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.”
Boo Hoo. Mr. Trump is a thin-skinned whiner. An embarrassment to the Office of the Presidency.
‘Federal courts’. No, dem judges. Appointed by dems. Period. Welcome to your future if the dnc ever holds majority power again. Doubly so for dem apologists like our host.
The judge who ordered the injunction was appointed by Trump and he previously ruled against Trump when he banned Jim Acosta.
The three branches of government are coequal, but one is more coequal than the others.
Correct. SCOTUS decided it is more coequal than Congress and Executive Branches combined in Marbury when it determined IT will tell the nation what the Constitution means, not the text of the document itself nor The People who ratified it.
White House press monopoly exposes risks of news blackout, as RAV steps in with new pool feed
John Solomon, a veteran journalist and founder of Just The News, has argued for years that it is time for the White House to allow a second press association to compete with the White House Correspondents’ Association. He said this week the latest episode heightened the need for such competition while exposing another issue for legacy press: trust.
“I would be more interested if their colleagues worry less about access and more about accuracy. Because I will tell you, a lot of these publications that are singled out here have had a bad record of accuracy, a bad record of non-neutrality, a bad record of bias, and I think they should focus on that first,” Solomon said.
https://justthenews.com/government/white-house/real-first-amendment-issue-press-monopoly-creates-gaps-coverage-limits-news
So now the oligarchs who set up MAGA media want their own monopoly to spew pro-Trump lies–the biggest lie being that media that tell the truth about what an utter failure he is are not trustworthy. That was one of the missions of MAGA media–to spread distrust of non-MAGA media. And “just the news” is MAGA.
As Professor Turley observes only at the end, this decision actually was not based at all on the 1A. It was based on the 5A due process clause. The court held that these journalists had a liberty interest in access to WH briefings that could not be denied without due process, including clear standards, prior notice and a hearing.
The 1A does not even appear in the opinion.
We all know, and the President knows, that the courts will reverse this order. Still, he will have catapulted the issue of “fake news” to the public, which is what all this is about in the first place. And the media play along and right into the trap. Ha!
Fox News is at the top of the fake news charts having manufactured from thin air claims against voting machine companies that left them with paying nearly $1B in settlement of a case against them. While WaPo got tagged for the MAGA kid, that was just enthusiastically rolling with the original videos released of the interaction, an interaction that genuinely existed, but with poor information originally released by one side and no information from the other until afterwards. Frankly the involvement of the Black Hebrews got significantly less coverage than they should have.
Whenever Trump calls something fake news, it is because it is both true and not flattering to him.
The judicial branch just usurped and exercised the power of the executive branch.
The executive power is vested in the president.
Freedom of speech and press may be exercised in locations where the parties involved are allowed to be.
Does Trump and Company not know how to run a classroom? Put the Damn Dunce News groups at the back of the room (reassigned seating) and NEVER Call on them. How hard can this be to make their life miserable and irrelevant?
Take a look at how Maine democrats across ban the Maine Wire while allowing access to all others.
Update: ‘The Babylon Bee’ Now The Only News Outlet Left In America With White House Credentials | Babylon Bee
https://babylonbee.com/news/update-the-babylon-bee-now-the-only-news-outlet-left-in-america-with-white-house-credentials
All these years and this is the first time Babylon Bee has a funny headline.
It is clear that President Trump was given very poor advice (or possibly ignored good advice) on this matter. If he is still fuming, President Trump could, instead, call on more favored journalists while still inviting all the press to listen.
Trump cannot help himself from calling on them in order to give himself an excuse to make unsupported disparaging remarks.
He likes people to fawn over him and he likes being a bully, just like his dad bullied him.
The court order confirms the right of press access to the White House; it does not require the President or his agents to engage reporters of the press outlets involved. I suspect that nothing would be more infuriating to these reporters than to be ignored by the President of the United States. Prof. Turley’s advice is correct: the President should choose to let this one go.
Bottom-line: Trump made his point… the Fake News is Over-the-Top with the constant stream of DISINFORMATION, always becoming more and more malicious and indeed anti-USA… They (especially CNN) are so whacked out with TDS, that they will ‘cut off their nose to spite their face.’ i.e. AMERICAN BE DAMNED if you get in the way of our Hating Donald Trump.. for no other reason than we all decided when he showed up on the Political scene, that he doesn’t belong there, i.e., he is Not a Deep Stater. like Obamo and Hillary.. not a team-player there…….. Good Chess Move by POTUS.. even if it’s not a final checkmate!
