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.”
“. . . Trump banned [reporters from] Politico, CNN, and MS NOW . . .”
Where are those “reporters” you speak of?
They are extensions of editorial boards — propagandists in the sheep’s clothing of “journalists.” If you are so nonobjective that you are incompetent at your job, you deserve to be banned. Just as their brethren should be banned from academia.
BTW, where were the “stalwarts of 1A” when the New York Post, Trump, and countless others were (at the behest of government agents) banned from Twitter, Facebook, et al.?
Of course Fox, National Review, Just the News, The Federalist etc. are wholly unbiased?
Oh, what does this latest banning have to do with Twitter and facebook?
Prof. Turley, please post your objections and cautionary warnings from when Obama and Biden pulled the credentials of conservative outlets. All the sleeve tearing over this and crickets from the left when they were doing it. What Trump is doing is simply following their precedent. So the precedent was already there.
Why insert Obama in this, it was Trump who made the decision two days ago. Not Obama.
Bringing up Obama (and BIden) is fair game when one is comparing the treatment of one president compared to another president for virtually the same form of conduct.
Fair game? By what rules?
The WH is not preventing their “freedom of the press” in any way, shape or form. They are still free to report, and say whatever they want, truthful or otherwise. Realistically, they are ‘commentary’ outlets, not news. They can give their commentary and opinions without access to the WH, not to mention, there is a finite amount of room, and seats in the WH, AF1 venues. The WH is simply giving other outlets the opportunity to excel. Get over yourselves MSM cable pontificators.
There is a little thing called historical presidential precedent.
You sound like a petulant child. Typical MAGA.
I am not a fan of President Trump, but I believe that he is well within his rights to ban these news organizations. It seems to me that a reversal of Sherill is not required for a court to find that viewpoint discrimination prohibits the blocking of reasonable opposing viewpoints as opposed to contentious speech that approaches the the fighting-words standard.
The news media have clearly elevated their second-term hostility to this president — perhaps for justifiable reasons — to a level of acrimony that is not widely approved by the general public nor consistent with even the lower standards of decorum associated with Trump. The 1st Amendment simply does not require public officials to endure any type of insult or abuse from a member of the press, nor does it prevent public officials from expressing their own contempt or anger back. Both of those actions clearly impede the purpose of communicating with the press and speaking to the general public.
Decorum issues notwithstanding, Prof. Turley is correct that Trump’s action crosses the grain of presidential tradition associated with constitutional protections of freedom of the press and freedom. But the time for doing so may have arrived.
The Framers never contemplated television or the internet. Until CNN and Politico acquire actual presses, I don’t see how freedom of the press applies.
Contemplate? You sure?
Contemplated you say. That’s because they didn’t exist. Better check a dictionary the next time you comment using big words.
Reasons Trump Fails
Trump cons followers into thinking he’s a great president. ‘But the liberal media is biased against him’.
So presumably millions of people hate Donald Trump based on liberal media.
If offered fair news, they’d see Trump as the great leader he is.
This analysis, however, totally disregards Trump’s appearance and behavior.
Trump is 80 years old with orange make-up and yellow hair. How many seniors look like that?
Trump would look more sane with naturally white or gray hair. And by losing 30 pounds, Trump could be more photogenic.
Instead Trump cuts a somewhat portly figure that’s visible on camera. A tall, flabby senior with orange make-up and yellow hair.
It’s a bad image. Especially when Trump’s mouth is constantly running with insults for everyone.
What’s more, Trump has no command of facts. And one can see that for themselves right on Truth Social.
It takes no liberal bias to observe that Trump rarely knows what he’s talking about.
Trump may not have the attention span to follow complex issues. And that is certainly evident in his handling of this war.
Trump checked out on this war several months ago.
So this ‘liberal bias’ con is the lamest of excuses.
D J Trump IS the GREATEST POTUS I have seen since I wasted my 1st vote on the Peanut Farming Idiot that started givimg away my Ancestral home! The dumocraps SUCK! They are totally useless scum and all need to be extinguished from MY USA!
