WASHINGTON — An attorney for three news organizations told a federal judge Thursday that the Trump administration must be prevented from barring their reporters from the White House, saying the ban is a classic example of “viewpoint discrimination” that is punishing people for what they say — and violating the media outlets' First Amendment rights.
The hearing was the latest development in the escalating drama between the Trump administration and the news media, which has raged in various arenas during his second term as president. At its core, though, are multiple free-speech questions. The dispute has produced sanctions and restrictions on White House and Pentagon reporters and led to several lawsuits that are progressing through the federal court system.
U.S. District Judge Timothy Kelly said he intended to rule by Tuesday, possibly sooner, on whether to extend his earlier order restoring White House access for journalists from MS NOW, CNN and Politico. Granting the news outlets' request for a preliminary injunction would preserve the status quo — access — until the litigation is resolved.
Kelly, nominated to the bench by Republican President Donald Trump, didn't say how he intends to rule but described key government arguments as an “uphill climb” and a “tough lift." The judge also challenged a government attorney to specify the national security concerns that the administration claims are at stake.
“We've always been clear that it's not just national security,” Justice Department attorney Michael Velchik said, arguing that false reporting can impact policy and adversely affect national security.
“He doesn’t mind negative press stories if he deserves them. He has problems with trafficking verifiable falsehoods,” Velchik said of Trump.
Theodore J. Boutrous, an attorney for the media plaintiffs, said the government was continuing to discriminate against viewpoints and reporting it doesn’t like.
“He doesn’t like scrutiny of his policies, he doesn’t like the reporting, he wants more good press,” Boutrous said in court. That’s a content-based restriction on speech and a clear violation of the First Amendment, he said.
Velchik said some of the issues the White House has with the banned news organizations’ reporting include “quotations that are not actually said,” the use of anonymous sources and splicing interviews to insert different questions than what the interviewee was actually asked. “I do think that we’ve identified specific allegations for each individual outlet,” he said.
The hearing was made available to media and the public via a public access number, but the audio was often so faint as to be unintelligible.
Three-week saga continues
The case has been going on since last month, shortly after Trump banned the outlets from the White House grounds, saying he objected to their reporting.
The news organizations want longer-term relief until the entire case is resolved, and a temporary restraining order was due to expire on Thursday. But the judge extended it until Tuesday and said he intends to rule by then on whether to issue the preliminary injunction.
The hearing before Kelly came nearly three weeks after CNN, MS NOW and Politico were abruptly banished from White House grounds, with the president decrying their “fake news.” A spokesperson for CNN said the network had been allowed to fulfill its pool duties on Tuesday, and is next scheduled for Sunday.
Although the journalists were allowed back in by Kelly’s order, the administration continued to selectively exclude CNN from its duties in the White House broadcast pool. A spokesperson for CNN said the network had been allowed to fulfill its pool duties on Tuesday, and is next scheduled for Sunday.
Kelly had granted a two-week temporary restraining order against the ban, but it expires Thursday. The outlets have asked the court to halt the ban until the case is resolved, saying the administration has "persisted in unpredictably and inconsistently implementing its ban" despite the restraining order — including selectively keeping CNN from participating in White House pool duties.
“The White House’s words and actions leave little doubt that it will immediately reinstitute a complete ban of CNN, MS NOW, and POLITICO if allowed the opportunity,” lawyers for the networks wrote in a filing on Sept. 28.
At issue is whether the president, or anyone, can punish news outlets for the content of their reports. The news organizations say that doing so is “viewpoint discrimination" forbidden by the First Amendment's free-speech protections.
Trump insists that he doesn't have to let news outlets whose reports he dislikes onto White House grounds. “When it comes to the White House, it is the people’s house,” Attorney General Todd Blanche said on ABC recently, invoking an argument the administration has made since the beginning. “It is a privilege, and not a right, to be there.”
The news organizations say that approach violates the Constitution's amendments protecting free speech and due process.
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Noveck reported from New York and Boone from Boise, Idaho. Laurie Kellman in London contributed.
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