The Trump administration on Tuesday said that it has a right to ban journalists from MS NOW, CNN and Politico from White House grounds, arguing “access to the White House is a privilege — not a right.”
In a filing late Tuesday opposing the news organizations’ request for a temporary restraining order, the Trump administration said President Donald Trump’s actions “were not retaliatory because the Government would have taken the same action anyway, notwithstanding Plaintiffs’ speech criticizing the President.”
The filing continued: “Indeed, the President has not revoked access to other outlets that have equally criticized the President.” The government also argued that the plaintiffs have received “adequate notice and post-deprivation process, including an opportunity to contest the President’s factual findings.”
The new filing from the government comes a day before U.S. District Judge Timothy Kelly is set to hear arguments over the news organizations’ bid to block the ban and immediately restore access and credentials to the affected journalists.
It is part of an escalating war against the media by the Trump administration that includes an unusual review of broadcast licenses, the ejection of news organizations from the Oval Office and Pentagon, and moves to slash money for public broadcasters.
The three banned news organizations — MS NOW, CNN and Politico — jointly filed a lawsuit Monday, alleging that the White House ban violated both the First Amendment and the due process clause of the Fifth Amendment. They are asking Kelly to reverse the ban and restore both access and credentials to the affected reporters.
Lawyers for MS NOW, CNN and Politico argued that the ban retaliates against the three news organizations for coverage the administration deemed negative in an effort to chill future reporting.
“President Trump has said in no uncertain terms that he disapproves of ‘negative’ coverage that ‘diminish[es]’ him and would prefer coverage that only praises him and his policies,” they wrote in a court filing. “But the Constitution does not allow a president or any other government official to deprive the press of their First Amendment rights and liberty and property interests with no notice or process based solely on the official’s dislike of the content of their reporting.”
This is the first time a White House has banned entire news organizations from the premises. But this is not the first time Kelly has weighed the legality of the White House arbitrarily confiscating a journalist’s credential.
In 2018 the White House revoked then-CNN correspondent Jim Acosta’s credential, prompting CNN to file a similar lawsuit. Kelly ordered the White House to temporarily restore the reporter’s access, finding that the White House had not given him due process.
At the time, the Trump administration argued the confiscation was lawful.
“No journalist has a First Amendment right to enter the White House and the President need not survive First Amendment scrutiny whenever he exercises his discretion to deny an individual journalist one of the many hundreds of passes granting on-demand access to the White House complex,” the government wrote in a court filing.
The Trump administration is making a similar argument now. The White House published a press release Monday, claiming that access to the complex is a privilege, not a right.
“No president is required to host a hostile operation on the grounds,” the release said. “Access has always been a privilege — and President Trump is applying that rule.”
In the past, the U.S. Circuit Court of Appeals for the District of Columbia ruled that the White House may not arbitrarily deny a journalist a press credential to the building, finding that press access to the White House is protected by the First Amendment and may not be revoked without due process.
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