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WASHINGTON (AP) — A judge heard arguments Wednesday but did not rule from the bench in a case on President Donald Trump’s ban of three news outlets from White House grounds.
The hearing marked the latest development in an extraordinary showdown between Trump and media outlets whose coverage he dislikes. Trump banned CNN, MS NOW and Politico beginning Friday, assailing what he called “fake news.” More recently the president has said negative coverage was dangerous for the country. The outlets argued they were singled out because of the content of their coverage — in other words, viewpoint discrimination and called the ban a “blatant violation” of the First Amendment.
U.S. District Judge Timothy Kelly — whom Trump nominated in 2017 and who ordered a CNN journalist’s access restored in a similar case in 2018 — didn’t immediately rule on the news outlets’ request for a restraining order. It was unclear when he would issue a decision.
He opened by reminding both sides that he’s required to apply case precedent.
The rulings in two prior cases over press access — including one that went to the U.S. Supreme Court — made clear that journalists were entitled to an opportunity to be heard before they have their press passes revoked.
Justice Department attorney Michael Velchik has argued that the rulings in the earlier cases were wrong.
“Maybe they were, maybe they weren’t, but currently as a district judge I have to apply them,” Kelly said.
Arguments began with Theodore Boutrous Jr., attorney for the outlets, calling the ban an “unprecedented, unreasonable punishment” and saying there was “not a semblance of due process.”
Velchik told the court that “access to the White House is a privilege, not a right.”
“The president should be able to take immediate action to protect national security,” he added.
The administration has doubled down on its contention that it has the right to decide who can set foot in the White House.
The Trump administration outlined ‘reporting incidents’ of each news outlet
In filing late Tuesday, administration lawyers argued that the ban does not violate the First Amendment, which guarantees the right to a free press. It contended that the outlets, in their reporting, violated “standards of professionalism and decorum expected of those given access to the White House complex, including by trafficking in verifiable falsehoods about national security and other issues and publishing sensitive or classified information.”
The administration went on to detail letters that were sent to each outlet that identified “a non-exhaustive list of reporting incidents, including those that have threatened national security and spread falsehoods.”
The “reporting incidents” cited in the filing included: CNN reporting on “‘top-secret’ construction details related to the East Wing bunker”; MS NOW reporting “on an alleged leak investigation”; and Politico publishing “a document detailing funding for the White House ballroom containing intricate descriptions of how the Secret Service would invest in security improvements.”
Further examples were given in individual letters. Politico’s letter detailed six incidents of reporting, including in June citing a “senior administration official … granted anonymity” predicting whether a preliminary deal would end the conflict with Iran.
That item appeared to reference a background briefing set up by the White House, where an official briefed reporters on condition of anonymity under ground rules set by the White House itself. Several other outlets also reported the official’s remarks.
The news outlets argue that the ban blatantly violates the First Amendment
Trump began to emphasize the national security argument Tuesday, when he said negative coverage was dangerous for the country.
“I think we have a right to clean out fake news,” he told reporters at the United Nations, defending the ban, which was suddenly announced Friday. The next day, journalists for the three outlets arrived at work to find their entry badges disabled.
The ban prompted other media outlets to take action in solidarity. The five-network U.S. network press pool — a rotating cast of news outlets that covers the president, and to which CNN belongs — decided to suspend coverage of Trump events until further notice. The Associated Press joined a group of organizations that refrained from publishing photos of the president Monday. On Wednesday, the network pool was again missing from a daily White House press schedule.
The ban and subsequent lawsuit are part of a long-running conflict between the president — especially in his second term — and media outlets he finds unfavorable. Trump has responded in the courtroom, or with regulatory action. He’s also lashed out at individual reporters in personal terms.
Other news outlets file a brief to the court in support of colleagues
An amicus brief was filed by other news groups Wednesday, urging the court to immediately restore the three outlets’ White House access.
The brief — filed by the Reporters Committee for Freedom of the Press, the White House Correspondents’ Association and 49 media outlets and industry groups, including The Associated Press, The New York Times and Reuters — says “the targeted expulsion of news media from White House grounds injures the public interest” and that “unassailable First Amendment law makes any viewpoint-based decision to bar reporters from a nonpublic forum constitutionally repugnant.”
The proceedings are historic, said Katie Fallow, deputy litigation director at the Knight First Amendment Institute at Columbia University.
“No president has taken this explicit of a step” to ban entire news outlets because he doesn’t like their reporting, she said. “There have been various presidents throughout history who have grumbled about the press or threatened to take more major steps, but really there was nothing at this level before Trump.”
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Noveck reported from New York. Associated Press journalist Laurie Kellman contributed from London.
Jocelyn Noveck And Michael Kunzelman, The Associated Press
