Timothy Kelly must block the White House ban on news outlets
By Adele Rutherford · Reporting from Atlanta ·
CNN and other news organizations ask a federal court to stop Donald Trump from using access as a tool to punish critical reporting.
Procedure is the shield
The trouble with a privilege argument is that it treats government machinery like a private club. Attorney General Todd Blanche spoke to ABC on Sunday. He said the White House is "the people's house." He argued access is "a privilege, and not a right." This vocabulary belongs in a country club meeting, not a republic. Blanche claimed President Donald Trump has "every right to decide who gets to fly on his plane." He called critical coverage a "national security problem." This reads the limits of state power backwards. If access is a mere privilege, the First Amendment is just a suggestion.
On September 19, the administration banished CNN, MS NOW, and Politico. The timing was not subtle. CNN covered the president and Chinese leader Xi Jinping on September 25. The next day, the White House barred CNN from Air Force One.
It also blocked the network from the television pool. The targeted outlets filed for a preliminary injunction on September 28. A preliminary injunction is a court order that stops an action until a trial concludes.
They asked Judge Timothy Kelly to extend his temporary restraining order. A temporary restraining order is a short-term mandate that preserves the status quo.
The legal mechanism is not new. Consider the Revocation of Jim Acosta's press credentials in 2018. The parallel to CNN v. Trump is direct.
The executive branch revokes access without due process to punish reporting. Due process is the requirement that the state must respect all legal rights owed to a person. In 2018, Judge Kelly found the reporter received no prior notice.
Today, the administration has expanded the sweep. It now targets three corporate entities and corrupts the broadcast pool.
The fiction of national security
Government filings often use administrative convenience to hide behind martial necessity. The White House justified the ban by citing national security. Judge Kelly was right to be skeptical.
He wrote that he doubted national security was the "actual motivation" for the ban. Theodore J. Boutrous Jr. is the lead attorney for the outlets. He called the ban a "blatant violation" of the First Amendment. He argued its sole purpose is to punish reporting the president dislikes.
This is viewpoint discrimination. The state distributes benefits like briefing room seats and pool rotations. It cannot condition these benefits on a recipient muting its criticism. That builds an invisible tollbooth on public debate.
The administration claims absolute control over internal property. The Attorney General insists the president can pick his passengers. Yet even property management is bound by the Constitution. A public official cannot use state machinery to silence critics.
This brings us to the hard geometry of institutional survival. Law professor RonNell Andersen Jones noted a difficult choice. Capitulation feels like abandoning press freedom. Yet refusing to cover the government fails the duty to inform the public.
Professor David A. Schulz asked who will back down first. Other networks suspended the pool in solidarity when the White House barred CNN. Fox covered a pool event on Sunday. NBC covered the Oval Office on Monday. CNN was scheduled for the rotation on Thursday.
Solidarity is fragile when the cost is total exclusion from the news.
The test of the tool
A rule that only works for your friends is no rule at all. Precedents outlast administrations. If this White House can ban MS NOW today, the next can ban its rivals.
Procedure is where power lives. Due process stands between administrative whim and the rule of law. Judge Kelly should extend the injunction because the government must not pick its own watchdogs.