Court Issues Preliminary Injunction Requiring CNN, MS NOW, and Politico to Be Readmitted to White House Briefings
Reason · RC · trust 49/100
"[T]he Court is 'not required to exhibit a naiveté from which ordinary citizens are free.'"
From Judge Timothy Kelly (D.D.C.) today in CNN, Inc. v. Trump :
On September 18, 2026, President Trump posted on social media that he was "proud to announce that, effective immediately," he was "banning" CNN, MS NOW, and POLITICO "from the White House." And sure enough, when reporters from those news organizations who hold "hard passes" allowing them to work there showed up the next day, they were denied entry. So Plaintiffs—these three news outlets and three individual hard pass holders who work for them—promptly sued the President and several Executive Branch officials, alleging that Defendants were violating their rights under the Fifth and First Amendments. They also moved for a temporary restraining order restoring their hard passes, which the Court granted. The Court found, under Sherrill v. Knight , 569 F.2d 124, 130–31 (D.C. Cir. 1977) and subsequent precedent, that Plaintiffs were likely to succeed on their claims that their hard passes were revoked without due process required under the Fifth Amendment, were likely to suffer irreparable harm without interim relief, and that the balance of the equities and the public interest tilted in their favor.
Now before the Court is Plaintiffs' motion for a preliminary injunction. The Court will grant that motion as well, finding that Plaintiffs are likely to succeed not only on their due process claim, but also on their two First Amendment claims. 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. That said, for the reasons explained below, the Court will extend the relief it already ordered, which will continue to preserve the status quo while this case proceeds.
Unlike the decision granting the temporary restraining order, which was based only on plaintiffs' Due Process Clause rights, this decision also rules in favor of plaintiffs on First Amendment grounds. An excerpt from the court's conclusion that the Administration likely unconstitutionally retaliated against plaintiffs based on their speech:
"[T]he First Amendment prohibits government officials from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech." The government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech." And even "ordinarily permissible exercise[s] of discretion may become a constitutional deprivation if performed in retaliation for the exercise of a First Amendment right." ...
[I]t is likely that President Trump's revocation of Plaintiffs' hard passes is the sort of action that would deter a reasonable reporter or news organization from publishing stories to which he objects. The revocation of Plaintiffs' hard passes matters a lot as to how, whether, and to what extent they can do their jobs. As Plaintiffs attest, a hard pass is crucial to covering the White House because it allows reporters "immediate, unescorted access to the areas of the White House complex designated for the press." Without hard passes, Plaintiffs would miss the newsworthy events that often happen at the White House with "little or no notice." Indeed, the effect on Plaintiffs' ability to do their jobs is so significant that in Sherrill and Karem [the key D.C. Circuit precedents as to hard passes and the Due Process Clause] the D.C. Circuit characterized the loss of a hard pass without adequate process as implicating a separate constitutional interest. And if a one-month suspension from the White House grounds is "an eon in today's news business," then it is likely that the open-ended ban here would chill a reporter's work.
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. After ex-plaining that he excluded Plaintiffs from the White House because they "purposely write negative news ... to try and diminish the Republicans and a Republican administration," President Trump remarked that he is prepared to take "the ban ... as far as you can," but that he would "love it" if they "could straighten themselves out." ...
Defendants also rely on an out-of-circuit case to argue that President Trump's decision to revoke Plaintiffs' hard passes and ban them from the White House grounds is insufficiently chilling to meet the second element of retaliation. In Baltimore Sun Co. v. Ehrlich (4th Cir. 2006), Maryland's governor prohibited anyone in that state's executive branch from speaking to a reporter and a columnist at a specific newspaper because his press office felt "that currently both are failing to objectively report on any issue dealing with [his] Administration." The Fourth Circuit found the directive at issue—which "select[ed] among reporters when granting interviews or providing access to nonpublic information"—"a per-vasive feature of journalism" and "so commonplace" that to allow a retaliation claim to proceed would "plant the seed of a constitutional case in virtually every interchange." ...
When President Trump first declared that he was "banning" Plaintiffs from the White House, he said he was doing so "as a result of their constant 'reporting' of 'FAKE NEWS.'" He wrote that Plaintiffs "shouldn't be able to constantly write or report FICTION and LIES when they're covering the President of the United States, the Trump Administration, or the United States of America." The next day, when asked about whether there was any "particular reason" for the ban, he responded: "No ... it's really…
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