Media outlets' White House access extended as judge weighs ruling

WASHINGTON – A federal judge briefly extended White House access Thursday for three media outlets that were previously banned by President Donald Trump, as the judge considers whether to guarantee their access in the months ahead.

Trump announced Sept. 18 that CNN, MS NOW and Politico, which he described as “fake news,” would be banned from the White House complex. They sued over the ban within days, arguing that it violated their constitutional rights to speak freely and to receive due process before losing White House access.

The Trump administration has argued in court filings that access to the White House is a privilege, not a right, and that the targeted outlets pose national security risks due to their reporting on classified and sensitive information.

In a Sept. 24 ruling, U.S. District Judge Timothy Kelly – a Trump appointee – granted a temporary restraining order that required the administration to reinstate the press passes for two weeks. A court hearing on Thursday, Oct. 8, centered on whether Kelly would issue a longer-term order protecting the news outlets' White House access until he issues a final decision in the case.

Kelly announced at the hearing that he would extend his earlier ruling by two additional business days to give himself time to decide whether he will provide the news outlets with longer-term protection. He will make that decision by Tuesday, he said.

Judge says due process is 'probably the biggest hurdle'

Theodore J. Boutrous Jr., an attorney representing the news outlets, asserted that their case had only “gotten stronger” since Kelly issued the temporary order and pointed to Trump’s statements that, in his view, “unambiguously” tie the media ban to unconstitutional viewpoint discrimination instead of valid national security concerns. He referenced Trump’s Sept. 28 TIME Magazine interview in which the president said he “(doesn’t) think anybody should be forced to bear fake news” but did not invoke national security in discussing the ban. 

Kelly asked Boutrous whether an administration could be justified in revoking press access if, hypothetically, a news outlet published classified information proven to be harmful to the nation. Boutrous characterized such determinations as subjective and called it a “dangerous road to go down.” 

Justice Department attorney Michael Velchik, representing the Trump administration, began his remarks by calling the White House a “sacred place” and accusing the news outlets of “indefensible conduct, or at least conduct they’ve chosen not to defend.” 

Velchik argued that requiring reporters and news outlets to adhere to journalistic standards for fairness and accuracy is not unlawful viewpoint discrimination. Boutrous later said it would be “very dangerous” and “chilling” for a president to be an arbiter of those qualities. 

Kelly at one point said the news outlets’ due process claim was “probably the biggest hurdle” the administration must overcome. He did not appear convinced that the administration satisfied the legal requirements established through Karem v. Trump, a 2020 decision in which an appeals court ruled that the White House could not revoke journalists’ security credentials without providing fair notice of its required standards and what the penalties would be for violating them. 

Conor Fitzpatrick, chief supervising attorney for the Foundation for Individual Rights and Expression, who was present in the courtroom, told USA TODAY that Kelly, in his view, “rightly pressed” Velchik on the differences between Trump’s stated reasons for the ban and what the administration is arguing in court. 

He said Kelly “voiced very significant concerns” about the government’s arguments over the news outlets’ First and Fifth Amendment claims. 

“The government’s position that news coverage being unfavorable to them or false somehow falls outside of viewpoint discrimination has no support in existing case law and no support in the history and tradition of the First Amendment,” he said. 

In the days since the White House was forced to readmit the news outlets into its complex, Trump has banned CNN and Politico from traveling on Air Force One.

An appeals court ruled in 2025 that Trump probably could restrict access to certain spaces, including Air Force One and the Oval Office, without violating the First Amendment. The ruling stemmed from the White House's effort to ban the Associated Press from specific areas early on in Trump's second term. The AP's lawsuit over that ban is ongoing.

In his earlier ruling suspending the ban for 14 days, Kelly wasn't persuaded by that argument. He wrote that evidence from before the news outlets sued suggested that Trump's true motivation wasn't a concern for national security.

This isn't the first time Kelly has addressed tensions between Trump and the media when it comes to White House access. In 2018, he ordered the White House to restore press credentials for then-CNN correspondent Jim Acosta after they were revoked over a contentious exchange between Trump and Acosta at a news conference.

 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.