Judge Timothy Kelly, a Trump appointee, issued a Temporary Restraining Order yesterday in CNN, Inc. v. Trump to restore the access of CNN, MS NOW, and Politico to the White House. As I previously explained, it was the only decision that he could make in light of controlling precedent from the D.C. Circuit in Sherrill v. Knight (D.C. Cir. 1977). The White House will have to get either the D.C. Circuit to overturn the long-standing precedent or get the Supreme Court to do so. Neither is likely.
On September 18, 2026, President Trump announced in a social media post that, “effective immediately,” he was “banning” the news organizations CNN, MS NOW, and POLITICO “from the White House.” I criticized the move at the time and discussed how the move ran against the grain of controlling precedent. All of the networks, including Fox News, boycotted the White House in opposition to the move.
The move set a dangerous precedent that could be used against other media, including conservative media in the future. While the Biden Administration constantly attacked Fox News, it never banned it entirely from the White House. Indeed, when President Barack Obama barred Fox from one event, all the networks joined in boycotting the White House until Fox’s access was restored.
For decades, the courts have acknowledged that the White House is not a “public forum” but rejected that access could be denied arbitrarily or based on viewpoint discrimination.
As previously discussed, in Sherrill v. Knight, the United States Court of Appeals for the District of Columbia considered a ban on Robert Sherrill, a reporter for The Nation. 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.”
Even cases that have supported the Administration reaffirmed this line. 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.
This is why Judge Kelly, as a lower court judge, had no alternative to ruling for the media litigants under binding precedent. He did so, however, on the narrowest grounds (which is also what courts are supposed to do in constitutional cases). Rather than addressing the more sweeping question under the First Amendment of viewpoint discrimination, Judge Kelly found the order issued on social media to be a denial of due process:
Plaintiffs have shown a likelihood of success, at least on their Fifth Amendment procedural due process claim. The merits of this claim are assessed in two steps: “the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Plaintiffs have shown they are likely to succeed at both steps.
As for the first, the D.C. Circuit held in Sherrill v. Knight (D.C. Cir. 1977) that “the interest of a bona fide Washington correspondent in obtaining a White House press pass … undoubtedly qualifies as [a] liberty [interest] which may not be denied with-out due process of law under the fifth amendment.” And if there were any doubt about what Sherill meant, the D.C. Circuit more recently reaffirmed this conclusion in Karem v. Trump (D.C. Cir. 2020), holding that “a duly issued hard pass may not be suspended without due process.”
It would be ideal if the White House would simply let this one go without further litigation. President Trump has made impressive gains in executive power in prior opinions, including Trump v. Slaughter, which overturned the 1935 precedent limiting a president’s power to fire executive branch officials in Humphrey’s Executor v. United States.
President Trump could lose presidential territory over this challenge if it goes to the Supreme Court. The odds are against the Administration, and he could increase, rather than reduce, media rights over access to the White House. It is, of course, possible that a slim majority on the Court could support him, but I think that it is unlikely.
There is also a political dimension to this controversy. The move may be playing well with many in the President’s base, but it is not playing well with the key independents and moderates that Republicans need in the midterm election. There is a great deal of grumbling on the Hill privately that this does not make matters easier for the party as it struggles to hold on to at least one house in the midterm.
It is never easy to get a president to drop a high-profile stance, particularly this President. However, this is how Las Vegas casinos make their money: getting gamblers to double down on a bad hand to recoup their money. It would be far better for the Administration (and future presidents) for President Trump to walk away from the table. He can count some major wins under Article I and could well have some additional victories in the making this term. That would be a better focus of the efforts of the Justice Department.
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.”
Aww, the media doesn’t like lawfare now!
Best option, just don’t call on them. Relegate them to the role of spectator. Easy peasy!
This is an unforced error. I get that Trump is not happy with their coverage of him. Plenty of Presidents have not liked the coverage. Yet to ban given press for their views is blatantly anti-first amendment. I do not see this one stand and it will leave egg a Trump’s face and give the press even more fuel for the fire.
He can have his cake and eat it too. Let them in and do not call on them. Let them complain then and it will make them look whiney.
The media is not happy with Trump’s coverage of the media.
Trump gave them some ‘busy work’ but they have to bring their own crayons.
Who are these idiot judges? They have no authority to tell Trump who sits in and who doesn’t. The President is under no obligation to even hold press conferences.
