Johnathan Turley
Judge Timothy Kelly, a Trump appointee, issued a Temporary Restraining Order yesterday in CNN, Inc. v. Trump to restore the access of CNN, MS NOW, and Politico to the White House. As I previously explained, it was the only decision that he could make in light of controlling precedent from the D.C. Circuit in Sherrill v. Knight (D.C. Cir. 1977). The White House will have to get either the D.C. Circuit to overturn the long-standing precedent or get the Supreme Court to do so. Neither is likely.
On September 18, 2026, President Trump announced in a social media post that, “effective immediately,” he was “banning” the news organizations CNN, MS NOW, and POLITICO “from the White House.” I criticized the move at the time and discussed how the move ran against the grain of controlling precedent. All of the networks, including Fox News, boycotted the White House in opposition to the move.
The move set a dangerous precedent that could be used against other media, including conservative media in the future. While the Biden Administration constantly attacked Fox News, it never banned it entirely from the White House. Indeed, when President Barack Obama barred Fox from one event, all the networks joined in boycotting the White House until Fox’s access was restored.
For decades, the courts have acknowledged that the White House is not a “public forum” but rejected that access could be denied arbitrarily or based on viewpoint discrimination.
As previously discussed, in Sherrill v. Knight, the United States Court of Appeals for the District of Columbia considered a ban on Robert Sherrill, a reporter for The Nation. The D.C. Circuit held “White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the First Amendment guarantee of freedom of the press . . . requires that this access not be denied arbitrarily or for less than compelling reasons.”
Even cases that have supported the Administration reaffirmed this line. Last year, the D.C. Circuit ruled for the White House in Ateba v. Leavitt. Journalist Simon Ateba challenged White House credentialing requirements after he was denied a permanent “hard pass.” The appeals court found that, as a nonpublic forum, such a denial was permissible.
However, the Court in Ateba rejected the notion of “unbridled discretion” in such denials. Citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985), the Court still reaffirmed that “[a]s a nonpublic forum, access to the White House Press Area “can be restricted as long as the restrictions are viewpoint neutral and reasonable.”
Likewise, after the Trump White House denied access to CNN correspondent Jim Acosta, a federal judge (and Trump appointee) ordered the White House to restore the press pass due to the lack of due process and notice.
The D.C. Circuit also considered such denials in the case involving the Associated Press when the Administration barred access to Air Force One and the Oval Office after AP refused to change references to the Gulf of Mexico to Gulf of America.
In Associated Press v. Budowich, the D.C. Circuit noted:
In Sherrill, we held that the “White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the [F]irst [A]mendment guarantee of freedom of the press” attached, requiring that “access not be denied arbitrarily or for less than compelling reasons.” 569 F.2d at 129 (cleaned up).
AP initially prevailed before District Judge Trevor McFadden, also a Trump appointee, who ruled that the ban probably violated the First Amendment. He wrote that “under the First Amendment, if the Government opens its doors to some journalists – be it to the Oval Office, the East Room, or elsewhere – it cannot then shut those doors to other journalists because of their viewpoints.”
A divided panel of the D.C. Circuit later lifted the injunction by stressing that Air Force One and the Oval Office are very specific locations subject to greater discretion and controls. However, the court stressed that Sherrill is still good law and bars arbitrary denials. The litigation is still ongoing.
This is why Judge Kelly, as a lower court judge, had no alternative to ruling for the media litigants under binding precedent. He did so, however, on the narrowest grounds (which is also what courts are supposed to do in constitutional cases). Rather than addressing the more sweeping question under the First Amendment of viewpoint discrimination, Judge Kelly found the order issued on social media to be a denial of due process:
Plaintiffs have shown a likelihood of success, at least on their Fifth Amendment procedural due process claim. The merits of this claim are assessed in two steps: “the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Plaintiffs have shown they are likely to succeed at both steps.
As for the first, the D.C. Circuit held in Sherrill v. Knight (D.C. Cir. 1977) that “the interest of a bona fide Washington correspondent in obtaining a White House press pass … undoubtedly qualifies as [a] liberty [interest] which may not be denied with-out due process of law under the fifth amendment.” And if there were any doubt about what Sherill meant, the D.C. Circuit more recently reaffirmed this conclusion in Karem v. Trump (D.C. Cir. 2020), holding that “a duly issued hard pass may not be suspended without due process.”
It would be ideal if the White House would simply let this one go without further litigation. President Trump has made impressive gains in executive power in prior opinions, including Trump v. Slaughter, which overturned the 1935 precedent limiting a president’s power to fire executive branch officials in Humphrey’s Executor v. United States.
President Trump could lose presidential territory over this challenge if it goes to the Supreme Court. The odds are against the Administration, and he could increase, rather than reduce, media rights over access to the White House. It is, of course, possible that a slim majority on the Court could support him, but I think that it is unlikely.
There is also a political dimension to this controversy. The move may be playing well with many in the President’s base, but it is not playing well with the key independents and moderates that Republicans need in the midterm election. There is a great deal of grumbling on the Hill privately that this does not make matters easier for the party as it struggles to hold on to at least one house in the midterm.
It is never easy to get a president to drop a high-profile stance, particularly this President. However, this is how Las Vegas casinos make their money: getting gamblers to double down on a bad hand to recoup their money. It would be far better for the Administration (and future presidents) for President Trump to walk away from the table. He can count some major wins under Article I and could well have some additional victories in the making this term. That would be a better focus of the efforts of the Justice Department.
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