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.”
When a first year law student knows this is a frivolous lawsuit – why are we the taxpayers paying for this? Send the legal bills to Trump’s attorneys to pay from their own personal bank accounts. Why are we paying for this frivolous crap?
Getting away from knee jerk reactions I offer the following: 1 – SCOTUS says no to the ban, thereby reinforcing the precedent and preventing any D/Left/etc. from ever doing it to conservative media (see UK, EU, Canada, etc. arresting everyone who’s thoughts they don’t like). 2 – think about discovery and that the three “banned” have to defend their reporting as “accurate and fair”. Also note that the ban was not about opposing opinion but lying and saying it’s “news”.
I was friends with Sherrill when the case was argued and decided. He never talked about it but did make this point to a young journalist. The White House press room was the last place he’d go to get the dope on the president.
Turley’s long-term memory is faulty. Obama and the White House Press Corp banned OAN and many other conservative reporters from White House press conferences. Obama also held many private press conferences limited to Woke media worshippers, reporters that his own communications strategist, Ben Rhodes, declared would echo and amplify anything Obama said. The Leftists and their controlled media cheered wildly. A few conservatives spoke up about first amendment violations but were drowned out.
For Jonathan Turley to go into high dudgeon about the White House doing 1/10th of what Obama supports selective application of the first amendment, thereby gutting the first amendment. A decision in favor of the two-faced media by Federal Courts will reinforce the perception that America no longer has a free and fair judiciary.
Another MAGA media lie that is spreading like wildfire on MAGA media. From “Times Now”:
“In October 2009, a Fox News journalist was temporarily excluded from a multi-network interview involving the Obama administration. The exclusion was later reversed after other news organisations, including CNN, objected.”
Just the lie Trump is trying to use now–denying that he banned CNN, Politico and MSNOW because of content–after some lawyer explained to him that he just handed these outlets a defense on a silve platter–now, he’s claiming that their “fake news” is a “national security threat”, which Blanche will no doubt argue.
OAN is NOT “conservative”–it’s one of those pro-Trump MAGA media outlets started by wealthy oligarchs to defend Trump and attack mainstream media and Democrats–per AI:
OAN stands for One America News Network, a far-right news and political commentary channel.
OAN, also known as One America News, is a television channel and website founded by Robert Herring Sr. in 2013 and owned by Herring Networks, Inc. The network is headquartered in San Diego, California, with news bureaus in Washington, D.C., and New York City. It is known for its conservative and pro-Donald Trump perspective, often promoting political commentary and conspiracy theories
The network originally launched in partnership with The Washington Times, a conservative newspaper, and was created to provide an alternative to mainstream media for center-right audiences.”
As explained previously, MAGA and conservativism are not synonymous. True conservatives eschew MAGA and Trump.
It truly sucks to be a liberal nowadays, bending over for free to a democrat party and their tongue bathers that has nothing but a perfect lifetime record of turning every organization, village, town, city, county, state, and country they run into a pile of rancid stinking steaming brown stuff, infested with Trump Derangement Syndrome, and reduced to screaming, screeching, and frantically waving a pink ‘female anatomical part’ hat as President Trump and his Cabinet slowly but surely correct all of the ills inflicted on America by the America-hating democrats!
What about Breitbart and James Rosen?
Do they count?
Mostly Anonymous posts today. What a farce this blog is today!! Anonymous replying to themselves over and over, SICKOS!!
The ban looks like a display of weakness. If space is limited participants should be chosen at random.
The admininistration determines the format and chooses whose questions get answered. That should be sufficient to discriminate against substandard journalism.
An unnecessary kerfuffle.
Talk about manipulated news from MSM and journalists.
Here is Biden’s approval ratings from Real Clear Politics:
approve/disapprove
RCP Average 39.0 57.1
InsiderAdvantage
800 RV 39 59
CBS News
2174 A 37 63
Rasmussen Reports
1500 LV 43 55
Harvard-Harris
2650 RV 39 57
Economist/YouGov
1425 RV 41 56
Wall Street Journal
1500 RV 36 52
FOX News
922 RV 42 57
Emerson
1000 RV 37 52
CNN
RV 37 63
Did the media constantly make Biden’s poll numbers part of their daily news reporting like they do for Trump?
