The Trump Administration is rushing to prepare for a fight that few knew was coming after President Donald Trump banned Politico, CNN, and MS NOW from the White House for spreading “fake news.” I understand the President had been planning this step for over a year, but he announced it with little notice to his staff. What will follow could be one of the most consequential fights over press rights in decades… and the odds are against the President.
I have previously expressed my disappointment with the ban. While I have been one of the most vocal critics of biased coverage on these outlets, I view this as an ill-considered, damaging move. Putting aside the constitutional concerns, it is a policy that undermines core values and traditions related to the free press. As I discussed in my Hill column this weekend, presidents since George Washington have denounced media bias, but they have refrained from this type of action.
During the Biden Administration, the President would regularly attack Fox News and reporters such as Peter Doocy. However, they were not banned over their negative coverage. The United States laid the foundation for free speech and the free press in the First Amendment. It remains the great champion of press freedom around the world. It is difficult to maintain that position when media outlets are barred because of the content of their coverage.
On the legal side, the ban runs against the grain of existing precedent. In 1977, the United States Court of Appeals for the District of Columbia considered a ban on Robert Sherrill, a reporter for The Nation. In Sherrill v. Knight, the court ruled that the First Amendment limited the right of the White House to arbitrarily deny a press pass to a journalist. Since that time, viewpoint discrimination has long been viewed as not a reasonable basis for exclusion.
The D.C. Circuit held “White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the First Amendment guarantee of freedom of the press . . . requires that this access not be denied arbitrarily or for less than compelling reasons.”
The White House appears ready to seek a possible reversal of Sherrill either before the D.C. Circuit or the Supreme Court. It is a risk since a countervailing decision could cement and even amplify the Sherrill standard in a Supreme Court opinion.
The White House is not without good-faith arguments to make in the coming litigation. The White House is not a public forum, and it can deny access for reasons such as security.
Last year, the D.C. Circuit ruled for the White House in Ateba v. Leavitt. Journalist Simon Ateba challenged White House credentialing requirements after he was denied a permanent “hard pass.” The appeals court found that, as a nonpublic forum, such a denial was permissible.
However, the Court in Ateba rejected the notion of “unbridled discretion” in such denials. Citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985), the Court still reaffirmed that “[a]s a nonpublic forum, access to the White House Press Area “can be restricted as long as the restrictions are” viewpoint neutral and reasonable.”
Likewise, after the Trump White House denied access to CNN correspondent Jim Acosta, a federal judge (and Trump appointee) ordered the White House to restore the press pass due to the lack of due process and notice.
The D.C. Circuit also considered such denials in the case involving the Associated Press when the Administration barred access to Air Force One and the Oval Office after AP refused to change references to the Gulf of Mexico to Gulf of America.
In Associated Press v. Budowich, the D.C. Circuit noted:
In Sherrill, we held that the “White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the [F]irst [A]mendment guarantee of freedom of the press” attached, requiring that “access not be denied arbitrarily or for less than compelling reasons.” 569 F.2d at 129 (cleaned up).
AP initially prevailed before District Judge Trevor McFadden, also a Trump appointee, who ruled that the ban probably violated the First Amendment. He wrote that “under the First Amendment, if the Government opens its doors to some journalists – be it to the Oval Office, the East Room, or elsewhere – it cannot then shut those doors to other journalists because of their viewpoints.”
A divided panel of the D.C. Circuit later lifted the injunction by stressing that Air Force One and the Oval Office are very specific locations subject to greater discretion and controls. However, the court stressed that Sherrill is still good law and bars arbitrary denials. The litigation is still ongoing.
In this case, the White House gave no procedural protections or any reason other than the President’s view that these outlets were publishing “fake news.” That creates a clean and straightforward record. The White House will have to argue that it can deny access without notice, procedural protections, and based entirely on the content of coverage. In other words, it will have to argue that it can engage in viewpoint discrimination.
Once again, opposing this policy is not to defend the underlying coverage. Many of us have raised the same objections to the coverage. However, this would create a dangerous and unfettered power. Future presidents could use it to bar conservative media and outlets that expose government abuse or waste. Whatever the outcome of this litigation, it is not a policy that advances our core values and traditions.
