Following an effort to keep CNN entirely out of the White House, including the main press briefing room, President Trump has barred CNN from traveling with him on Air Force One. This move, however, is one he is quite likely permitted to make.
As many readers will recall, last year Trump expelled the AP from the Oval Office press pool because the AP had refused (in my view, appropriately refused) to refer to the Gulf of Mexico as the “Gulf of America.” A majority of a D.C. Circuit panel concluded that this was constitutionally permissible, both with regard to the Oval Office and to Air Force One. An excerpt from that 2025 ruling (AP v. Budowich):
The White House is likely to succeed on the merits because these restricted presidential spaces {Oval Office, … Air Force One, and … the President’s home in Mar-a-Lago} are not First Amendment fora opened for private speech and discussion. The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted.
The majority explained that those spaces differ from some more broadly open areas within the White House complex:
Reporters and photographers have long been permitted access to the White House complex to cover the President and his administration. The White House manages access by requiring journalists to obtain a press credential called a hard pass. More than one thousand journalists hold hard passes, through which they may access spaces such as the James S. Brady Briefing Room, where the White House Press Secretary delivers regular briefings.
Hard pass holders may also sign up via a reservation system to attend larger events hosted in the East Room, which is often used for meetings with foreign leaders, executive order signings, and press conferences. Because the White House has opened these press facilities “to all bona fide Washington-based journalists,” hard passes may not be denied arbitrarily or based on the content of a journalist’s speech. Sherrill v. Knight (D.C. Cir. 1977)….
When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint. Sherill v. Knight.
On the other hand, we have never suggested that there are any First Amendment restrictions on “the discretion of the President to grant interviews or briefings with selected journalists.” Sherrill. In deciding which journalists to speak with, the President may of course take into account their viewpoint. If President Trump sits down for an interview with Laura Ingraham, he is not required to do the same with Rachel Maddow. The First Amendment does not control the President’s discretion in choosing with whom to speak or to whom to provide personal access. It is a time honored and entirely mundane aspect of our competitive and free press that public officials “regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters’ expression.” The Baltimore Sun Co. v. Ehrlich (4th Cir. 2006).
These uncontested principles provide the framework for assessing the AP’s claim that the Oval Office and other restricted spaces become nonpublic fora [in which viewpoint discrimination is forbidden -EV] when the White House selects a small group of journalists (such as the press pool) to be present for observational newsgathering and reporting…. The Oval Office is the President’s office, over which he has absolute control and discretion to exclude the public or members of the press. As the district court explained, the Oval Office “is a highly controlled location … shrouded behind a labyrinth of security protocols,” which “few members of the public will ever” enter. The President uses the space for myriad purposes, including speeches, signing ceremonies, and meetings with senior officials or heads of state. When events in the Oval Office are broadcast to the public, they feature the President’s speech and expressive activity.
It hardly needs to be said that the Oval Office, Air Force One, or even the East Room are not places “traditionally open to assembly and debate,” nor are they open to the public for expressive activity…. Only about one percent of hard pass holders can fit in spaces like the Oval Office. When access to government property is very limited, considerations of viewpoint may be permissible….
{Both the AP and the district court at various points suggest that if the White House maintains something like the press pool, it must allow access on a viewpoint neutral basis. For the reasons already explained, a group of journalists observing presidential events is not a forum of any sort. Accordingly, the White House should not have to choose between excluding all journalists and admitting journalists under the restrictions of a nonpublic forum. By recognizing the distinctions between different fora “we encourage the government to open its property to some expressive activity in cases where, if faced with an all-or-nothing choice, it might not open the property at all.”} …
The messages conveyed in the Oval Office are government speech and opportunities for the President’s administration to express its message. “When government speech is involved, forum analysis does not apply and the Government may favor or espouse a particular viewpoint.” … Choosing who may observe or possibly speak with the President in these spaces is not the type of action that supports a retaliation claim. Rather, it is more akin to a decision about how the President wields the bully pulpit….
To be sure, CNN has also contended that the revocation of its reporters’ White House press passes violated the Due Process Clause as well as the First Amendment. Indeed, the judge’s Thursday morning order requiring the White House to reinstate those press passes relied on the Due Process Clause, and did not reach the First Amendment. (The D.C. Circuit Sherrill v. Knight decision, which the judge relied on Thursday and which AP v. Budowich discussed, concluded that denial of a White House press pass based on viewpoint would violate both the First Amendment and the Due Process Clause.)
Nevertheless, the logic of the D.C. Circuit AP v. Budowich decision appears to extend equally to the Due Process Clause. The Sherrill precedent explicitly linked the First Amendment and Due Process claims:
In our view, the procedural requirements of notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial are compelled by the foregoing determination that the interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the first amendment. This first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment.
AP v. Budowich concluded that there was no protected First Amendment interest in access to the Oval Office or Air Force One (as opposed to obtaining a White House press pass more broadly), drawing a parallel to the President’s power to decide which reporters to grant personal interviews. It would appear, then, that there would likewise be no protected Due Process Clause interest, just as reporters cannot claim a Due Process violation if the President decides to stop granting interviews to them.
Finally, note that, just as the precedents that limit the revocation of White House press passes do not apply to exclusion from the Oval Office and Air Force One, the terms of the Thursday order likewise extend only to White House press passes:
Defendants (except for President Trump) and their agents, representatives, and all persons or entities acting in concert with them shall immediately return, reinstate, and restore the White House “hard pass” press credentials held by employees of CNN, MS NOW, and POLITICO that were revoked on or about September 18, 2026, until further Order of the Court or the expiration of this Temporary Restraining Order.
Therefore, the President’s decision regarding Air Force One does not violate the district court’s order and sits in line with DC Circuit precedent. None of this makes the President’s move wise, but it remains constitutionally permissible.
