The White House Press Pool Is Not a Loyalty Test
President Trump’s longstanding attacks on the media have reached a constitutional breaking point
Last Friday, as he is wont to do on these blissful afternoons, Donald Trump set off a five-alarm fire again. Without warning, he unilaterally banned CNN, MS NOW and Politico from the White House. Press access revoked.
You’re not the only one with a feeling of déjà vu. I was part of the team that litigated this very issue in 2018 when I worked on PEN America v. Trump, which upheld journalists’ right to challenge presidential threats and acts of retaliation against the media.
In that case, PEN America alleged at least five instances where Trump abused the executive branch’s regulatory and enforcement powers to punish journalist speech. These included his threats to revoke broadcast licenses, interference with press access to the White House and a directive to the Justice Department to take enforcement actions against outlets whose coverage he disliked.
The fact patterns are largely the same now: Trump ejects reporters. Reporters sue Trump. The court slaps down Trump’s unconstitutional First Amendment violations.
On Thursday, Judge Timothy J. Kelly — a Trump appointee — rejected the administration’s initial rationale as insufficient and ordered the White House to restore press access for CNN, MS NOW and Politico. The court ruled that the White House must “immediately return, reinstate, and restore” the outlets’ access as they met the legal thresholds to obtain a short-term order in effect for 14 days (which is called a temporary restraining order) while the case continues.
So this case isn’t novel, but Trump’s antics are breaking through to more people. I can’t help but think this is due to the sheer volume of his tantrums and the escalating opposition to his censorial actions.
A lot has gone as one might expect, given Trump’s many go-arounds with reporters in court. Trump’s consistently been on the losing side in nearly all of the First Amendment cases brought before courts during his second term.
But the current case isn’t over — and there’s so much happening behind the scenes. If you’re a First Amendment nerd like me, you’ve been rapt watching it all unfold.
So let me break it down for you, answer a few questions I’ve been hearing a lot and look where this is all heading:
Why is ejecting journalists unconstitutional?
Because access cannot become a loyalty test.
Trump barred CNN, MS NOW and Politico journalists from the White House after accusing their outlets of publishing “fake news.” (Yawn.) The administration says the outlets can simply report from outside the building.
In a subsequent interview clip last week, Trump flippantly called the White House “the people’s house” — little did he realize that his own words bolstered the journalists’ legal case. Because the government can’t close access for the media simply because it doesn’t like their questions, their coverage or their attitude. Once the government creates a press-access system, it cannot selectively punish journalists because of their coverage.
The legal term for this is “viewpoint discrimination” — i.e., the government’s preferential treatment based on the message or belief. And the Supreme Court has repeatedly called viewpoint discrimination one of the First Amendment’s most serious violations.
The government doesn’t get to say: You may cover us, but only if we approve of how you cover us. If it does, that’s blatant speech suppression.
Is “national security” a credible argument?
It can be — but in this case, the court had serious doubts that it was the real reason behind Trump’s tantrum.
That was one of the sharpest issues in this week’s hearing. The Justice Department argued that the president needs authority to act immediately when a journalist’s conduct threatens national security, and that White House access is a privilege, not a right. The government cited reporting on classified or sensitive matters and argued that the president must retain broad discretion over who enters the White House.
But Judge Kelly pressed: Is the government protecting national security, or finding reasons after the fact to justify removing reporters? Ted Boutrous, counsel for the journalists, noted that the government used national security as a “talisman” and “magic words” to justify Trump’s actions last week.
That distinction has deep roots in First Amendment law. The well-known New York Times Co. v. United States case from 1971 — better known as the Pentagon Papers case — established an extraordinarily high barrier to prior restraint of publication based on national-security claims. And as far back as the 1930s, the Supreme Court has consistently held that the government cannot suppress disfavored journalism simply by invoking the public interest.
What happens next?
The most consequential development may be what happens beyond CNN, MS NOW and Politico.
Trump has already threatened to withhold access for other outlets, explicitly naming The New York Times and The Washington Post. The administration has also kicked reporters out of the Pentagon and fought with the Associated Press over its refusal to adopt the president’s preferred terminology for large bodies of water.
What happens when a government keeps narrowing the circle of journalists permitted to observe it — and the remaining outlets are expected to accept those terms?
History offers an uncomfortable warning. Authoritarian governments rarely need to abolish the press outright. They control access, reward friendly coverage, punish independent reporting and make journalists compete for proximity to power. Eventually, the distinction between an independent press and a government-approved one begins to erode.
The White House press pool exists precisely because no single journalist or outlet can follow a president everywhere. When access becomes a presidential favor rather than a professional function, the president gains leverage over what the public gets to see.
It’s encouraging that the press itself is beginning to use access as a collective bargaining tool, asserting some power in the solidarity of refusing to cover a president who so desperately wants to be covered. After the White House excluded the three outlets, the television networks comprising the presidential press pool — including Fox News — suspended coverage of Trump’s events in protest. At one point, journalists were physically present for a presidential event but declined to film it.
So these signs of resistance are welcome. But the larger issue transcends this one case. It’s about whether U.S. journalism will kowtow to the government cherry-picking access as a loyalty test. The First Amendment protects the press precisely because presidents cannot make that decision.
About the author
Nora Benavidez leads Free Press’ democracy, free speech and tech initiatives, including its policy, legal and campaign efforts to curb disinformation, hate and other manipulation online while protecting digital civil rights, privacy and free expression. Follow Nora on Bluesky.
Teamwork
Compiled by Pressing Issues editors
Midnight marauders. Late Thursday night, Free Press and other core partners in the Block the Merger coalition filed an amicus brief calling for a federal court in California to reject the consent decree that 12 state attorneys general struck earlier this week with Paramount Skydance and Warner Bros. Discovery. The coalition submitted the brief after Judge Araceli Martínez-Olguín granted their emergency motion to weigh in on the consent decree’s many shortcomings.
“The court should reject this deal outright. It doesn’t address the anti-competitive concerns that state attorneys general themselves identified in their initial lawsuit,” Free Press Co-CEO Jessica J. González said. “Nor does it bring this dangerous merger into compliance with the law. It’s full of weak and unenforceable behavioral conditions that will not protect workers, creatives or consumers.”
For a recap of this week's merger news, the Free Press blog published a detailed update, written by Ruth Livier, Ph.D. and Qing Saville.
Ruth Livier, Ph.D.
Finding new media models. Over at the Knight First Amendment Institute, Free Press Vice President and General Counsel Matt Wood writes that in a time of playing defense against authoritarianism and corporate consolidation of media, the push to create new media models that counter the current atmosphere has never been more urgent.
“Because we can’t limit the size and reach of all corporate journalism companies, and we recognize the pitfalls and dangers in trying to do so, Free Press has never been solely focused on striving for a more perfect corporate media,” Wood writes. “We need a more complete view of the journalistic ecosystem to compensate for the limits of corporate owners, publishers, and speakers.”
Matt Wood
The kicker
“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. [...] Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.” —Justice Hugo Black, New York Times Co. v. United States (1971)
