Trump's Ban on CNN, Politico, and MS NOW is Plainly Unconstitutional: Is it Also Important?
On Friday of last week, President Trump announced via Truth Social that he was "banning . . . CNN, MS NOW . . . and Politico . . . from the White House" in response to what he regards as their allegedly inaccurate reporting about him and his administration. Needless to say, the ellipses and words outside the quotation marks mask the much more piquant way in which the president expressed himself. To wit:
In short order, reporters for the three news organizations found that their "hard passes" granting access to the areas of the White House ordinarily open to properly credentialed journalists with security clearances had been deactivated. Wasting little time, yesterday the three news organizations filed a lawsuit. The complaint is compelling. It sets forth three distinct legal claims: (1) because there is a liberty or property interest in the hard pass, it cannot be canceled without notice and an opportunity to be heard (i.e., procedural due process), both of which were denied; (2) the cancellations were improper retaliation for protected free speech; and (3) the cancellations are a viewpoint-based restriction on access to government property, which is impermissible even when such government property is a non-public forum.
In short order, reporters for the three news organizations found that their "hard passes" granting access to the areas of the White House ordinarily open to properly credentialed journalists with security clearances had been deactivated. Wasting little time, yesterday the three news organizations filed a lawsuit. The complaint is compelling. It sets forth three distinct legal claims: (1) because there is a liberty or property interest in the hard pass, it cannot be canceled without notice and an opportunity to be heard (i.e., procedural due process), both of which were denied; (2) the cancellations were improper retaliation for protected free speech; and (3) the cancellations are a viewpoint-based restriction on access to government property, which is impermissible even when such government property is a non-public forum.
I could explain why each of those claims is likely to be successful but the exercise would be fairly tedious and would simply repeat what's in the complaint. Notably, the key to both the second and third claims in the complaint is that Trump was motivated by disagreement with and/or disapproval of the protected speech of the plaintiff organizations. In normal times, proving illicit motive is challenging but, needless to say, these are not normal times.
The complaint includes a footnote directing the reader to a video hosted on the White House's own website. For roughly the first half of the hour-long session, a seated Trump and members of his administration standing behind him tout an announcement about most-favored nation pricing on pharmaceuticals. During the Q&A (at the 53:16 mark), a reporter asks what exactly his ban on CNN, MS NOW, and Politico entails. The 80-year-old president pretty obviously can't hear what she is saying or figure out what she's asking about until the third repetition. At the point at which he realizes what she is asking, he says "Oh, the ban on the free press, right?"
If that were not a sufficiently smoking gun, Trump proceeds to ramble through an explanation of what he thinks is dishonest about the news coverage by the targets of his ban, with one tiny problem: he gives three examples, none of which involve CNN, MS NOW, or Politico. They involve, respectively, ABC, CBS, and the BBC. And of course, the first two examples are absurd.
Trump cites the multi-million-dollar settlements he extracted from ABC and CBS for, respectively: airing a segment in which George Stephanopoulos said Trump had been found in a civil suit to have committed rape (when the actual finding was sexual assault, a legal term the trial judge himself said was colloquially equivalent to rape); and promoting a 60 Minutes interview with Kamela Harris by editing between her answers to different questions. All reasonably well informed lawyers who are not in the tank for Trump understand that ABC and CBS essentially submitted to extortion by paying these settlements rather than risk regulatory retaliation. Trump is correct that the BBC did misleadingly splice together his January 6, 2021 speech, but that is hardly worth anything approaching the $10 billion in damages he seeks. And to repeat the main point, it has nothing to do with CNN, MS NOW, or Politico.
Accordingly, if the courts follow the law, an injunction will issue shortly, and reporters for the three disfavored organizations will have their credentials restored.
But suppose that doesn't happen. Suppose the plaintiffs draw a Trump-friendly judge who finds some procedural or other ground for denying relief. What exactly is at stake for the news organizations?
Trump routinely calls reporters (especially female ones) such terms as "dumb," "not a smart person," "terrible," and "ugly" if they ask him any question he doesn't want to answer. Even when he does answer questions, he typically rambles in ways that are completely unresponsive. Accordingly, one might think that participating in the charade of questioning Trump is actually harmful. It provides the illusion of normality and transparency. From this perspective, serious news organizations should have been boycotting Trump's press availability, in which case they wouldn't have been in a position to be banned.
To be sure, White House press credentials allow reporters to talk to people besides the president. I recently read Regime Change by Maggie Haberman and Jonathan Swan. A great deal of what they report about the inner workings of the Trump administration comes from sources inside the administration who did not wish to be identified. Access to such people is essential for investigative reporters like Haberman and Swan to do their job.
Even so, I very much doubt that White House insiders were talking in confidence to Haberman and Swan while they were in the White House. It seems much more likely that they met in private elsewhere or communicated via Signal or some other clandestine means. Physical access to the White House is probably only marginally helpful for investigative journalism.
The White House ban also excludes the three news organizations from the television pool (in which CNN has been a primary member and MS NOW a secondary member) and the print pool (in which Politico has been a member). These exclusions are significant less for the access now denied than for the prestige associated with them. Stripping the plaintiff organizations of the ability to participate in the press pool is a means of signaling that they are somehow less substantial than the outlets that remain.
Overall, the loss of White House press credentials does not materially disrupt the ability of the plaintiff organizations to report on Trump or his presidency, but that is not to say either that they should lose their lawsuit or that the action is unimportant. There are plainly enough concrete consequences to support a successful outcome in court.
As for importance, it would be shortsighted to note that the loss of White House access is a less consequential penalty than, say, the disapproval of a multibillion-dollar merger (which is the threat that led CBS to pay mere millions to Trump to settle his frivolous 60 Minutes suit). Stripping White House press passes from reporters with disfavored news organizations may be a mostly symbolic move, but it is of a piece with Trump's all-out effort to silence anyone who dares criticize him or even report completely factual information about the incompetence, corruption, or cruelty of his administration.
With each blow the bully lands, it becomes harder to resist further blows. CNN, Politico, and MS NOW were right to resist, and it is encouraging to see other news organizations (including Fox) standing with them.
-- Michael C. Dorf