The White House Media Ban—and the Antitrust Investigation of the TV Networks Opposing It—Offend the Rule of Law

Without facts you can’t have truth. Without truth you can’t have trust. Without these three you don’t have a shared reality, you can’t have journalism, you can’t have democracy.

— 2021 Nobel Peace Prize laureate Maria Ressa

For almost 60 years, the White House Press Secretary has provided journalists on the White House beat with special press credentials that allow them to use an expedited security line and enter without escort the While House press briefing room, press offices and certain other locations in and around the White House.

On the afternoon of Friday, September 18, 2026, President Trump suddenly announced on social media that this access would no longer be afforded to journalists from CNN, MSNOW and Politico, media outlets he branded as “Fake News.” An hour later, asked whether there was a “particular reason” for the ban, he answered, “No … it’s really just cumulative stories over the last two years. …[T]hey purposely write negative news.”

The news organizations immediately sued. On September 24, U.S. District Judge Tim Kelly held a temporary restraining order hearing and ordered the White House to immediately restore the 78 journalists’ White House credentials, citing their Fifth Amendment right to due process. On October 13, he reiterated that conclusion on the additional grounds that the ban violated the journalists’ rights under the First Amendment.

The Ban Violated the Reporters’ Fifth Amendment Right to Due Process

Citing D.C. Circuit precedent directly on point, including a case decided against the first Trump administration, Judge Kelly first found that the journalists had a liberty interest in their White House press passes. He then concluded that “[t]o put it mildly,” due process had not been afforded when those passes were revoked.

Rejecting the administration’s arguments, Judge Kelly observed that “President Trump’s social media posts and statements expressing his view that Plaintiffs[‘] reporting is inaccurate or biased—even if those views have merit—hardly amount to ‘formally articulated and published’ ‘explicit and meaningful standards’ that come close to satisfying” Circuit precedent on fair notice.

Judge Kelly also found that the administration’s invocation of the federal criminal prohibition against publishing classified information failed to provide any support for the government’s actions—first, because the administration did not even try to assert that any of the news organization had published any of the specific categories of information covered. Second, the administration could not point to any occasion in which the government had ever sought to apply that statute—on the books for over half a century—to reporters similarly situated.

The Ban Unlawfully Retaliated Against the Exercise of Protected First Amendment Rights

In his October 13 decision, Judge Kelly also reached for the first time the issue of whether the White House ban violated the journalists’ First Amendment rights.

To succeed on this claim, the news organizations were required to show that the ban was imposed because they had engaged in speech critical of the President and for the purpose of deterring them and other news organizations from engaging in more of the same conditions that Judge Kelly concluded the record amply satisfied.

Judge Kelly observed that “[t]he record is clear that President Trump made the decision” to ban the three news organizations, that he did so based on his dislike for the critical nature of their coverage, and that he intended the ban to deter critical coverage by them and others in the future.

“President Trump’s own comments,” he found, “suggest that he intended the revocation … to alter their reporting on him, bolstering the case that his action here is sufficient to deter a reporter of ordinary firmness from reporting in the same way she had before.”

Citing national security, the administration argued that President Trump or some other official would have reached the same decision for non-First Amendment-offensive reasons. But Judge Kelly found that “the record does not come close to supporting such a conclusion,” calling national security “merely a post-hoc justification for the decision.”

The Ban Unlawfully Discriminated Against CNN, MSNOW and Politico Based on their Viewpoint

Judge Kelly found as well that the news organizations were also likely to succeed on their claim that the ban constituted unlawful viewpoint discrimination. He observed that having opened the White House press areas to credentialed journalists, the White House could not then close access to certain of those journalists due to disagreement with their point of view. “Simply put, that is unlawful viewpoint discrimination.”

Given the importance of the First Amendment rights the news organizations sought to vindicate, the irreparable injury threatened by the ban, and the lack of any administration showing of injury, Judge Kelly entered a preliminary injunction and required the news organizations to post only a nominal bond of $1.00. The administration said it intends to appeal the ruling, which it called “misguided.”

The Administration’s Antitrust Investigation of the Networks Supporting CNN’s Challenge is Baseless

The White House ban on CNN access to the White House prevented CNN from participating in the White House TV “pool,” a system under which the five major networks (ABC, CBS, CNN, NBC, and Fox News) take turns providing video coverage of the president.

In the brief time the ban was in force, the four other networks showed their support for CNN by suspending their own participation in the pool. (The administration has continued to block CNN from acting as the TV pool when the president travels on Air Force One—an action CNN intends to but has not yet challenged before Judge Kelly.)

The president was displeased at the suspension of pool coverage. On October 9, U.S.  Department of Justice officials contacted each of the five networks, demanding communications and materials related to the pool in connection with an investigation as to whether its suspension constituted a group boycott in violation of federal antitrust law.

Antitrust experts are—to put it mildly—skeptical.

A concerted refusal by media companies to deal with the federal government – undertaken in solidarity with a similarly situated media company excluded from government access – would likely not violate the federal antitrust laws for two reasons.

First, in such a situation, the government is acting in its sovereign capacity and is not a commercial competitor.  That means the concerted exclusionary conduct does not eliminate a competitor from the marketplace and, therefore, fails to result in any harm to competition.

The second – and related – reason is that antitrust laws applicable to group boycotts require the boycotts to have an unambiguous commercial motive.  Here, to the contrary, the concerted activity appears to be directed at vindicating First Amendment-protected petitioning activity, not attempting to gain a commercial advantage.

The administration’s media ban could not stand because it violated the 1st and 5th amendment rights of the journalists. Moreover, the government’s antitrust case alleging an unlawful boycott by the media companies must fail for two reasons. The conduct of the media companies was not anticompetitive, and it was not done to gain a commercial advantage. The rule of law demands that government officials  apply the law evenhandedly and respect the constitutional rights of those who criticize them.