MS NOW White House reporter Akayla Gardner reported on Saturday near the White House complex after being denied entry following President Trump’s ban on CNN, MS NOW and Politico.
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Reporters try to hold President Trump — like any president — and his administration accountable.
Now three major U.S. news outlets are asking a federal judge — a Trump appointee at that — to hold the president in check for what they say is an egregious violation of their First Amendment rights simply because he doesn’t like how they cover him.
The Justice Department intends to argue that the three media outlets are “trafficking in verifiable falsehoods about national security and other issues, and publishing sensitive or classified information,” according to a submission to the court late Tuesday.
CNN, MS NOW (formerly MSNBC) and Politico sued President Trump after he made good on his threat to bar them from covering official events. Trump told White House reporters on Friday that he was fed up after what he called two years of unfair and negative coverage.
“There’s something wrong with a country that can allow people to write purposefully negative things,” Trump told reporters Friday. “Now, if they want to write them, that’s fine, but I don’t have to let them into my — into the people’s house.”
The news outlets accuse Trump of violating not only their right to freedom of speech under the First Amendment, but also to due process under the Fifth. They are asking the court to restore their access to the White House.
“The President has been explicit that this ban is intended to punish reporting he doesn’t like and to intimidate journalists and news organizations covering him and his administration,” the lead attorney for the news outlets, Theodore J. Boutrous of Gibson Dunn, said in a statement. “This ban on the free press harms the American people, who are entitled to rigorous, fact-based coverage of the President of the United States.”
Boutrous represented NPR and three Colorado public radio stations on similar grounds: a federal judge found a Trump executive order that banned federal agencies from distributing federal funds to public media outlets because he didn’t like NPR’s coverage to be unconstitutional. (Trump still succeeded in convincing the Republican-led Congress to pull back nearly all federal funding for public media.)
Trump has already signalled that he knows the judge may well rule against him: U.S. District Court Judge Timothy Kelly held in favor of Jim Acosta, then with CNN, in 2018 when Trump aides stripped him of his White House permanent credentials on similar grounds.
“Almost without question and, as usual, we’ll go for appeal because Fake News people and publications that only write negatively, and who violate our National Security by writing false and defamatory stories with unknown ‘sources, shouldn’t be allowed access to the most important Office anywhere in the World,” Trump’s account on Truth Social posted Monday afternoon.
White House debuts an alternative
Trump famously loves the spotlight and basks in the glow of TV cameras. After all, he’s a former reality TV star.
But barring CNN in particular posed a dilemma for him Monday. CNN was set to be the pool TV network, meaning it would film the president as he went about his official duties and distribute that footage to other major television networks. None stepped in to fill CNN’s place, in a show of solidarity. And many of CNN’s competitors are not airing video of the president from other sources. (NPR, which is a member of the White House radio pool, has also declined to broadcast audio of Trump.)
That left Trump cutting a ribbon on a new White House helipad on Monday in a video released by the administration. There was just one problem: the whirling helicopter parked in the background drowned out whatever Trump was saying. The audio was inaudible.
The White House had tried to circumvent the press pool by debuting its own streamer on YouTube, called Trump TV. While Trump is having a busy week at the U.N. General Assembly in New York, Trump TV features a collection of past press conferences and official events (all with high-quality audio).
Reporters from CNN, MS NOW and Politico are following Trump as he travels through New York. On Tuesday at the United Nations, CNN’s Kaitlin Collins stood with other journalists and shouted a question about the unpopularity of the war in Iran.
Trump ignored the question, instead telling her, “You should not be here covering me.” She pointed out that the United Nations had given her press credentials. Not all locations are under his — or the federal government’s — control. The court case will determine to what extent the president can dictate terms of reporting on him from the White House itself.
News outlets want access restored
Previous judicial rulings appear to offer ballast to CNN, MSNOW and Politico’s legal argument.
As Trump noted, there is no constitutional or legal right that requires the president to let any particular journalist — or anyone at all — to report on federal matters from the White House grounds. The administration has argued in public statements that reporting from White House grounds is a privilege not a right.
But once a journalist is given credentials to report from the White House, they cannot be prevented from returning simply because the administration does not like their coverage. That would be “viewpoint discrimination” that the courts have held violate their free speech rights under the First Amendment.
Under a 1977 U.S. Court of Appeals ruling that still holds today, reporters cannot be barred from the White House or denied a permanent White House press pass without a clear explanation from the Secret Service that incorporates due process.
Trump barred the Associated Press from the White House last year, after he deemed the Gulf of Mexico should be called the Gulf of America, but the news wire declined to follow suit. The AP sued under similar grounds as the three news outlets’ lawsuit. That case is ongoing.