And did you notice that the two conservative pollsters, Fox and Rasmussen, showed the highest approval numbers?
What does that tell you about the media?
The nation’s major television networks are declining to participate in White House pool duties moving forward in response to the Trump administration’s decision to bar CNN, MS NOW and POLITICO from the White House, Fox News Washington Bureau Chief Bryan Boughton wrote in an email to TV pool subscribers.
“This is to advise that, effective today, the TV pool will not be covering events designated as pool coverage of the President,” Boughton wrote in the email. “This follows the White House’s position preventing CNN from fulfilling its assigned pool duties. There will be no replacement pool put in place.”
The television pool provides video from events where space constraints prevent every outlet from sending its own camera crew, with footage then made available broadly to news organizations.
CNN was scheduled to serve as the television pool today. But a White House “daily guidance” email sent to reporters last night listed no TV pool at all.
Please note that the executive chairmanship of the TV pool rotates quarterly among the 5 major networks, and that Fox News Washington Bureau Chief Bryan Boughton is the current chairman.
Fox is part of this boycott.
Obama never banned Foxnews. Imagine the outcry had he ever done so.
Why would he? He had MSNBC, ABC, CNN, Telemundo in his pocket. Rachel Madcow, the harpies of the View, Hollywood, all of them 24/7/365. I do recall him going after a few journalists though…
Freedom of the press is not limited to those with ‘credentials’. I’m a journalist if I say I’m a journalist, so why can’t I sit in the press pool and ask questions?
Am I banned?
If police officers and other agents of the government are expected to speak to citizens in a respectful manner (per policy and official literature put out by the government), then
the president should be expected to, as well. Members of the press are citizens.
The White House is not required to have press briefings at all.
If I was Trump, I would only do exclusive interviews with friendly media like the dems.
Good point. Also press releases.
Mockingbird MSM may want to keep clear of courtrooms for this one. We now know USAID paid Politico via fake subscriptions for lying about Trump. So before autopen judge decides who gets to lie, there may be discovery phase. That may get ugly.
Do police officers have a First Amendment right to use racial slurs against citizens?
No. But their organizations have speech policies. New to the USA?
Anonnying
Only if they are black or brown
Sorry, but race baiting in the least racist country on earth is futile.
Wait, wait, wait. You believe the USA is the least racist country in the world? Whew!
So, how is then that many American Blacks claim they are not racist towards whites when the beat and kill white Americans en masse and whites are racist because they’re white. And white anti-racists claim all whites – except themselves – are racist. And then when 85% (whites) of the population is accused of racism by 15% (blacks). So that disproves your claim
Jon, arbitrarily, really? This wasnt arbitrary. He provided many examples proving why he made the move. So per your view; the WH cant deny press credentials arbitrarily, but they do so daily to many news outlets who are independent and may not have the reach of the corporate press. By your standard, that would be arbitrary reason to deny a pass. It’s not about bias. It’s about being honest in their reporting. They knowingly lied in many of those examples he posted about cnn. Is lying arbitrary?
Arbitrary? Mom just baked one cookie. Leaves and comes into kitchen, . Sees kid is chewing something, cookie missing, mom asks,
did you eat the cookie that I put here a minute ago? Kid, no. His answer was arbitrary.
Access to these spaces are limited resources and therefore a privilege granted to some and denied to others. At what point does denial of access cross the line from viewpoint to a behavioral abuse of this limited access?
It’s whatever liberals say it is.
Man, oh man – when Trump has finally lost Turley – you KNOW it’s bad…..
Every day we hear those of you on the left claim that Turley is some paid right wing shill
While I disagree with Turley’s take on this issue – because it is not a free speech or free press issue
It is about the decline in importance of the legacy media.
Regardless, it is obvious to all but the blind – that Turley’s values have not changed
BUT YOURS HAVE.
Turley is no one’s shill.
But those of you on the left today are enthralled by a corrupt and bankrupt ideology.
Turley is a paid Fox News pro-MAGA commentator. Turley is a paid right wing shill
Turley who happens to tell the truth about the left which is your entire motivation to be here comrade sally?
It’s also ours.
He is a democrat too. Get lost Sally.