I would ignore the judges ruling as he has no authority to dictate the operation of the executive branch and then return the press room to its original configuration as a swimming pool. Kick all of these effing liars out on the street.
It’s the president that doesn’t have the authority to pick and choose. He can deny everyone access, but not limit the White House to those who say good things about him. The president is currently breaking the law by continuing to deny access despite the court order. What is the penalty when the president breaks the law. Oh, that’s right, he has immunity. I’ll bet the Founders never saw that coming.
My greatest frustration with DJT is that he lacks discernment in the battles he picks or the political consequences. He is a citizen president having never served in public office or the military before winning the presidency. His approach to the office is as a CEO which has both positive and negative implications. In terms of decision making and implementation he is the most energetic president I have ever seen. He seems driven by the short (4 years to him seems short) term he has in office. He sees many problems and is hell bent of fixing them all. On the negative side, it appears he doesn’t take the counsel of staff when it comes to picking which battles to join and which to defer on. I wouldn’t be surprised if anyone who might risk arguing against his impulses, would be very hesitant to do so. As we have seen, getting fired by DJT is a very public matter. He doesn’t seem to grasp that this aspect is to his own detriment and IMO to the nation which still has much to benefit from his remaining term, if he would stop getting in his own way.
He has wasted a great deal of political capital on things like this. Capital that could have been used to further his agenda. While he is not a politician, his handlers should have reigned him in on silly stunts such as this.
And what is political capital? https://marketbusinessnews.com/financial-glossary/political-capital-definition-meaning/
A CEO can be fired at will by a majority of the Board of Directors. Trump knows he cannot be fired withot the agreement of 60 Senators, an almost impossible possibility.
2/3 vote of those present and voting, or 67 Senators of the whole Senate, is required to convict/remove. Article I, sec. 3:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
He’s not “fixing problems”. He’s looking for things that make him look good. He’s incredibly vain and a moron. The man can barely read.
This is no small matter. The First Amendment is first because Freedom of Speech and Freedom of the Press are the foundations of a free society. But here lies the rub. Professor Turley quoted a lot of words that mean different things to different people. What is a “news organization”? Does “banning” a corporation (a/k/a “news organization”) from the White House prevent it from publishing whatever truths and lies it wants? What do “arbitrary”, “compelling reasons”, and “viewpoint neutral” mean? If a corporation devotes enormous resources over the course of years to overthrow a duly-elected President, shouldn’t “insurrection” and “national security” be part of the conversation? It’s not a matter of “viewpoint neutral”; it’s a matter of endless efforts designed to overthrow the government. The conversation should include: Trump-Russia Collusion, Trump urinating on Russian prostitutes, Trump having sex with his daughter, Trump having illegal immigrants whipped by his henchman on horses, reporting J-6 and concealing the fact that Trump told his supporters to be peaceful and patriotic, CNN being present and taking video when over a dozen guns-drawn FBI agents swarmed the home of Trump’s political strategist Roger Stone and arrested him at 6:00 am, “The New York Times” and “The Washington Post” getting and keeping Pulitzer Prizes for admittedly false reporting about Trump-Russia Collusion, and (who can forget) the mostly peaceful protests described by CNN and MSNBC (a “press” member that then changed its name), Trump lurched over the seat and grabbed the steering wheel away from his Secret Service driver … the list is inexhaustibly outrageous. Some people (even some judges and law professors) might see all this as mere opinion by the “press” (charismatic people paid to do the bidding of whoever pays them). Other people might see all this as an insurrection. Beauty is in the eye of the beholder.
The Constitution ensures we have a “free press”. It does not ensure we have a fair press. So it is not.
“ President Barack Obama barred Fox from one event, all the networks joined in boycotting the White House until Fox’s access was restored.”
False. It was the Treasury Department denying an interview to Fox News. A bit of literary sleigh of hand from professor Turley. It lasted only hours and it didn’t require a court to rule on the issue. President Obama never literally called for banning Fox News from the press pool. What the Obama administration did do is ban administration officials from appearing on Fox News. A key distinction.
Trump is doing his administration no favors by pursuing losing arguments as Turley points out. Basically admitting, albeit gently, that Trump is a moron.
Trump would never let this go. It’s his spiteful nature and what is earning him his low poll numbers.
Frankly I’m surprised (not) Turley is not discussing the Missouri redistricting mess created by Republican appointed judges. Probably because Republicans are involved in defying the Supreme Court both the state and SCOTUS. It’s some wild stuff.
