[T]he Court is not obliged to adopt a naïveté from which ordinary citizens are free.
From Judge Timothy Kelly (D.D.C.) today in CNN, Inc. v. Trump:
On September 18, 2026, President Trump announced on social media that he was “proud to announce that, effective immediately,” he would “ban” CNN, MS NOW, and POLITICO from the White House. And as expected, when reporters affiliated with those outlets—who possess hard passes permitting them to work inside—arrived the next day, they were turned away. In response, the Plaintiffs—the three outlets and three individual hard-pass holders employed by them—sued the President and several Executive Branch officials, alleging violations of their Fifth and First Amendment rights. They sought a temporary restraining order to restore their passes, which the Court granted. Relying on Sherrill v. Knight, 569 F.2d 124, 130–31 (D.C. Cir. 1977) and subsequent authority, the Court held that the Plaintiffs were likely to succeed on their due-process claim for revocation without the process due under the Fifth Amendment, that they would suffer irreparable harm without interim relief, and that the balance of equities and the public interest favored granting relief.
Now before the Court is the Plaintiffs’ motion for a preliminary injunction. The Court grants that motion as well, finding not only a likely success on the due-process claim but also on the Plaintiffs’ two First Amendment theories. Nevertheless, the Court’s ruling should not be read as endorsing any claim that President Trump’s concerns about media accuracy and fairness are unfounded, nor as implying that the government has no power to safeguard national security when classified information is improperly disclosed. With that caveat in mind, the Court, for the reasons described below, will extend the relief already in place, thereby maintaining the status quo while the case moves forward.
Unlike the earlier ruling granting a TRO, which rested solely on the Due Process Clause, this decision also resolves in the Plaintiffs’ favor on First Amendment grounds. An excerpt from the Court’s determination that the Administration’s revocation of the hard passes likely amounted to retaliation for the Plaintiffs’ speech:
“[T]he First Amendment bars government officials from acting retroactively to punish individuals for engaging in protected speech.” The government “may not deny benefits to a person for reasons that infringe his constitutionally protected interests—most notably, his freedom of speech.” And even discretion that is ordinarily permissible can become unconstitutional if exercised as retaliation for the exercise of a First Amendment right.” …
[I]t is likely that President Trump’s withdrawal of the Plaintiffs’ hard passes constitutes conduct that would discourage a reasonable journalist or a news organization from covering topics he objects to. The withdrawal of these passes matters greatly for how, whether, and to what extent the Plaintiffs can perform their roles. As the Plaintiffs describe, a hard pass is essential for White House reporting because it affords reporters “immediate, unescorted access to the press-designated areas of the White House complex.” Without hard passes, the Plaintiffs would miss numerous newsworthy events that occur with little notice. Indeed, the impact on the Plaintiffs’ ability to do their jobs is so pronounced that, in Sherrill and Karem—the leading D.C. Circuit authorities on hard passes and the Due Process Clause—the loss of such a pass without due process was treated as implicating a separate constitutional interest. And if a one-month suspension on White House grounds can feel like “an eon in today’s news business,” then an indefinitely broad ban is likely to chill reporting.
The President’s own remarks indicate that he intended the revocation to influence how the Plaintiffs reported on him, reinforcing the case that his action is enough to deter a reporter of ordinary resolve from continuing to cover him in the same manner. After explaining that he excluded the Plaintiffs because they “purposely write negative news … to try and diminish the Republicans and a Republican administration,” President Trump commented that he is prepared to extend the ban as far as possible, but that he would “love it” if they would “straighten themselves out.” …
Defendants also rely on a foreign-circuit case to argue that Trump’s decision to revoke the hard passes and ban the outlets from the White House grounds was not sufficiently chilling to meet the retaliation element. In Baltimore Sun Co. v. Ehrlich (4th Cir. 2006), Maryland’s governor barred anyone in the state’s executive branch from speaking to a particular newspaper’s reporter and columnist because the press office believed they failed to report objectively on the Administration. The Fourth Circuit found the directive at issue—“select[ing] among reporters when granting interviews or providing access to nonpublic information”—to be a pervasive feature of journalism and “so commonplace” that allowing retaliation claims here would “plant the seed of a constitutional case in virtually every interchange.” …
When President Trump initially announced the ban, he described it as a response to the outlets’ ongoing “FAKE NEWS” coverage. He stated that the Plaintiffs “shouldn’t be able to constantly write or report FICTION and LIES when they’re covering the President of the United States, the Trump Administration, or the United States of America.” The following day, when asked for a specific justification beyond the ban itself, he replied that there was no single reason beyond “cumulative stories over the last two years” and that the outlets “purposely write negative news” to undermine Republicans and their Administration. In subsequent posts on September 21, he again targeted “Fake News” and claimed the outlets had trivialized and demeaned his achievements, including a claimed Landslide re-election victory in 2024. His discussions about the ban, including a Time magazine interview, continued to frame the outlets as failing to give him proper credit, even if he had “done a fantastic job.” “If I do the finest thing, if I found the cure to cancer, they would say, ‘Why didn’t he move quicker?’” …
Defendants respond by arguing that, despite Trump’s other complaints, the Plaintiffs have not shown causation because the President or another official “would have made the same decision … even in the absence of the protected conduct.” They posit that an alternative ground for stripping the hard passes rests on the Plaintiffs’ alleged failure to meet minimum professional journalistic standards by publishing classified or national security information …
[But] first, the record contains no evidence that the decision to revoke the Plaintiffs’ hard passes was made with national security as the initial reason, nor is there a direct statement that national security was the basis for the action. When he announced the ban, the President did not cite national security. When pressed about the particular justification later that day, he did not mention national security. Although the term “national security” surfaces in later posts, it appears to have been another way to describe alleged inaccuracies and unfairness in coverage of his accomplishments. All of this undermines the view that national security would have driven the same action absent the protected speech, even if it does not decisively settle the point.
