No ruling after high-stakes hearing over Trump media ban

WASHINGTON – A federal judge did not issue a ruling after a high-stakes hearing on whether to quickly halt President Donald Trump's ban of several news outlets from the White House, though he expressed concerns that the president's move may violate the Constitution.

U.S. District Judge Timothy Kelly, a Trump appointee, listened to lawyers' arguments Sept. 23 as he decides whether to grant a request from CNN, MS NOW and Politico for a temporary restraining order that would reinstate their reporters' White House press passes. Kelly appeared open to issuing that order, noting at one point that if he does reinstate the passes, he wouldn't necessarily be preventing Trump from blocking the reporters' entrance to some smaller parts of the White House.

Kelly also said past court decisions have established that journalists have the right to certain procedures before their White House press passes are pulled. The judge closed the afternoon hearing by saying he will try to issue a decision as soon as he can.

Trump announced on Sept. 18 that the three outlets would no longer be able to report from the White House, and that bans for other outlets were also coming. He didn't point to specific coverage that prompted the decision, but said later that day that he was frustrated by “cumulative stories over the last few years” from what he described as the “fake news.”

Reporters from each news outlet were denied entry to the complex the next day. While the ban blocks the reporters' White House access, it doesn't prevent them from continuing to report on the president.

The news outlets sued the administration in the U.S. District Court for the District of Columbia on Sept. 21, calling the ban a "direct assault on the First Amendment" and a "blatant violation of our most fundamental constitutional principles." They asked for the temporary restraining order to restore the White House press passes while litigation continues.

USA TODAY is one of dozens of news organizations that are seeking to jointly file a brief in the case supporting the media outlets' effort to get a temporary order.

Trump responded to the lawsuit in a legal filing Sept. 22, saying that "access to the White House is a privilege—not a right."

'Very essence of the First Amendment'

Kelly previously ordered the White House to restore then-CNN reporter Jim Acosta’s press badge in 2018 after it was revoked following a contentious exchange with Trump at a news conference.

The judge referenced that order at the start of the Sept. 23 hearing, saying he was surprised as he dug into the law during that case to learn that members of the media have the right to due process before their White House press passes are seized.

Theodore J. Boutrous, Jr., a lawyer for the news outlets, said the case gets at the “very essence of the First Amendment.”

While the administration has raised national security concerns in court as a justification for the ban, Boutrous characterized that as a pretense, arguing Trump's initial statement didn't reference any such concerns.

Kelly at one point posed a hypothetical scenario to Boutrous, asking whether the White House could revoke a press pass if there was direct evidence that the reporter gave classified information to a foreign enemy. That would be a “totally different circumstance” from what’s at issue in this case, Boutrous responded.

Michael Kenneth Velchik, a lawyer who was defending the ban, argued at the hearing that the president wasn't discriminating against the targeted media outlets based on their viewpoints, which would raise First Amendment concerns. Trump, Velchik said, criticizes everyone and has criticized other media organizations "even more" than the ones banned, for example by saying, "ABC is the worst."

The reporters don't have a "get our of jail free card" just because the president has criticized them at some point, Velchik said.

What are the news outlets arguing?  

The extent to which First Amendment rights apply in a certain government-owned space depends on what kind of forum it is. Traditional public forums, including public parks and sidewalks, have the greatest First Amendment protection. In a nonpublic forum, such as an airport terminal, the government can impose speech restrictions as long as they are reasonable and viewpoint-neutral. 

The news outlets’ federal lawsuit argues in part that the White House spaces they were banned from are nonpublic forums, making the restrictions "flatly unconstitutional" under the First Amendment's speech protections. They also say Trump violated their due process rights under the Fifth Amendment by not providing clear standards and a chance to be heard before denying them access.

Trump acknowledged in his own court filing that the Washington federal appeals court, which issues rulings that are binding for Judge Kelly's court, ruled in 1977 that some areas of the White House grounds constitute a nonpublic forum.

However, Trump told Kelly "that decision is wrong and should be overruled" and that, regardless, he can still ban outlets to enforce journalism standards and protect national security information.

BrieAnna Frank's role covering First Amendment issues at USA TODAY is made possible by a collaboration among Freedom Forum, Journalism Funding Partners and the USA TODAY Network. Freedom Forum does not provide editorial input. Reach BrieAnna at [email protected] and @brieannafrank on X and Bluesky.