X, Turley does not tell “false”hoods. Only you do.
Here, read this to refresh your copy-pasting memory, from the Reporters Committee for Freedom of the Press (RCFP)
https://www.rcfp.org/white-house-attempted-shut-out-fox-news-reporter/
“Despite the administration’s pledge to play nice earlier this week, the White House tried to exclude Fox News – alone among the five White House ‘pool’ networks – from interviewing executive-pay czar Kenneth R. Feinberg on Thursday.
“On Wednesday, NBC’s Savannah Guthrie interviewed Obama about the propriety of his administration’s stance on Fox News. ‘We’re going to take the media as it comes,’ Obama said. ‘And if media is operating basically as a talk radio format, then that’s one thing, and if it’s operating as a news outlet, then that’s another. But it’s not something I’m losing a lot of sleep over.'”
You need to read what you actually linked. Notice the specific wording used by the RCFP: “the White House attempted to shut out” and “the White House tried to exclude Fox News.”There is a massive, factual difference between an attempted exclusion from a single interview and actually “barring” a network from the White House entirely.
The Treasury Department tried to exclude Fox from an interview with the “pay czar,” Kenneth Feinberg. It was not a blanket ban from the White House, press briefings, or press credentials.
the RCFP notes, the other networks balked. Because the other networks refused to do the interview unless Fox was included, the administration immediately folded and Fox got the interview.
Saying Obama “barred Fox News from the White House” implies they were stripped of credentials and kicked off the grounds. That never happened. They kept their seats in the briefing room, kept their credentials, and kept asking questions for all eight years.
Turley was being dishonest by omitting those key facts.
The WH “attempted” BUT WAS STOPPED BY THE REMAINING FOUR PRESS ENTITIES NOT APPEARING.
You make the dumbest arguments.
ROFL!! Stopped? LOL!!! No. The just recognized the issue was not worth the hubbub. They immediately changed their position. Meaning, they did the right thing rather than throw a tantrum over it and drag it over to the courts. They were smart about it. Trump on the other hand was being pretty dumb about it. Because he’s a moron.
Remember Trump ACTUALLY banned the media outlets AND revoked their press passes Obama never did that.
Haven’t we been down this road before? Seems like the simple solution would be to let them attend, however, just don’t call on them for any questions. This, in my opinion, would comply with the law, but not allow them a platform to get the highlight reel moment, they are apparently seeking. By making this a big deal Mr. President, you are giving them the attention they so desire, kind of like a spoiled child.
I agree this should be simple. But because Trump is an insufferable moron he can’t get past the idea that the media is pointing out his growing list of policy failures.
wHo is the ‘insufferable moron’ that we must all tolerate on this blog everyday? Despite his “growing list of ….failures?
Who is? Well…..YOU. Everyone knows that.
no, I’m not the same person. MULTIPLE people criticize your silliness
Sure, anonymous, sure.
GSX The question is whether the policy failures you talk about are consequential. I agree; Trump has some failures, mostly minor ones, but his major achievements have been largely successful. He stopped illegal immigration almost completely, and that more than makes up for his failures. Go ahead. Mention a failure of significance, and you will find that what Democrats perceive as a failure is a successful attempt by Trump to protect the nation.
Minor ones? Every failure has been a major one. The War with Iran so far is the biggest one. It’s affecting our economy, record Diesel and gas prices. Depleting the SPR, costing every one more money at the grocery store and utility bills. How is that a “successful attempt to protect the nation”? In waging this war Trump has depleted crucial ammunition. That’s why he can’t afford to defend Saudi Arabia and other allies in the Gulf. That’s why Israel is not flying jets to bomb Iran. Because even they can’t afford to expend ammunition defending from Iranian ballistic missiles which they have plenty of.
How is the immigration crack down helping the economy? It’s not lowering prices or helping Republicans at the polls.
What major achievements can you cite that have helped the economy and the nation?
This and other editorials only address what are considered Trump’s obligations. They get teary eyed over the first amendment when it’s Trump against the press. But they act like blind referees when the press refuses to cover Trump or has him kicked off their platforms. No one seems to address the obligations of the press. There’s no press governing body. If 95% of the coverage from these press outlets is negative shouldn’t that require at least a review if not a rebuke? It’s no surprise that he lost in the court. The court has become the enforcement arm of the swamp. He should drag it out and make them spend heavily on lawyers; then seat them at the back of the room when they are allowed back in. If the media had the power they would do a lot worse to him – and have.