Every swinging dik with a cell phone or gopro is a YouTube journalist in today’s world. With AI every clip can be edited and presented as authentic.
Who cares, the media is just a distraction propaganda machine at this juncture of our decline.
Give it up. We know what you’re about. Insincere to the end eh? well the dems are at their end.
Fox News Channel’s top executive said that the company was “deeply relieved” to learn that the White House’s media ban would only apply to news outlets.
“When I heard about the ban, naturally I was concerned,” Lachlan Murdoch said. “So I called President Trump and asked, ‘Does this impact us?’ And he said, ‘No, this is just about companies that do news. You’re safe.’”
CBS News chief Bari Weiss shared Murdoch’s satisfaction in knowing that her division would be exempt from the ban, stating, “My zero-tolerance policy on news at CBS News is already paying off.”
Are you trying to compare yourself to, or compete with, the Babylon Bee?
try again, your daily attempts fall quite flat.
Is there a point in that jumble of words?
None of those quotes are real. Fake quotes the next step?
MJ
They were not intended to be real. The post was supposed to be biting sarcasm.
But it fell flat.
For much of my life the right lost the battle for humour.
But for the past decade the left has completely lost the ability to be funny
They can not success fully poke fun at others,they can not engage in having fun with themselves.
Supposed? But you used quotes. So you lied. Right?
Proof once again that the left has lost its sense of humor.
Honestly, do you actually think your post is funny ?
He tries this every day. Wasting space on Turley’s legal blog. Glad that people can see thru him
The question of why the WH did this is really easy to answer – The White House knows it will loss this case but they want to give them a hard time / waist their money / keep them out of the WH when there’s a lot of news to cover – The WH knows what they are dong…
Why will they lose this case?
The legacy media is dying. New Media is replacing it.
Is the legacy media entitled to preference at the WH despite having the attention of ever dwindling numbers of americans?
Absent a gargantuan shift in ratings legacy media is inevitably going to lose its favored access not just at the WH but throughout the marketplace.
Trump may or may not be doing this badly – it is hard to tell because the reporting is so distorted.
But the decline of legacy media is inevitable and with that will come loss of perqs
Professor Turley,
That is about as soft (and Trump-friendly) as one can cover this topic. There is no question this a clear violation of the First Amendment. From the man who likes to repeat the common refrain – “fight bad speech with good speech”- one would expect a much more full-throated opinion on this issue.
Of course, this executive action benefits your employer, Fox. So, if there was any question that conflict of interest affects your articles, this is it.
As soft? Is there another level of coverage that you demand or required?
Conflict of interest affects your articles? It’s obvious you lack perspective.
Heard Mamdani is looking for sycophants.
It isnt a a violation of the first amendment. If it was, any legit news outlet that applies for a WH press pass could sue over being denied. There are many legit outlets that are denied a pass just because they’re not “big enough”, but that would violate their First Amendment right. They still have the right to report on the president, they just won’t be first to report and put their bias on the reporting before other outlets get their reporting out there. Thats what this is really about for CNN and the others, they wont be able to spin news before other outlets report it.
If this were unconstitutional, did you scream about it when Obama did the same to fox news?
What does this controversy have to do with Obama? It was Trump who made the decision. What does this have to do with Fox news? Its MSNBC, politico etc.
Remember when Obama anointed ABC as the WH official network?
Remember when Obama hailed Oprah as daytime queen of propaganda television? Remember when Obama coat tailed in rapper Snoop Dog in as a mentor to daytime children’s television Nickelodeon? A doper, a gangbanger and a suspected murderer, remember when??
Why is this a first amendment violation ?
Trump has done nothing that restricts CNN or anyone else from reporting on him as they wish.
This is about the priviledge of a front row seat
There are only so many of those.
Why is CNN more entitled to one than newsmax or megan kelly or joe rogan
There is a cost to declining relevance to the majority of americans.
One of those costs is a loss of perqs.
I do not know how the courts will rule on this
But absent regaining the attention of the american people
CNN etc will slowly lose more and more perqs of favored access and treatment.
There is a constitutional right to say what ever you want about the president.
There is a constitutional right to report on the president.
There is not any right to a front row seat
There is not any right to special access