So he’s the greatest? I bet you’re surprised that your SUV’s gas tank now how’s $200 of gas when before Trump it held $120. I bet you’re surprised when you’re told that “Iran is tRUMP’s Vietnam.” It is btw. I bet you’re surprised when your grocery kart now holds $350 of groceries when before tRUMP it held $200 of groceries.
Presidential popularity and gas prices are mutually exclusive. Trump doesn’t set the price of oil nor can he dictate corporation’s actions. Do you have a basic knowledge of economics? Obviously not.
“… 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. …” – JT
I view this move as a Defense of the Oval Office, The Presidency, the Executive Branch of the United States Constitution. Seem that “The Presidency”, regardless of whom holds the position has become the prime-target for the Forth Estate.
The ‘Office of The Presidency’ needs protection in that, which is that protection of our Constitution which the Presidency is founded upon.
All three Constitutional branches need the sanctity of protection, if the Union is to survive.
Someone post the song–> what a wonderful world. 😏
“I understand the President had been planning this step for over a year”
It took a -year- to plan this? No wonder the Reflecting pool and Iran attack and most other changes have been disasters. It took a year manage to get up his courage to deal with what appears to be the inner demon of incredible self-doubt, planted by a father who said worth is only what’s in the bank, not in the heart, mind, or soul?
No wonder he follows brutal dictators around like a little puppy, saluting them and wishing he was like them.
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#. Does the admin have a stack of litigated cases of fake news? If these groups have been officially discredited DJT may prevail. If not he solidifies freedom of press when Republicans are silenced within another admin. He can’t lose either way. Imo
Peace to all ☺
Now that was really funny Professor: the US as the champion of press freedom in the world.
“The ethics of a … responsible journalist is to put his or her biases, his or her prejudices aside in an attempt to be really fair to all sides at all times, and my pride is that I think I did that fairly well during my years.” — Walter Cronkite(1916-2009)
We spent 4 years prior to this administration with barely a single communication to the voting public. In other words, virtually all free press was censured.
Realistically, there ceases to be value in limited credentials for “reporters” (or Congress, or judges) to violate the concept of ethical communication integrity. Instead, they present the opening question (as we saw in this press office), “Have you stopped beating your wife lately.” This is not journalism and the FDIS (Factitious disorder imposed on self) inflected persons presenting it have no value as spouting bigots when real questions and issues could be addressed. Effective therapy would be with a professional Psychologist, not the White House Briefing room.
Ethics? In dc,inc? Ha
@txvet33 Thank you for your service – and I really mean that.
In response to ethics in DC, a quote attributed to Harry S. Truman says it all – whether or not he actually said it:
“If you want a friend in Washington, get a dog.”
To Trump it doesn’t matter if he loses this court case. The likely point is to remind voters of the fake media theme and knock a few hostile media sources off balance.
“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.”
************************
Maybe not. I call it the Goebbles stratagem: Demonstrate the banned entity is no longer a news agency as commonly understood but a propaganda outlet using its position to undermine the duly-elected government of the United States using a classic misinformation campaign to confuse the public. As other commenters have noted here, must we tolerate the insipid, slanted questions of the Tokyo Roses of the world? It’s a policy fraught with traps and dangers to be sure and harkens back to the “A Man For All Seasons” scene where Sir Thomas pleadingly asks what will we to do if after clearcutting all the laws, the devil turns round on us with a new less sanguine Adminstration. Still, we live in a time of designed confusion where enemies take our liberties and turn the sharp edge toward us. Here’s the Adminstration’s case against CNN which is the worst offender:
Defamation & Historical Comparisons”The Big Lie” Labeling: Sued the network for using the phrase “The Big Lie” thousands of times to weaponize Nazi connotations against his election fraud challenges. The “good people on both sides” lie. Dictator Comparisons: Cited a CNN interview where a guest psychiatrist asserted he was as destructive to the century as Adolf Hitler, Joseph Stalin, and Mao Zedong.Smear Campaign Imagery: Accused CNN anchors of purposefully using pejorative labels like “racist,” “Russian lackey,” and “insurrectionist” to damage his political campaigns.Alleged Narrative “Hoaxes”The Russia-Collusion Narrative: Frequently pointed to CNN’s extensive, multi-year coverage of his 2016 campaign’s alleged ties to Russia as the ultimate “Russia, Russia, Russia Hoax”.Iran Diplomatic Frameworks: Tagged CNN for running a “hoax headline” based on what his administration claimed was a fake 10-point diplomatic plan.Immigration & Welfare Benefits: Denounced coverage of his immigration policies as a hoax when reporters questioned his administration for halting illegal immigrants from claiming welfare benefits.Judicial Character Attacks: Claimed CNN coordinates illegal, fabricated hit pieces against conservative federal judges to politically damage his judicial appointments.High-Profile Retractions & News ScandalsThe Nick Sandmann Lawsuit: Highlighted CNN’s massive $275 million defamation settlement with a Kentucky high school student over the network’s inaccurate coverage of a 2019 viral video.The James Comey Testimony: Called out a high-profile 2017 report where CNN falsely claimed former FBI Director James Comey would publicly dispute Trump’s claims regarding his investigation status.The Celebrity Apprentice Credit: Charged CNN with distributing fake news when they reported he would continue working part-time as an executive producer on television while in the Oval Office.