Obligation? He’s upset about negative press coverage because his policies are crap. His war with Iran is going badly, Diesel and gas prices are at record highs, the economy is not doing well, the national debt is exploding, and he’s not helping the average consumer with affordability. All because he is a moron who can’t grasp the fact it’s his fault.
Obama was equally upset. When it backfired, Biden learned from Obama. INstead, Biden simply criticized the press and the Court. Try being a little more truthful.
No he wasn’t. He was annoyed. That did not translate into a throwing a wild tantrum and lying outright like Trump. He can’t handle ‘negative’ news because he doesn’t like being associated with his policy failures.
Would someone please do us all a favor and unplug X’s computer or steal his keyboard? This thread is a prime example of the obnoxious pomposity of the twerp who calls itself “X”
You mean factual information. I understand MAGAs are allergic to facts.
You do know the President is spending your money heavily to present his side of the legal cases?
So did every other president. Clinton, Bush, Biden, and Obama.
I read an article that pointed out that all 5 main media boycotted presidential activities. Thus leaving the public without main media coverage of his events. Recently AG Bonta sued Paramount/Skydance to block the merger with Warner Bros. If he was fair wouldn’t he be interested in suing these 5 for monopoly pracitces?
Maybe the solution is to let them back in, but don’t call on them to ask questions. If you read the decision in Sherrill It doesn’t require the president to call on any specific member of the Press
This is The holding in Sherrill:
Yes. Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977), is one of the foundational cases governing White House press access. But there is an important distinction between a White House press credential (“hard pass”) and membership in the much smaller presidential press pool.
What Sherrill v. Knight held
Robert Sherrill, a Washington correspondent for The Nation, had congressional press credentials but was denied a White House press pass after the Secret Service concluded that he posed a security concern. The government did not disclose the factual basis for that determination or give him a meaningful opportunity to contest it.
The D.C. Circuit began with an important premise: the Constitution does not require the President to open the White House to the press at all. Nor does the President have to give every journalist an interview simply because he gives one to another journalist. The court specifically said that the President retained discretion to conduct interviews or briefings with selected journalists.
But the court said the situation changes once the White House voluntarily establishes regular press facilities that are generally available to bona fide Washington journalists. At that point, the First Amendment protects journalists against arbitrary or content-based exclusion from those facilities.
The court therefore required three procedural protections when a journalist is denied a White House press pass:
* the government must disclose the factual basis for the denial;
* the journalist must have an opportunity to respond or rebut it; and
* the government must issue a written decision explaining the denial.
“… the First Amendment protects journalists against arbitrary or content-based exclusion from (regular press) facilities.” Interesting. It seems the Court simply made up those three rules from thin air considering 1A makes no mention of press being granted an additional “Access” Right, above and beyond, the free speech Right. You know, the one that mentions only CONGRESS shall not pass laws against speech and speaking. Where did any court get the authority to grant EXTRA Rights to force the Executive branch or Congress (think Jan 6th where the Capitol building was determined ‘closed’ to the public during regular business hours) to force access while the same courts can ban the same people from the courts for no reason, if they choose? Doesn’t sound like a Check or Balance the Court is applying at all. Instead, it’s just more: “Because we say so”, from a huddle of black-robed narcissists who like overstepping their roles. “The Press” isn’t better, more special, or more deserving of access to government than any other citizen.
The total outcome of the executive order and injunction can be summarized in one word: NOTHING.
The reporting of CNN, etc. will not change. The hate of DJT will not change. DJT will not change.
This legal dispute once again reveals the politically costly Achilles’ heels, which are essentially the same as those of his first term in office:
* President Trump incorrectly equates the scope of action and decision-making authority of a CEO with that of the POTUS.
* He continues to be surrounded by extremely influential counsels (why do they bring up old and recurring annoyances at such a late hour?) who fail to grasp the impact of his angry (and ill-considered) late-night tweets, which noticeably limits his further argumentation for the decision made.
* The unpolished arguments of the administration in court filings reveal, in a shocking way, just how few patriotic lawyers there are.
‘ Many media outlets do not have special access to the WH: The First Amendment does not guarantee a seat in the briefing room or membership in the press pool.
* There is no legal provision requiring a POTUS to make access to the WH (limited due to space constraints) contingent on balanced reporting. Incidentally, there was no outcry when Biden changed the access criteria in May 2023.
https://www.whitehouse.gov/releases/2026/09/white-house-access-is-a-privilege-not-a-right/
Yes. Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977), is one of the foundational cases governing White House press access. But there is an important distinction between a White House press credential (“hard pass”) and membership in the much smaller presidential press pool.
