Three news outlets ask court to extend block on White House press ban

Filing alleges selective enforcement despite judge’s order

CNN, MS NOW, and Politico asked a federal court on Monday for a preliminary injunction extending the block on the Trump administration’s enforcement of a White House access ban that began Sept. 19. The 42-page filing, submitted by attorneys for the three outlets, argued that a two-week temporary restraining order issued by U.S. District Judge Timothy Kelly last week should remain in force until the underlying lawsuit is resolved.

“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 three outlets wrote in the filing, according to the Associated Press. The attorneys asked the court to extend the block until the case is finally resolved, arguing the ban “is an unlawful assault on the most fundamental First Amendment freedoms” that would cause irreparable harm to the outlets and to the public if not restrained.

The filing alleged that the White House has continued to selectively enforce the ban even after Kelly’s order. It cited the administration’s removal of CNN from its designated television network pooler duties on Sept. 26 — a step the filing said came “to the detriment of CNN, its fellow pool members and, ultimately, the American public.”

CNN had been removed from the broadcast pool when the ban was first implemented. The broadcast pool consists of CNN, ABC, CBS, NBC and Fox News. The other networks then suspended the pool until CNN was restored. CNN covered the president’s appearance with Chinese leader Xi Jinping at the National Archives on Friday. On Saturday, the White House barred the network from Air Force One for the president’s trip to a college football game in Tennessee. The remaining pool outlets declined to provide a replacement.

“Because CNN was excluded and no replacement designated, no primary television network pooler accompanied the President on the trip,” the filing said. It said CNN “received no official communication from the White House explaining its exclusion.”

In a statement emailed to the Associated Press after the filing, Theodore J. Boutrous Jr., the lead attorney for the three outlets, called the ban “a blatant violation of the First Amendment and due process.”

“The president and his administration have continued to make clear that this ban has only one purpose: to punish reporting he doesn’t like,” Boutrous said. “That’s retaliation and viewpoint discrimination, pure and simple.”

Boutrous added that, with Kelly’s temporary restraining order expiring this week, “it is critical to ensure that the White House continues to be prevented from implementing this unconstitutional ban on the free press.”

The filing came a day after Attorney General Todd Blanche made clear the White House would not back down from its position that the ban was justified. “When it comes to the White House, it is the people’s house,” Blanche said in a Sunday interview on ABC. “It is a privilege, and not a right, to be there.”

Blanche also defended the decision to bar CNN from Air Force One. “The president has every right to decide who gets to fly on his plane,” he said. Blanche said Trump was “sick and tired of certain media outlets just refusing to report accurate news” and added that coverage he described as “misinformation” amounted to a national security issue. “That is what is a national security problem, when you have complete misinformation coming out of the White House,” he said.

In his order last week granting the temporary restraining order, Kelly wrote that “the court is skeptical … that defendants’ interest in safeguarding national security is the actual motivation” for the removal of access. His ruling did not directly address the television pool rotation.

The networks in the broadcast pool have been handling the standoff on a case-by-case basis, according to a person familiar with the pool’s operation who spoke on condition of anonymity. Fox covered a pool event Sunday; NBC was covering the president in the Oval Office on Monday. CNN was not in the rotation again until Thursday. If the network is barred from another pool event, the networks will decide together, presumably based on the newsworthiness of the situation, whether to provide a replacement or to refrain from coverage.

David A. Schulz, director of the Media Freedom and Information Access Clinic at Yale Law School, said the networks face limited choices. If the White House continues to bar CNN, he said, the networks may choose “to exert their market power and say, ‘We’re not going to play ball with you.’” The question, Schulz added, is: “Who’s going to back down first?”

RonNell Andersen Jones, a law professor at the University of Utah, said the networks “may well feel like they’re between a rock and a hard place.” Capitulation, she said, “might be perceived as abandonment of core components of press freedom,” while “the practicalities of lengthy White House news blackouts are also complicated, and refusing to cover major news at the highest levels of government might itself feel like a failure to serve the goals of democracy.”