The suit against CNN on behalf of the Kentucky student was for $275M; the settlement was sealed and was very likely a small fraction of that considering that the student and parents would have been able to show substantial damages. It is strange to encounter a “fake news” comment that contains such a level of fake news.
Sandmann’s lawsuits against The New York Times, CBS News, ABC News, Gannett and Rolling Stone magazine were filed in March 2020. In the lawsuit against The New York Times, Sandmann sought $65 million in damages. He sought $60 million from CBS News.
These suits were dismissed. It’s not clear why CNN and WaPo settled when 5 others were dismissed.
My God! Either you are on the MAGA payroll or you are literally delusional. Let’s start with facts- Trump LOST in 2020 and Giuliani suggested that he just say he won anyway—so that’s what he did. He took a victory lap at about 2:00 am, long before all of the ballots were counted— and he stuck to that lie. Dozens of audits and recounts proved there was NO widespread fraud, but Trump tried to bully Secretaries of State into awarding him votes he didn’t receive. He tried to bully Pence into refusing to accept certified vote totals and got fake electors to falsify Electoral College results. When none of these tactics worked, he exhorted his fans to start an insurrection to try to prevent Biden’s victory from being confirmed, which also failed and he pardoned the insurrectionists, even those who had been convicted of assaulting police officers. He’s already trying to sow doubt about the legitimacy of the midterms, and is trying to intimidate voters by threatening to send the military to polling places.
Trump’s campaign DID accept help from Russians—so concluded a Republican- led Senate Intelligence Committee. They hacked into Hillary Clinton’s computer. These are facts that non- MAGA media accurately report on and that Trump’s crony oligarch-owned and manipulated MAGA media pretend aren’t true.
Trump actually has a bottle blonde on the White House payroll whose job it is to follow him around with a printer to print off flattering emails, posts and stories about Trump because his ego is so fragile and he’s failing miserably. To be close to him, she actually rode in the trunk of his limousine because there wasn’t room for her to ride in the passenger compartment.
Trump IS a racist—he refers to African countries as “sh!thole”, falsely accused Haitian immigrants of eating people’s pets and has cancelled visas for Haitian immigrants here legally. He called immigrants from south of the border “animals, vermin, murderers, and rapists”, and has tried to rescind birthright citizenship. He has tried to gerrymander away predominantly black Congressional districts. Are there any black Cabinet Secretaries? No. He also canceled promotions for black and women members of the military.
I could go on and on, but it’s hard to dispute the fact that Trump is uniquely horrible as a leader. He has made enemies of Canada and our EU allies. Non-MAGA media accurately report the truth about him— which is mostly negative because he is so awful, he constantly lies, he did not deliver on any of his campaign promises and we are floundering economically and in our relations with other countries.
He wants to hear praise, he wants honor and glory he hasn’t earned, and not get any pushback—he loves to stand in front of those cameras and lie about nonexistent accomplishments and not be challenged. He believes he deserves a grandiose “legacy”, complete with his name above JFK on the Kennedy Center, a triumphant arch and gilded ballroom, all while driving up the cost of living with a stupid war and illegal tariffs. The national debt has reached a new high.