According to poll after poll and the opinions of well-respected presidential historians, Trump is the WORST occupant of the White House–he lied about bringing down the cost of groceries, energy and everything, lied about bringing the Russian war against Ukraine to an immediate end “on day one”, and lied about”no new wars”. He falsely boasts about being the only one who can do things. He denied knowing anything about Project 2025, but signed 180 Executive Orders drafted by the authors of Project 2025–that he hired for his administration. Trump’s lies got him the very slim plurality that he lies about being a “landslide” — he made this absurd claim at the UN the other day, when he also claimed he had to decide whether to kill every Iranian person. American Presidents simply do not act like this or say things like this–and it’s not some “deep state” thing. When established and experienced government employees explain why he can’t just do as he pleases, they are called the “deep state”–as if they are some kind of arbitary obstacle to Trump’s allegedly rightful exercise of power. Less than half of Americans voted for him, and a strong and consistent majority do not approve of him of his handling of our economy or the stupid war he started based on a lie he keeps repeating. Since he took office, all he has done is mess up–one failure after another–one court battle after another, which he keeps losing because he keeps trying to act like a king.
CNN, MSNOW and Politico point out all of these things–which are true–which is their job. That’s not “hating” Trump–it’s telling the truth that Trump doesn’t like. He is failing badly, has alienated our allies, made an enemy of Canada, one of our oldest allies and trading partners, and his stupid war has driven up the cost of fuel, the cost of food–everything–with no end in sight. Trump does NOT belong in the White House because, in addition to being a lously leader and failed businessman, he is a chronic, habitual liar, a socipathic narcissist, a racist, misogynist and he exists to seek personal aggrandizement, attention and praise. You literally cannot believe anything he says because it likely is a lie. He treats our White House like it is his personal property with which he is free to do as he pleases, which he thinks includes tearing down the East Wing without any permission from historical preservation or Congress and building a vanity ballroom, after lying about previous presidents wanting it. He is also a convicted felon and not only ignorant of the Constitution–he doesn’t care what it says. Worse than that, he has no respect for the law or Congress for things like the JFK Center For Performing Arts that was established by Congress to honor our slain president who was a patron of the arts. His fragile ego causes him to be insanely jealous of handsome, charismatic and popular John F. Kennedy, so he tries to steal Kennedy’s glory by firing most of the JFK Center Board and replacing them with sycophants who voted to put his name above Kennedy’s. When a court ordered it removed, he covered up the name, and is threatening to tear it down unless he receives honor and recognition. Congress already appropriated money to make repairs and maintenance, and Trump’s involvement isn’t wanted or needed. If he puts his name on the place, boycotts of performers and audiences will continue–so he will probably tear it down. Then, there’s the vainglory arch that Trump is now trying to claim will be used for a sniper’s nest, launching pad for drones and ammunition storage—thinking this will get past a court stopping him. He has latched onto the phrase “national security”, to defend against his illegal acts and which he claims is the reason for the ballroom, the arch and blocking CNN, MSNOW and Politico.
The disinformation comes from MAGA media, set up by American oligarchs to defend Trump, to push back against legacy and non-MAGA media because the wealthiest want to protect their financial interests–huge tax breaks, eliminating consumer and environmental protections, rolling back of regulations or not having them enforced. So, they keep putting out the message that CNN, MSNOW and Politico engage in “disinformation”—what “disinformation”?
The Court issued an injunction against Trump to restore the press credentials of CNN, MSNOW and Politico–and, guess what? When journalists from these outlets tried to access the White House, they were turned away.
Anybody can be a team player if you are the one that appointed all the team
Let them in. Put them in the back of the room. Never call on them. If they get disruptive, kick them out. They have a right to ask questions and he has a right to ignore them.
I agree. I did that to my nagging wife and now she is no longer in my life. Works like a charm
Ditto: Trump could mandate a seating arrangement in the pressroom with the Fake News Core in the back rows and never call upon them.
He could also pronounce that they are a security risk therefore are set to the back away from the President.
The Court can’t do anything about that.
