The Court is not bound to display the kind of naive certainty that ordinary citizens are allowed to hold.
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 was “banning” CNN, MS NOW, and POLITICO from the White House. And sure enough, when reporters from those outlets who hold “hard passes” enabling them to work there arrived the following day, entry was refused. Consequently, Plaintiffs—three news organizations and three individual hard-pass holders who work for them—quickly sued the President and several Executive Branch officials, alleging violations of their rights under the Fifth and First Amendments. They also sought a temporary restraining order reinstating their hard passes, which the Court granted. The Court, applying Sherrill v. Knight, 569 F.2d 124, 130–31 (D.C. Cir. 1977) and subsequent authorities, held that Plaintiffs were likely to prevail on their claim that the hard passes were pulled without the due process required by the Fifth Amendment, that they would suffer irreparable harm without interim relief, and that the balance of the equities and the public interest favored the Plaintiffs.
Now before the Court is Plaintiffs’ motion for a preliminary injunction. The Court grants that motion as well, finding that Plaintiffs are likely to succeed not only on their due process claim, but also on their two First Amendment claims. Yet, no one should read the Court’s ruling as endorsing President Trump’s concerns about accuracy and fairness in the media’s reporting, or as signaling that the government lacks power to safeguard national security when classified information is unlawfully disclosed. Nevertheless, for the reasons that follow, the Court will extend the relief already issued, maintaining the status quo as the case moves forward.
Unlike the earlier decision granting the temporary restraining order, which rested solely on the Plaintiffs’ Due Process Clause rights, this ruling also addresses the First Amendment. An excerpt from the court’s conclusion that the Administration probably retaliated against the Plaintiffs for their speech:
“The First Amendment forbids government officials from taking retaliatory actions after the fact against individuals for engaging in protected speech.” The government “may not deny a benefit to a person on grounds that infringe his constitutionally protected interests—especially his freedom of speech.” And even actions that are ordinarily permissible may become unconstitutional if performed as retaliation for exercising a First Amendment right.” …
[It] is likely that President Trump’s revocation of Plaintiffs’ hard passes is the kind of measure that would deter a reasonable reporter or news organization from publishing stories that he objects to. The withdrawal of their hard passes has a significant impact on how, whether, and to what extent they can perform their jobs. As Plaintiffs state, a hard pass is essential for White House coverage because it provides reporters “immediate, unescorted access to the areas of the White House complex designated for the press.” Without such passes, Plaintiffs would miss newsworthy events that often occur at the White House with little or no notice. In fact, the effect on Plaintiffs’ ability to report is so pronounced that, in Sherrill and Karem—the leading D.C. Circuit precedents regarding hard passes and the Due Process Clause—the loss of a hard pass without adequate process is treated as implicating a separate constitutional interest. And if a one-month suspension from the White House grounds feels “like an eternity in today’s news business,” then a continuing ban like the one here would chill a reporter’s coverage.
President Trump’s own remarks suggest that he intended the revocation to influence how Plaintiffs reported on him, strengthening the argument that the action was sufficient to deter a reporter of ordinary resolve from continuing to cover events in the same manner. After explaining that he excluded Plaintiffs from the White House because they “purposely write negative news … to try and diminish the Republicans and a Republican administration,” President Trump said he was prepared to take the “ban … as far as you can,” but would “love it” if they could “straighten themselves out.” …
Defendants also lean on an out-of-state case to contend that the President’s decision to revoke the hard passes and bar them from the White House grounds is not sufficiently chilling to satisfy the retaliation element. In Baltimore Sun Co. v. Ehrlich (4th Cir. 2006), Maryland’s governor prohibited White House reporters associated with a newspaper from speaking with a journalist and a columnist because his press office believed they were not objectively reporting on his Administration’s performance. The Fourth Circuit described the directive as a pervasive feature of journalism and so commonplace that letting a retaliation claim proceed would “plant the seed of a constitutional case in virtually every interchange.” …
When President Trump first announced the ban, he framed it as a response to their ongoing “reporting” of “FAKE NEWS.” He wrote that Plaintiffs should not be allowed to continually publish or disseminate FICTION and LIES while covering the President of the United States, the Trump Administration, or the United States of America. The next day, when asked if there was a specific reason for the ban, he said there was none—it’s really just a cumulative set of stories from the last two years… they “purposely write negative news,” and they do so because they want to diminish Republicans and a Republican administration. And he remarked, we’ve done a fantastic job; look at the numbers, look at the economy. We have more money coming into our country today than ever before. His posts on September 21 emphasized “Fake News,” arguing that Plaintiffs had trivialized and demeaned his accomplishments, including a 2024 re-election victory. “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, notwithstanding President Trump’s other complaints about the Plaintiffs, they have failed to show causation—arguing that the decision to revoke the hard passes would have been made “even without” the protected conduct. They maintain that their “alternative ground” for revoking the passes rests on Plaintiffs’ alleged failure to maintain minimum professional journalistic standards by publishing classified and national security information. …
[But] there is no evidence in the record that President Trump made the decision to revoke the hard passes on national security grounds from the outset, nor has he ever stated that national security was the reason. When he announced the ban on September 18, he did not mention national security. When questioned later that day about the “particular reason” for the action, he did not mention national security. And while it is true that, days later, he used the phrase “national security” in subsequent social media posts about the ban, that phrasing appears to have been another way to describe Plaintiffs’ alleged inaccuracies and unfairness in reporting on matters like his achievements or electoral success. All of this suggests that “national security” was likely a post-hoc justification for the decision, which weakens the claim that the action would have been taken anyway in the absence of Plaintiffs’ protected speech—even if it is not dispositive on that question.