Second, the September 22 letters sent to the Plaintiffs are offered as evidence that the same national-security rationale would have applied regardless of protected speech. These letters lay out a case for revoking the passes based on alleged breaches of “standards of professionalism and decorum” and for “trafficking in verifiable falsehoods about national security and other issues,” as well as “publishing sensitive or classified information.” Yet the letters themselves do not meaningfully advance this point. They appear to conflate concerns about protected speech with concerns about national security.
Third, Defendants attempt to corroborate their theory by citing the “non-exhaustive list of reporting incidents” included in the September 22 letters for each outlet, along with the Declaration of Kingsley Wilson, the then-Press Secretary for the Department of Defense (formerly the Department of War). These materials, however, fall short of establishing that the decision would have been the same in the absence of protected speech.
In Wilson’s declaration, she explains how publishing classified and sensitive information can undermine national security and describes how the Pentagon altered access for reporters to counter such publications. She also notes that the policy, in broad terms, has achieved its intended effect, though the specifics are not laid out. The problem is that Wilson’s declaration provides little to nothing about the White House press practices or the President’s decision here. She merely offers that it would be reasonable to expect similar outcomes from a White House policy modeled after the Pentagon’s approach, but she does not assert knowledge about the White House’s operations or the President’s particular action. Thus, even if her view on the policy’s potential efficacy were correct, she does not advance evidence that the White House acted in the same way here to reduce publication of sensitive information.
Viewed against the entire record, neither the September 22 letters nor Wilson’s declaration convincingly show that the President would have revoked the Plaintiffs’ passes or banished them from the White House even without the conducts defendants criticize. The described incidents go back as far as a year and a half, and one of the reporters had her pass renewed six months after publishing a January 2026 piece titled “Inside Plans to Rebuild the ‘Top-Secret’ Bunker Beneath the White House East Wing.” Moreover, even granting defendants’ premise that reporting of this type can pose some risk to national security—an assertion they have not robustly substantiated here—such coverage is not unusual in the national press. Finally, it seems likely that if the President or another official would have imposed a ban absent the plaintiffs’ protected speech, the defendants would not have needed to rummage through unsigned letters and rely on a declarant who does not work at the White House to make their case.
As the Supreme Court has suggested in evaluating a government justification in a different context, the Court is “not required to exhibit a naiveté from which ordinary citizens are free.” Freed from such naiveté, it is not difficult to conclude that President Trump likely barred the Plaintiffs because he believed their reporting to be generally inaccurate and biased against him. For that reason, overall, the Plaintiffs are likely to prevail on their First Amendment retaliation claim.
And for similar reasons, the court also concluded that the Administration’s actions were likely unconstitutional viewpoint discrimination in a nonpublic forum (a conclusion that aligns with the D.C. Circuit’s precedents on this issue):
For the reasons stated elsewhere, it is likely that the Plaintiffs were selected for removal from the White House press area due to President Trump’s belief that their coverage of him and his Administration is broadly inaccurate and biased—in other words, an attempt to suppress the speaker’s activity because of disagreement with the speaker’s viewpoint—instead of any true “compelling governmental interest,” including maintaining professional standards for journalists or protecting national security.
Ted Boutrous, Katie Townsend, Patrick J. Fuster, Connor S. Sullivan, and Connor P. Mui (Gibson, Dunn & Crutcher LLP) represent the media.