Hurt feefees aren’t a security problem. Given Trump wears pull-ups, he should be grown up enough to deal with people who expose his failures.
Trump cannot help himself from calling on them. He needs to bully people to feel good about himself and with a target in the room his mouth cannot be kept shut. He could have ignored them all this time – but the only way to fix that problem is to remove the temptation. The difficulty in Trump’s emotional outburst is he knows it makes him look weak and stupid, but he cannot help himself.
Good narrow decision applicable to all tabloids. I don’t watch it anymore. It’s injurious to my soul and spirit wounds.
DOJ agreed possibly the decision is unassailable. The news groups have returned?
So we had a Trump-appointed judge who made “the only decision that he could make in light of controlling precedent”. Maybe, but what if the controlling precedent was wrong in the first place? But assume for the moment it was the correct, if not right, thing to do. So why don’t I have any trust that an Obama- or Biden-appointed judge would have made the same decision if a Democrat President had revoked access for some Conservative news outlets? It may have been the correct decision in light of controlling precedent, but Liberal judges in recent years have proven they are willing to ignore all prior controls if doing so allows them to reach their preferred decision.
https://www.politico.com/news/2026/09/24/politico-barred-from-white-house-after-court-ruling-restoring-access-01091263
Are you equally concerned about our President directly violating court orders?
I wish he violated me. Im lonely and needy.
The order was issued at 2:30 in the morning and those ‘reporters’ went straight over and tried to get in before the WH staff had been updated. It is all worked out now and they are in.
The President was not attempting to violate the court order. Or were you simply attempting to misinform everyone, just like the fake news Politico that you like to follow?
https://storage.courtlistener.com/recap/gov.uscourts.dcd.296754/gov.uscourts.dcd.296754.26.0.pdf
Evidence of non-compliance. How did I misinform anyone? Your move?
To me, rulings based on precedent alone are poorly thought-out decisions if not outright laziness on the court’s part. “Because we said so”, doesn’t always mean the OPINION of the previous court automatically passes Constitutional muster. Plessy, Dread, and more recently Roe and Chevron, come to mind. Perhaps Sullivan should be reviewed again (and soon!) Too much libel disguised as ‘speech’ is now allowed on the books, so-to-speak.
Dred, not dread. Although I don’t dread the misspelling. lol
It’s a TRO, not precedent setting; depending on precedent alone is sufficient. Doing more than that requires a court case and arguments from both sides. No judge is going to do more than that on a TRO.
The judiciary screwed up years ago when the meaning of “liberty interest” was interpreted as the right to do stuff instead of the real liberty interest, which is freedom from physical constraint like a jail. People are at liberty when they can move around. Liberty has nothing to do with a “right” to be present at press conferences. If you are excluded, you’re not in jail. You’re free to go about your life.
Nonsense. There is no First Amendment violation here and I do not need a law degree to understand the difference between a right and a privilege. Apparently, many judges need to go back to law 101 to grasp this fact. However, since the judges in the country simply refuse to do the right things, then the fix is “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.” JUST STOP ALL THE PRESS FROM ENTERING THE WHITE HOUSE. Case closed. Let’s see a judge try and force a press conference. If they do (and many are stupid enough to try) then the fix is also easy – send no spokesperson t the podium. Let some judge try and force that. We are in dangerous territory when the judicial branch “force” the executive branch in it own house. It is scary what judges are doing to this once great nation. Judges are THE problem in America.
Trump did that for 350 consecutive days in his first term.
When l think about all of what President Trump hopes for, it brings Chuck Yeager to mind. He was determined to get the Bell X-1 beyond subsonic. Trump is determined to push the boundaries of Article ll as far as the constraints of Articles l and lll will permit. And he has had substantial success with Article lll and some with Article l. It is his energy that shakes people up. He is in all the rooms at the same time. I hope he sees what Johnathan does, that being in the speech room with a fake news argument is counter productive to beefing up the Article ll envelope.
Dear Mr. Turley, my heart gave a very glad beat when I read Pres. Trump had kicked out MS NOW, CNN and Politico. These poor crybabies had their collective toes stepped on and they didn’t like it. I thankful Pres. Trump did it. However, they will not have a change of heart. Their money flow comes from the Trump hating left and that’s too precious to lose.