Why Trump’s ban on media outlets faces Constitutional hurdles

CNN, MS NOW and Politico have sued Trump and other top White House officials over the ban.

WASHINGTON - US President Donald Trump’s decision to bar a trio of prominent news organisations from the White House for what he deemed “fiction and lies” has put a spotlight on how far a president can go in restricting media access.

A federal judge in Washington, DC, held a hearing on Sept 23 to weigh arguments on a request from CNN, MS NOW and Politico to lift the ban while a lawsuit they filed proceeds. US District Judge Timothy J. Kelly, a Trump appointee, didn’t rule from the bench but expressed doubts that the White House had afforded the media outlets due process. 

The news outlets have sued Trump and other top White House officials, arguing that the revocation of their press passes violated the US Constitution’s guarantees of due process and freedom of the press. The broader press corps has rallied behind the three outlets.

The escalating battle marks the president’s latest attempt to put constraints on journalists who Trump claims have treated him unfairly. The administration also has limited the media’s longstanding access to the Pentagon and barred some reporters from covering the G-20 summit. And Trump has sued the New York Times, the Wall Street Journal and the BBC for defamation, claims the news organizations have said are without merit.

In a Truth Social post on Sept 18, Trump said the three outlets would be barred from the White House, citing what he called years of “fake news”. Their reporters were denied entry when they sought to enter the White House grounds the next day, and their credentials were disabled or confiscated.

In response, the organisations sued Trump, White House Chief of Staff Susie Wiles, Communications Director Steven Cheung and Secret Service Director Sean Curran in federal court in Washington, DC. The organisations alleged the US government illegally retaliated against the news outlets over speech protected by the Constitution’s First Amendment. They also claimed the government violated the Fifth Amendment, which guarantees the right to due process, by withdrawing access without notice or a chance to respond.

The lawsuit stated that Trump’s ban was based on “one simple reason: He dislikes the content of their coverage of him and his administration.”

The three organisations asked the court to immediately restore their credentials while the case proceeds.

ABC News, CBS News, NBC News and Fox News suspended their usual arrangement in which they, on a rotating basis, provide television footage of presidential events to a wide range of news organisations. They took the action after the White House prevented CNN, the fifth member of the pool, from carrying out an assigned shift. 

In a rare joint statement, the networks said that no administration should restrict a news organisation over objections to the outlet’s reporting.

Dozens of news organisations, including Bloomberg News, Dow Jones and Reuters, signed on to an amicus brief submitted to the court in support of the banned outlets.

The Constitution doesn’t give every journalist an unrestricted right to enter the White House, but outright bans are highly unusual and generally at odds with the First Amendment. 

The White House can restrict press access for reasons such as security or space. Administration officials also can choose whose questions to answer and, in some circumstances, which reporters receive close access at limited-space events such as Oval Office meetings or travel aboard the president’s plane, Air Force One.

But courts have held that once the government creates a system for press credentials, it can’t administer the system arbitrarily.

The lawsuit filed by the three media outlets cites a 1977 case, Sherrill v. Knight, in which the federal appeals court for Washington, DC, held that the White House isn’t required to open its doors to reporters. If media facilities are made available, however, access can’t be denied only to certain members of the media, the court ruled. 

In their lawsuit, CNN, Politico and MS Now say they were singled out when their existing passes were revoked because of their reporting.

The administration defended the ban, saying in a Sept 22 court filing that White House access “is a privilege – not a right” and that the outlets’ passes were revoked over alleged professionalism and national-security concerns, not their criticism of Trump. The White House argued that the outlets received adequate after-the-fact notice, face no irreparable harm, and therefore aren’t entitled to emergency relief. 

In court filings and at the Sept 23 court hearing, an administration lawyer said that the news outlets’ credentials were revoked for “trafficking in verifiable falsehoods about national security, and publishing sensitive or classified information”. 

At the hearing, Theodore Boutrous, an attorney for the news outlets, argued that national security concerns weren’t mentioned in Trump’s original social media post and were inappropriate in this context.

In their lawsuit, the news organisations say Trump retaliated against them for protected speech. They allege the government engaged in what’s known as viewpoint discrimination by punishing them over what Trump deemed unfavourable coverage.

The Supreme Court has held that it is unconstitutional for the government to restrict speech based on content or viewpoints. That means that the government is prohibited from suppressing speech about a specific topic or a particular point of view.

Courts have repeatedly required due process before journalists’ White House credentials can be withdrawn. In 2018, the same Judge Kelly temporarily restored CNN correspondent Jim Acosta’s White House pass after finding CNN was likely to succeed on its Fifth Amendment claim. Kelly didn’t rule on the merits of CNN’s First Amendment claim in that case.

In 2020, the federal appeals court for Washington, DC, reinforced those protections in another case, Karem v. Trump, when it affirmed that a reporter from Playboy whose White House pass was suspended wasn’t given fair notice. The case reinforced the requirement that credential sanctions should rest on meaningful, known standards, not ad hoc decisions.

Courts have allowed entire categories of media to be treated differently, however. That’s why the Trump administration was able in 2025 to eliminate the position on the presidential press pool that had been dedicated to wire services and had guaranteed a rotating spot for Bloomberg, the Associated Press and Reuters. That came right after a court rejected the White House’s attempt to bar only the AP from the pool for refusing to adopt the president’s renaming of the Gulf of Mexico as the “Gulf of America”.

In a ruling that could potentially help Trump’s new effort to restrict media outlets, a divided federal appeals court in 2025 allowed the president to continue limiting the AP’s access to places including the Oval Office and Air Force One. The court said restricted presidential spaces such as the Oval Office aren’t First Amendment forums accessible to the general public and that the White House has broad discretion over who enters them. BLOOMBERG