He has enriched himself and his children by selling worthless crypto and awarding government contracts to companies that his children have ownership interests in. Non MAGA media reports on all of these things.
He cannot handle criticism because he is weak and arrogant. These are obvious facts. The rest of the world knows it, and that’s bad for our relationships and reputation.
MY GOD–CALM DOWN GIGI!! ha ha
My are you from Superman’s bizarro world
“Trump’s campaign DID accept help from Russians—so concluded a Republican- led Senate Intelligence Committee.”
What help did Trump’s campaign accept from Russians? I don’t think they even downloaded Mama Podesta’s ravioli recipe from Wikileaks. And realize the FBI told the DNC their computers were being hacked way back in 2015, but they did nothing.
How exactly is the freedom of the press violated. They can print whatever they want. The president has two solutions if the Supreme Court disagrees. First he can do exactly what he did last time just stop having W.H. Press briefing entirely. Second continue having them but never pick the reporters he doesn’t like.
Did Winston Churchill allow Nazi reporters into his news conferences?
When asking about Sir Winston Leonard Spencer Churchill(1874-1965), are you referring to Lord Haw Haw or Tokyo Rose? Hanoi Jane was after his demise. Details needed.
https://en.wikipedia.org/wiki/Lord_Haw-Haw
https://en.wikipedia.org/wiki/Tokyo_Rose
“You can always count on Americans to do the right thing – after they’ve tried everything else.” — Sir Winston Leonard Spencer Churchill(1874-1965)
Did Winston Churchill allow Nazi reporters into his news conferences?
Answer: No.
Also remember Winston Churchill refused President Kennedy’s invitation to the White House numerous times and Kennedy’s last bribe of Honorary Citizenship led the Supreme Court to rule in favor of dual citizenship and the mess we’re living with now.
There is limited space in the WH briefing room. Does every news organization deserve a press pass to it? K Leavitt started admitting non-traditional news sources into the press briefings at the start of her term as Press Secretary. Many people now only get their news from such sources. Still the majority of organizations admitted are biased against the administration. The point of a free press is to inform the public so that they may make informed decisions about their government and who heads it and represents their interests. The press should be skeptical about anyone wielding power but truthful and unbiased in their reporting. Very few adhere to that principle anymore. The state of our nation reflects that failure. IMO the 3 that were banned engage almost entirely in misinforming their viewers and fail in their responsibility. They are still free to say what they like about anyone they care to but what privilege do they have above other organizations to have a seat in the WH Briefing Room.
weird no Democrat cares when the MEDIA does NEWS blackout about Trump?
Because he’s on the MAGA payroll, Turley has to find SOME way to say Trump isn’t totally wrong and what he did isn’t totally unconstitutional, so he says that “many of us have raised the same objections to such coverage.”
WHO are “many of us”, and what is the “coverage” that is supposed to be “fake news”? I’ve yet to hear any explanation of what any of these outlets have reported about Trump that is “fake”. He doesn’t like the coverage because it’s truthful—-the economy is bad, our relationships with other countries is bad, the war he started has no endpoint in sight and polls are very bad for him. These things are all true.
I have seen Trump fly off the handle when someone in the media challenges him when he’s lying about something—-like the interview with Kristin Welker when he tried to claim he won in 2020, AND that she and NBC allegedly know it. She wouldn’t back down and kept pointing out that all evidence proved that wasn’t true and she kept asking him what proof he had— so he threw a tantrum and stalked off.
Trump is likely to lose because the reason for blocking the outlets is purely content based— they won’t flatter him like MAGA media does. I predict that Blanche’s DOJ will lie about the reason for banning the outlets to try to claim there’s some national security issue or try to say that the prior cases allow Trump to ban networks that stand up to him. I suppose when Blanche’s DOJ lies and mischaracterizes case law, Turley will call that “fake news” too or try to argue that there is a good faith dispute.
Oh man, the whistleblower here has exposed the one secret we all kept! The MAGA payroll is exposed boys, pack it up, this is a level 5 TDS alert!
