS NOW was based on the administration’s concern over reporting that endangered national security.
“First, there is no evidence in the record that President (Donald) Trump made the decision to revoke Plaintiffs’ hard passes on national security grounds from the get-go, nor at any time has he directly stated that national security was the reason for his decision. When he announced the ban with his post on September 18, he did not mention national security,” Kelly wrote.
Kelly also said the news organizations were likely to succeed on their claim that the White House unlawfully retaliated against them for exercising their First Amendment rights. He noted that a previous court decision bars government officials from subjecting individuals to retaliatory actions after the fact for having engaged in speech protected by the amendment.
“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.
He said the news organizations were also likely to succeed in their argument that they were denied due process by the administration.
Kelly granted the news outlets’ request for a preliminary injunction, which Trump already has said the administration will appeal. It replaces a temporary restraining order, also granted by Kelly, that expired Tuesday.
The ruling comes a little over three weeks after Trump banned CNN, MS NOW and Politico. The president announced the measure via his social media platform on Sept.18, “a result of their constant ‘reporting’ FAKE NEWS!” he wrote.
The White House press office followed with letters Sept. 22 to the three outlets citing national security concerns and allegations of misinformation as reasons reporters’ press passes were revoked.
Trump’s order ousted 78 journalists from the three outlets, according to a court filing.
In a show of solidarity, major television networks that rotate distributing video coverage from the White House suspended video feeds over the next several days.
The three news outlets sued the White House in U.S. District Court for the District of Columbia on First Amendment grounds and alleged the ban caused irreparable harm to the organizations.
Kelly temporarily ordered the White House to restore press access on Sept. 24 to the three banned outlets.
Kelly, who appeared skeptical during an initial hearing, wrote in the eight-page temporary order that the media outlets were likely to succeed in the case, and that the journalists were denied their due process rights before their passes were confiscated.
Michael Velchik, senior counsel in the civil division of the Justice Department, had argued on Sept. 23 that access to the White House “is a privilege not a right.”
Kelly was nominated by Trump during his first term and confirmed by the Senate in September 2017 by a vote of 94-2.
In response to a request for comment, the White House confirmed in a background statement not attributed to an individual that the decision will be appealed.
“The Fake News has no place demanding a spot in the President’s Oval Office. The lies they smear are a disservice to the American public and tear at the very fabric of our Democracy. They’re completely capable of reporting from directly outside. We intend to appeal this misguided decision,” the statement said.
Theodore J. Boutrous Jr., the lawyer for the news outlets, said they were grateful for Kelly’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. “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 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 also noted in his ruling that Trump could be right in his concerns about the nature of reporting on him, and that there were instances in which a national security argument would succeed.
“Still, 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,” he said.