Second, Defendants cite the September 22 letters to Plaintiffs as evidence that President Trump or another official would have taken the same action for national security reasons regardless of the protected speech. Those letters, issued four days after the ban, describe a case for revoking the hard passes based on alleged violations of “the standards of professionalism and decorum expected of those granted access to the White House Complex,” including “trafficking in verifiable falsehoods about national security and other issues,” and “publishing sensitive or classified information.” Yet the letters nearly fail to move the needle on this issue. They appear to conflate concerns about otherwise protected speech with national security concerns….
Third, Defendants attempt to buttress their case with the September 22 letters’ “non-exhaustive list of reporting incidents” tied to each outlet—”including those that have threatened national security and/or spread falsehoods.” They also rely on the Declaration of Kingsley Wilson, then-Press Secretary for the Department of Defense, later known as the Department of War. These sources likewise fall short for Defendants’ purposes.
In Wilson’s declaration, she explains how publishing classified and sensitive information can undermine national security. She describes a decision by the Department of War to alter how reporters access the Pentagon to counter the publication of such information. She also states that, in her view, that policy—whatever its exact details (which are not disclosed)—has achieved success. The problem is that Wilson’s declaration provides little to nothing about President Trump’s decision to revoke the Plaintiffs’ hard passes, nor about White House press practices or operations. She notes that “it is reasonable” to expect similar results from the White House adopting a comparable policy, but she does not claim to know much about White House procedures or the President’s decision here. Thus, even if, after speaking with people who work there, she believes the policy would be effective in reducing the publication of information that harms national security, it does not establish that the President would have acted in the same way absent the Plaintiffs’ protected speech. She also offers conclusory statements that, based on three reporting incidents memorialized in the September 22 letters, the three outlets have shown a willingness to publish information relating to national security—specifically, the security of the White House, the President, and other senior officials—but she provides no further specifics.
Viewed as a whole, neither the September 22 letters nor Wilson’s declaration convincingly demonstrate that President Trump would have revoked the Plaintiffs’ hard passes and banned them from the White House even without the kind of reporting he criticized when he announced the ban. They do not support a finding that a national-security-based ban was in the works before the announcement.
The reporting incidents described in the letters span roughly eighteen months. One of the reporters even had her hard 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.” Even accepting Defendants’ claim that such reporting could pose some national-security risk—and, as discussed below, the evidence for that claim is weak—such reporting is routine, for better or worse. Finally, even if President Trump or another official would have banned the Plaintiffs regardless of their protected speech, Defendants would not have needed to scramble to justify the action with unsigned letters and a declarant who does not work at the White House.
As the Supreme Court has reminded in considering the government’s rationale in another context, the Court is “not required to exhibit a naiveté from which ordinary citizens are free.” Freed from such naiveté, it is not hard to conclude that President Trump likely banned the Plaintiffs from the White House because he believes their reporting to be generally inaccurate and biased against him. On balance, the Court thus finds the Plaintiffs are likely to succeed on their First Amendment retaliation claim.
And for similar reasons, the court also concluded that the Administration’s actions were likely unconstitutional as viewpoint discrimination in a nonpublic forum (a conclusion aligning with the D.C. Circuit’s precedents on the matter):
For the reasons discussed elsewhere, it is likely that the Plaintiffs were selected by President Trump for revocation of their access to the White House press area because he dislikes their portrayal of him and his administration—i.e., it was an attempt to suppress speech with which he disagrees—rather than to satisfy any other purported compelling governmental interest, including upholding professional standards for journalism 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.
