CNN, MS NOW and Politico prevail against White House — for now

A federal judge ruled late Tuesday that President Trump cannot ban news organizations from covering him at the White House because he does not like the nature of their coverage - at least, not until the matter goes to a formal trial.

U.S. District Court Judge Timothy J. Kelly found that Trump's decision to bar more than 70 journalists from CNN, MS NOW and Politico violated their fundamental free speech in two separate ways as well as their due process rights. Both rights are enshrined in the Bill of Rights to the U.S. Constitution.

The news organizations sued last month after the Trump administration denied them access. The judge granted a temporary restraining order to CNN, MS NOW and Politico on Sept. 24.

Kelly pointed repeatedly to Trump's own public statements and social media posts to construct his conclusion that Trump was not responding to national security concerns. Instead, he wrote, Trump sought to pressure news outlets to cover him more favorably by stripping them of press credentials to gain access to the White House.

"President Trump's own comments suggest that he intended the revocation of Plaintiffs' hard passes to alter their reporting on him, bolstering the case that his action here is sufficient to deter a reporter of ordinary firmness from reporting in the same way she had before," Kelly wrote in the opinion.

He later continued, "[T]he ban threatens to cut off all Plaintiffs' access to the White House press area -- a space open to many of their competitors -- thereby restricting their ability to observe happenings there firsthand, immediately report on those activities, and try to engage with government officials."

Theodore J. Boutrous, the noted First Amendment attorney representing the three U.S. news outlets, had argued in court last week that Trump was the best witness his clients could offer for their case - because the president was so blatant about not liking the tenor of their coverage. Late Tuesday, after the release of Kelly's ruling, he hailed the judge's words.

"When the President issued his 'ban on the free press,' he blatantly and explicitly violated due process and the First Amendment," Boutrous said in a statement shared with NPR.

"Since then, the President has repeatedly, candidly, and consistently admitted in public that he banned our clients from the White House to punish reporting he doesn't like and to try to force journalists to cover him in ways he prefers," Boutrous wrote. "The harm this ban did to our clients, the First Amendment, and the public as a whole is profound."

The White House did not immediately return NPR's requests for comment. Nor did the president speak publicly about the ruling in the first hours after the ruling was released.

Kelly, a Trump appointee, turned aside the U.S. Justice Department's arguments invoking national security concerns and the objections the White House took with their reporting. Trump has said coverage is framed in a way to drag him down and make his Democratic critics look good.

The judge also rejected the department's claims that the court should not weigh in on such matters. Kelly had ruled against the Trump administration during the president's first term in office on a related matter involving efforts to bar then CNN White House correspondent Jim Acosta. And Kelly pointed to other precedents that he said must guide his conclusions, even as the Justice Department argued in court they were wrongly decided.

Even so, Kelly took pains to note that he did not utterly dismiss those as valid governmental concerns.

"No one should interpret the Court's decision to suggest that President Trump's concerns about accuracy and fairness in the media's reporting are unfounded," Kelly wrote, "or that the government is powerless when its true aim is to protect national security when classified information is unlawfully disclosed."

Even so, Kelly found that the White House's actions to put the president's words into practice had caused a kind of irreparable harm. Trump was not required to admit the reporters to the White House. Once they were credentialed to do so, under earlier court rulings, those credentials could not be stripped away simply because the president or other administration officials do not like their coverage.

The Justice Department invoked national security only in court filings days after the White House acted against the reporters. And the news outlets were neither given fair warning of what was ahead nor a means to object ahead of time. The White House communications office sent letters expressing concern over accuracy and what it said were national security disclosures days later and gave the journalists several days to respond and appeal.

Kelly wrote that the Justice Department's presentation was inadequate to make a compelling case. And he said that after-the-fact notification did not constitute an adequate process to be warned about consequences and to appeal the punishment.

"It is not hard to conclude that President Trump likely banned Plaintiffs from the White House because he believes that their reporting is generally inaccurate and biased against him," Kelly wrote. And that, he wrote, represents a form of unlawful retaliation.

The ruling did not, however, address the question of the administration's periodic refusal since the ban to permit CNN's journalists into smaller spaces where the full press corps cannot fit simultaneously, such as Air Force One or the Oval Office.

That has made it impossible for CNN to serve as the designated representative of the video pool.

The pool - made up of CNN and four competitors (ABC, CBS, Fox and NBC) - share costs and logistical obligations to capture video of Trump at every public appearance, even in tightly held locations.

Even after Kelly earlier issued a temporary restraining order compelling the administration to allow the reporters back into the White House, the order was observed unevenly. CNN was periodically blocked by the administration from representing the pool either generally or in tight spaces. In one recent instance, CNN was blocked from accompanying Trump aboard Air Force One on a trip to Tennessee.

The three major U.S. news organizations sued shortly after reporters for the outlets reported their credentials, which give them daily access to the White House, were confiscated.

The administration has waged a multi-front battle against the press, including an early review of the broadcast licenses for ABC's local TV stations that could lead to them being revoked. It also forced news outlets out from the Pentagon when they did not agree to withhold any reports that had not been authorized for release ahead of time. The administration has launched investigations of all major networks — including NPR — except Fox, which is controlled by Rupert Murdoch, the president's ally, and successfully pressured the Republican leaders of Congress to pull back all federal funds for public media.

Last week, the Department of Justice said it was investigating five major television networks - CNN, ABC, CBS, NBC and Fox News, alleging that they have broken antitrust laws when they decided to stick together after the president banned CNN.

As a private citizen, Trump has sued the New York Times, CNN, the Des Moines Register, the BBC, and Wall Street Journal (also owned by Murdoch). ABC settled a Trump lawsuit ahead of his return to office and CBS settled days before its corporate owner received the green light from Trump's pick as the nation's chief broadcast regulator to sell itself to its new owners, allies of the president.