CNN, MS NOW and Politico to sue Trump administration over White House access

CNN

By Katelyn Polantz, Brian Stelter, CNN

(CNN) — The three national news outlets President Donald Trump banned from the White House — CNN, MS NOW, and Politico — are filing a critical First Amendment lawsuit to restore their access.

The emergency request is set to go before a federal judge in the DC District Court and could result in hearings and legal arguments from the administration as soon as this week.

“This ban could not be a more direct assault on the First Amendment nor a more blatant violation of our most fundamental constitutional principles,” the outlets said in a draft of their lawsuit, which is asking the court to act immediately to revive their journalists’ access to the White House.

The lawsuit will allege Trump’s ban violates the First Amendment and the Constitution’s due process protections.

“This morning, we notified the government that we are filing a lawsuit today to protect our First Amendment rights and defend the principle that the government does not decide what the press reports or publishes,” the three news organizations said in a joint statement on Monday.

“Without notice or process, the White House revoked our journalists’ credentials because it objected to our reporting,” the news outlets said. “Left unchallenged, this threatens press freedom and the public’s right to independent journalism free from government interference.”

The standoff is one of the administration’s most high-profile attacks on the press to date, with implications extending far beyond the three banned news outlets. Trump said last Friday, when he announced the ban, that he might add others to the list.

CNN, MS NOW and Politico reporters are unable to access their workspaces inside the White House. CNN and MS NOW are also blocked from using their television equipment and camera locations on the grounds.

CNN was removed Monday from pooled coverage responsibilities that are shared by major news outlets. CNN was scheduled to have TV pool duty and travel with the president to New York on Monday.

“The ban inflicts an injury on all news media organizations—which now risk a similar fate if they engage in fact-based, independent reporting the President deems insufficiently favorable,” the outlets said in a draft of a request for a temporary restraining order that is expected to be filed on Monday.

“And the public at large suffers for however long the unconstitutional ban restricts access to current and complete information about the government.”

CNN has reached out to the White House for comment on the lawsuit.

Some first amendment and legal experts have already widely called the ban unconstitutional and condemned it as abrupt, discriminatory and harmful to the media’s ability to cover national issues.

The lawsuit from the outlets is expected to rely heavily on the vague reasoning for revoking access that Trump gave on Friday, saying he didn’t like “negative stories.”

“If they want to write them, that’s fine. I don’t have to let them into the people’s house,” the President also said.

At least one Trump administration official said in a TV interview Sunday that he believed a Supreme Court opinion from 1965 about the government refusing to validate passports for travel to Cuba would support Trump’s stance.

After Trump announced he was barring the three outlets from the White House because he didn’t like their coverage, reporters’ press passes to access the White House grounds were deactivated.

On Saturday, MS NOW reporter Akayla Gardner, CNN reporter Betsy Klein and Politico reporter Cheyenne Haslett each tried to enter the White House grounds to cover news and were denied entry by the Secret Service, which seized their press passes.

Similar prohibitions that Trump and other White House officials have attempted to put on individual reporters or outlets have been rejected by the courts, even recently. The courts have been clear that journalists cannot be prohibited from covering the White House because of what they say or publish in the coverage itself.

A fight over press freedom

The current dispute centers on a First Amendment legal concept known as viewpoint discrimination, since Trump has been explicit about his reasons for wanting to ban certain outlets over coverage he deems “negative.” Courts have forbidden viewpoint discrimination and protected the rights of journalists in case after case.

The DC District Court, where the three news outlets’ case will land on Monday, has several judges who’ve ruled in favor of press freedom and against the Trump administration for discriminatory policies, especially since Trump took office last year.

The law previously set by the federal appellate court in DC has said the White House also can’t revoke press credentials without giving the journalists due process, especially when areas of the White House are accessible to the general press and there isn’t a national security concern.

That case law dates to 1977, when the Secret Service revoked the press pass of Robert Sherrill, a reporter for The Nation. The federal courts in Washington restored it, with the DC Circuit Court of Appeals ruling at the time, “denial of a White House press pass is violative of the first amendment only if it is based upon the content of the journalist’s speech or otherwise discriminates against a class of protected speech.”

“Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information,” the court also wrote.

In Trump’s first term, journalists Jim Acosta, who worked for CNN at the time, and Playboy correspondent Brian Karem had their press passes suspended, triggering lawsuits. In Trump’s second term, The Associated Press was denied access to the Oval Office and Air Force One, also kickstarting litigation.

The courts largely sided with the journalists in every case, based upon the 1977 precedent, though the courts haven’t gone so far to say that White House press pass access can be unfettered.

Monday’s draft legal filings pointed to the precedent set in the Acosta case to argue that the press badge deactivations under the current ban are unconstitutional.

The First Amendment attorney who represented CNN in court during the Acosta case in 2018, Ted Boutrous, has been brought on board by CNN, MS NOW and Politico for Monday’s lawsuit.

The three news organizations have emphasized that their coverage of the Trump administration will continue regardless of the access restrictions.

“CNN’s mission to report on the U.S. government will continue regardless of any attempts to restrict physical access to the White House and other government buildings, or any other attempts to impede our journalism,” CNN said in a statement over the weekend.

This story has been updated with additional information.

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