Propaganda arm of the Dims can say whatever they think will keep them in the cocktail circuit. Does Not mean that they a have any Right to a front row seat to regurgitate their Masters talking points.
Just don’t call on them. Ever. 2 years of a cold shoulder would be fine with MAGAA1st
U wouldn’t know a lie from a fly on your nose.
How about “claims of rigged balloting are false.” Just because a judge didn’t rule that there were problems with the 2024 vote count doesn’t mean there wasn’t any fraud. If a murder gets off on a technicality it doesn’t mean he didn’t kill someone. There is still a dead body and there may even be video evidence but to say it never happened is to lie.
TL/DR
There are three flaws with this position.
1) The 1st Amendment says that “Congress shall make to law . . . abridging freedom of the press . . .”
Well, Congress has made no such law, so this really isn’t a 1st Amendment issue.
2) CNN, MSNOW, etc. can simply do what other media organizations who don’t have individual WH passes, and that’s to use the designated pool reporter for the content of their stories. Then they can just do what they always do and go to the nearest Starbucks and make up their lies.
3) Related to #2, there are hundreds of legacy media organizations and thousands of independent journalists of various stripes and qualities. They don’t have WH access, no can all of them be given access. Yet which of those cry “Freedom of the press!”?
Exactly, it would be better if the media banned Trump. .. and gave us all a break.
The media ‘fake news’ is not going to get anything out of Trump except a tight lip and a frown.
*Turley is half crazy if he thinks we have functioning free press anyway.
‘.. . if I had to choose between a government without newspapers and newspapers without a government, I would not hesitate to choose the latter’ ~ Thomas Jefferson
1). Wholly wrong.
2.) Mostly true
3.) Good.
I do not know what the outcome of any court case will be – but ultimately the WH press corp is a limited venue and thepresident can have rules to determine who can and can not be a member.
While Prof.Turley is correct that the WH can not engage in viewpoint discrimination.
The claim that Trump is engaged in Viewpoint discrimination runs into a number of obstacles.
First being denied a WH press pass does not preclude a site or report from reporting on the WH.
It merely poses an impediment to asking the president questions at WH Press briefings.
These outlets are still free to publish whatever they want and are still free to report on what the President has said.
Legacy media is dying. It is not unreasonable for the WH to reallocate seats from legacy media to new media.
Doing so is not viewpoint discrimination.
This re-allocation is going to occur eventually regardless. The courts can not stop that
Further absolutely nothing requires the president to take any specific reporters questions.
So a court ruling against trump just means seat go essentially unused until reallocations disfavoring legacy media inevitably take place.
Put more simply a court ruling favoring CNN will NOT be a press victory,it will be exclusively a CNN victory,and it will come at the expense of new media.
It is likely- particularly at the lower levels which are openly hostile to Trump that Trump will lose.
But claiming that is a free press issue or a freepress victory is misrepresentation-it would merely be a victory of legacy media over new media
If the courts choose to favor CNN then they are arguably doing exactly what they claim Trump is doing- engaging in view point discrimination. Favoring legacy media over new media.
personally I think that Trump should establish rules for WH press passes based on viewpoint neutral criteria – such as ratings.
That would be more clearly unassailable.The courts have constantly upheld viewpoint neutral rules for actual free speech.
This is a free press issue not a free speech issue. They are similar but not identical.
Regardless the time is eventually coming when the legacy media is going to have its access reduced because it has become less consequential.
does anyone watch CNN anymore ?
Trump’s own words are all the necessary evidence that “viewpoint” is the entire reason for the action; don’t cover his ass for him.
I don’t agree with what Trump did. But I do not think it is viewpoint discrimination.
The CNN employee whose White House pass was revoked said on air that she could, and would, continue to report from the sidewalk. You and everybody else are free to consume her content. Her “viewpoint” remains as accessible to the public.
CNN, MS Now, and Politico can, and will, continue to produce content critical of Trump, his administration, and Republicans. That’s why they exist. Nothing has changed.
Seems like DJT instead of doing this big error move and would have used a 4-D chess move to examine the transcript details to find out and out lies to sue them all for 40T$ called liable. And stay away from the 1A.
I like it cause it pisses off the right people.