Jonathan Turley is a law professor who teaches a class on the Constitution and the Supreme Court and is the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
Does this change the legal argument? The WH should simply provide a room with live video viewing & the ability to be recognized (or not) to ask a question like any other reporter in the live room of the press conference.
Perhaps the WH could find a nice room in a nearby hotel for the homeless or immigrants. This proposal does not exclude access although it may lack courtesy.
Is there a difference between viewpoint discrimination and outright lies that are factually incorrect? The media loves to cite unnamed sources as it spews its lies. U.S. Border Patrol agents did not whip or strike migrants with their reins during the September 2021 encounter in Del Rio, yet the media continues to suggest otherwise. While the First Amendment is the first for a reason, lies masked as differing opinions cannot go unchecked either.
Facts are facts. Opinion is opinion. The outlets named peddle the latter as the former.
Gotta say this one is TOO FAR and TOO STUPID. Even Biden hated certain press orgs and called them names but realized the UGLY PRESS has a right to speak and cover you! Probably end up at SCOTUS eventually but in the mean time DJT is enjoying another S-Show watching the press have convulsions over this. By next week a Black Robe Illuminati will step into the steaming pile and rule he cannot stop them, then we have the immediate appeal to leave the ‘ban’ in place while it works through the courts. The appeals court will deny his request and he will emergency the case to SCOTUS who will also deny then the flip-out on ACB and Roberts, etc. Just Nutty.
Eloquent, as always, Prof. Turley… however… where does it even imply let alone outright say in the Constitution that restricted access to Government Buildings is censorship? I believe the fact that these News Outlets IGNORE the news and create fantasy stories instead is still going to continue… ergo it can be argued there is no censorship… I believe the President is making a point.. thus perhaps a lot of ordinary Americans who listen to these ‘outlets’ will finally start to question what they are being fed and by whom. A chess move by POTUS to call attention to a serious situation.. before access credentials are eventually restored.
Trump’s move may not be politically expedient or well advised. However, an honest, literal reading of the First Amendment clearly forbids CONGRESS to enact legislation that infringes free speech. There is NOTHING in that Amendment regulating the conduct of the Executive Branch. An honest decision on this subject by SCOTUS (if it gets that far) would reflect that, and overturn those previous rulings that do not. Possible some other statutory basis can be found to prevent the President from admitting and denying WH access to members of the press on an arbitrary basis, but the First Amendment clearly does not cover that.
I voted for Trump 3 times and would certainly vote for him again given the nature of Democratic alternatives but he makes mistakes and this is one of them. You don’t ban journalists. The Founders included protection for journalists in the Constitution because free countries need journalists. OK the left wing media rather much sucks but that does not mean you ban them. This is the same principle as is the case with freedom of speech. Sometimes you have to listen to those with whom you disagree, perhaps virulently. And above all, you fight bad ideas with better ideas, not with banning people which is the kind of thing one expects from the ‘wanna be’ tyrants on the left.
“The Founders included protection for journalists in the Constitution ”
The Constitution does not say or mean whatever you would like it to. Maybe you should read the document again (assuming you have ever done so). It says:
“CONGRESS shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances”
There is nothing at all there regulating the conduct of the Executive Branch regarding who it must admit to the White House.
When I was a kid playing sandlot ball in center field for a neighborhood team, one of the parents told me something Trump often reminds me about. He said, “Kid, if you want to hit home plate on a bounce or two, just aim for that big oak tree about 25 feet behind the plate.” I followed that advice and was amazed at how quickly my throws from the outfield improved.
Trump often aims for that big tree, hoping to hit where he really wants the ball to land. He probably knows CNN, MSNOW, and Politico will eventually be readmitted to the WH Press Corps, but in the interim he will have generated a lot of publicity about his claim that this trio manufactures fake news. Had he just complained about it, no one would have heard, and no one would have cared. He aimed for the big oak tree, knowing what he needed to do to reach the plate. Pretty clever!
JJC:
Nice and original contribution from you.
When I was a kid sitting in my dad’s lap while he watched “The Twentieth Century,” I remember being quite confused seeing a man in military uniform talking about the “European Theater,” but following that with old documentary war scenes. Of course, theater to me meant clowns and a lot of dancing around in leotards. I see the Big Stage now.