What Sherrill v. Knight held
Robert Sherrill, a Washington correspondent for The Nation, had congressional press credentials but was denied a White House press pass after the Secret Service concluded that he posed a security concern. The government did not disclose the factual basis for that determination or give him a meaningful opportunity to contest it.
The D.C. Circuit began with an important premise: the Constitution does not require the President to open the White House to the press at all. Nor does the President have to give every journalist an interview simply because he gives one to another journalist. The court specifically said that the President retained discretion to conduct interviews or briefings with selected journalists.
But the court said the situation changes once the White House voluntarily establishes regular press facilities that are generally available to bona fide Washington journalists. At that point, the First Amendment protects journalists against arbitrary or content-based exclusion from those facilities.
The court therefore required three procedural protections when a journalist is denied a White House press pass:
* the government must disclose the factual basis for the denial;
* the journalist must have an opportunity to respond or rebut it; and
* the government must issue a written decision explaining the denial.
President Trump resumed office on 1/20/25. He knows that the MSM reports hostilely (and yet he gives countless interviews where he can pick which banana peel he steps on). In the last 1 1/2 years, there has been enough time to meet these “procedural protections”!
Regardless: The negative reporting about his tenure will continue; he would have spared himself another unnecessary legal defeat, including coverage of his repeatedly unconstitutional actions!
Then you must admit that the “polished” argument from Obama was equally flawed.
“On Wednesday, NBC’s Savannah Guthrie interviewed Obama about the propriety of his administration’s stance on Fox News. ‘We’re going to take the media as it comes,’ Obama said. ‘And if media is operating basically as a talk radio format, then that’s one thing, and if it’s operating as a news outlet, then that’s another.’” https://www.rcfp.org/white-house-attempted-shut-out-fox-news-reporter/
As your comment deals with EXPLANATIONS (and not legal disputes), we are sailing on different ships!
President Trump continually makes it clear that he feels unfairly treated by the MSM. No law prevents him from regulating access to the WH according to his demands, as long as he goes DUE PROCESS.
If he cared about having independet journalists and MSM from both sides of the political spectrum fairly represented IN THE WH: Then in the 1 1/2 years of his second term, knowledgeable lawyers could implement this order due process. As there is limited space many outlets have will have no WH access (now: Breitbart is one them).
Either way, MSM would have sued anyway.only the First Amendment argument would have gone up in smoke.
so the press is FREE to openly LIE and nothing happens?
when Trump makes them apply to enter the whitehouse, LIKE everyone else…a judge steps in?
They weren’t BANNED, they had they automatic access revoked!
“ so the press is FREE to openly LIE and nothing happens?”
Yep. Do you know who championed that view? Fox News.
They were banned. News media don’t get “automatic access”. They get ‘equal’ access. If all other media is allowed access regardless of viewpoint certain news organizations cannot be denied access because the president doesn’t like their reporting. The one solution Trump could implement is ban everyone from the White House. But that goes against HIS need to be in the spotlight. HIS need for attention. He just wants flattering and positive news only. That’s not how it works. That is what Turley is saying.
The repeal of the Smith-Mundt Act, and thus permitting propaganda to be disseminated from US news outlets, would be a pertinent part of the discussion here.
It’s exhausting watching a President, who rarely has a reason beneficial to Americans, routinely challenge laws and norm.
Democrats OPENLY HATE America and western society
pro illegal
pro crime
pro drugs
pro hate
pro CHOPPING kid’s sex organs off
Democrats are exhausting and are FIGHTING A CIVIL WAR!
Yes but we have put biden behind us now and now have a president who routinely challenges your sanity.
Just don’t call on them- pretty simple. But I agree- let it go DJT.
Meanwhile, Wisconsin Supreme Court declined to suspend law license of ex-judge and convicted felon Hannah Dugan, after she was convicted of felony obstruction.
Oh, and she’s getting her full pension.
Crime and no punishment.
I bet she kept her voting rights and ability to own a firearm too.
Contrast that to California where John Eastman was disbarred for giving an opinion.
Too bad, It was such fun watching them do their jobs on the sidewalk.
Oh well, it was the thought that counted.
You’ve got to know when to hold ’em
Know when to fold ’em
Know when to walk away
And know when to run