If Trump is unhappy about his coverage and wants to control the narrative, the best way would be if kept his mouth shut for ten minutes, stopped tweeting, stopped doing press conferences, and decided which news outlets he wanted to grant interviews to. Easy peezy. More or less, how the Left controlled Biden. Obviously, he was an Alzheimer’s patent while in office, his team and the whole world knew this, so they tightly controlled when and where he spoke. Trump’s problem is that he thinks that if he speaks to the fake news outlets long enough, he’s going to win them over to his side. He still hasn’t figured out that that isn’t going to happen. They hate him, and they always will.
Oh please, Trump fireside chats? Once per year SOU. Press conferences 2×per year. Blah blah
The Rapid Response teams posting of 45+ fake stories that these outlets promoted is enough for me. To me, this isn’t a “free speech” or accessibility issue. Everyone can agree Trump is the most accessible president ever and often talks 20+ minutes too long
I guess I’m with Professor Turley on this one. The Whitehouse press room belongs to the people, not to the President, but real security concerns are a reasonable exception. Nobody wants Baghdad Bob getting a press badge, especially if he’s at war with us.
All that being said, the Left is CELEBRATING the murders of Charlie Kirk and Brian Thompson. They also talk about murdering the President. The minute any media organization starts to participate in or lend legitimacy to such barbarism, they are a domestic enemy and should be excluded from the Whitehouse totally and have their licenses revoked, as well. Cross that line ABC, I dare you.
I miss Roone Arledge. When he was running ABC News, it was the best American journalism ever got.
“The Whitehouse press room belongs to the people”
ALL property controlled by the Federal government ultimately belongs to the People. So what? Is the Executive Branch required to admit reporters to foreign policy sessions formulating strategy? The First Amendment clearly regulates the conduct of CONGRESS and ONLY CONGRESS with respect to Free Speech (among other constraints on the Legislature). If we begin applying parts of the Constitution to branches, people, and functions that clearly were not originally intended, we might as well use it for toilet paper. Which would no doubt please the Left no end, but those of us who value the structure of the Federal government as laid down by the Founders, subject to ratified Amendments, should avoid that temptation at all costs.
If Pres. Trump held himself up to self-examination, and were able to admit things going sideways, the press wouldn’t have to do it for him. Also, if he communicated in a disciplined manner using the WH Communications team (instead of TruthSocial), the press would have much less ammo to attack with. He seems to enjoy trolling the opposition, but can’t take the same treatment he dishes out. He’s his own worst enemy when it comes to media coverage.
What ever made him think he could get away with that???
https://gordythomas.wordpress.com/wp-content/uploads/2026/09/hskcj7pb0aanu6h4270790986761797126.jpg
Perhaps we will get a new precedent, based on the argument that a propaganda organ, disguised as a news organization, has no First Amendment protection, and that protecting the full range of views requires denial of access to those who skew information in a direction intended to produce a certain political outcome. This could produce an interesting discovery process, with CNN having to disclose all its ties and nepotism with the Democrat Party. I would look forward to that.
How would Fox News survive if they couldn’t skew information?
The lawyers at Fox would hold mandatory training sessions for execs, producers, video editors and on-air talent about how to steer clear of lawsuits.
Same thing they did after conceding the Dominion Voting Systems case ($780,000,000 settlement). I like your idea. If deceitful inforwarriors faced immediate discovery processes (subpoenas and compelled depositions under oath), they would simply veer toward verifiable truth in reporting.
We need Public Frauds lawsuits with fast due process.
How does ABC survive professional race grifter Sunny Hostin?
She stated on The View that the Wells case was racially motivated by his white friends.
Her deep seated need to be the victim,espeically for racist grievances, may lead her to refuse to apologize to the white teens.
In such a case, discovery should be fun.
I also am amused at the networks’ reliance on their own network-conducted polls to attempt to portray and shape American sentiment, e.g.,, Kristen Welker saying, “A new poll [[ a new NBC poll ]] shows Trump at his lowest approval rating since……”
Of course, this follows several weeks of selective reporting of the most negative opinions from selected members of the public on stories that they know nothing about -except what media told them. And who are the poll’s respondents? Those who watch and follow NBC or ABC or CNN news. Circle those wagons!