Trump’s Ongoing War Against the Free Press

<div><p><em>Tonight’s post runs a little longer than usual. I hope you’ll agree with me that it’s worth it to parse Judge Kelly’s opinion and the stand he takes for the First Amendment and a free press. Federal judges, regardless of which president appointed them, continue to take a stand for democracy.</em></p><p><span>Speaking to a crowd in Colorado on October 11, 2024, Donald Trump </span><a href="https://x.com/HQNewsNow/status/1844837169749270545?s=20">criticized</a>…; 60 Minutes, alleging that “strange things” happened when Biden was interviewed and that Kamala Harris was propped up by creative editing and the addition of “a statement having nothing to do with the questions” when she was interviewed. The at-the-time campaigning former president said, “and a license is based on honesty. I think they have to take their license away.”</span></p><p><span>Fast forward to October of 2026, with Trump back in the White House. He hasn’t taken away CBS’ license, but then, he hasn’t had to. Some of the network’s reporting on Trump has been </span><a href="https://www.npr.org/2026/06/03/nx-s1-5844929/cbs-60-minutes-scott-pelle…; after the billionaire Ellison family acquired the network. CBS paid Trump $16 million to settle a lawsuit he filed against 60 Minutes over the Harris interview, even though media law experts </span><a href="https://firstamendment.mtsu.edu/post/what-you-need-to-know-about-trumps…; the lawsuit as a weak one. </span></p><p><span>That’s just one example of Donald Trump’s war on the press. Now that he’s embroiled in a lawsuit brought by CNN, MS Now, and Politico, after he suspended the hard passes that gave them access to cover the White House, we’ve forgotten that it started with that key Trump priority for making America great again: renaming the Gulf of Mexico the Gulf of America. Trump signed </span><a href="https://www.presidency.ucsb.edu/documents/executive-order-14172-restori… Order 14172</a><span> on January 20, 2025, directing the federal government to rename the Gulf. When the Associated Press declined to play along, Trump excluded them from coverage, and </span><a href="https://clearinghouse.net/doc/155977/">they sued</a><span>. That case seems to be in limbo, with an early win on First Amendment grounds on hold as the Court of Appeals reconsiders the matter.</span></p><p><span> That was the atmosphere when Trump tried to ban media entities he viewed as critics from covering him. Press access to the Pentagon had also been </span><a href="https://joycevance.substack.com/p/five-questions-with-first-amendment?u…;. Trump seemed to have assumed this was a war he was well on the way to winning and would continue to have success at. </span><a href="https://joycevance.substack.com/p/king-trump-privileges-not-rights">My assessment</a><span> when I first wrote to you after the White House hard passes were revoked was that “This is a case about whether the press can criticize the president. The Constitution says yes.”</span></p><p>So does the District Judge. Trump is not getting the easy victory he thought was at hand.</p><p><span>On Tuesday, Judge Timothy Kelly, a Trump appointee, </span><a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.296754/gov.usc… a preliminary injunction</a><span> in favor of CNN, MS NOW, and Politico. For at least the duration of the litigation, they get their hard passes back and can cover the White House from inside of the building, just like the media outlets Trump considers more friendly to him.</span></p><div><figure><a href="https://substackcdn.com/image/fetch/$s_!SJwV!,f_auto,q_auto:good,fl_pro… href="https://substackcdn.com/image/fetch/$s_!SJwV!,f_auto,q_auto:good,fl_pro… type="image/webp"><a href="https://substackcdn.com/image/fetch/$s_!SJwV!,f_auto,q_auto:good,fl_pro… src="https://substackcdn.com/image/fetch/$s_!SJwV!,w_1456,c_limit,f_auto,q_a…; width="1456" alt=""></a></source><a href="https://substackcdn.com/image/fetch/$s_!SJwV!,f_auto,q_auto:good,fl_pro… href="https://substackcdn.com/image/fetch/$s_!SJwV!,f_auto,q_auto:good,fl_pro… order starts like this: “On September 18, 2026, President Trump posted 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 news organizations who hold ‘hard passes’ allowing them to work there showed up the next day, they were denied entry.” Previously, when he entered a brief temporary restraining order, Judge Kelly ruled solely on the basis of a due process argument that the hard passes were pulled without advance notice and a chance to make a case to keep them. This week the Judge went for the full Monty, granting the preliminary injunction on the basis of the plaintiffs' First Amendment arguments as well. </span><a href="https://joycevance.substack.com/p/king-trump-privileges-not-rights">We discussed</a><span> all three arguments in detail when the case was filed. The First Amendment arguments claim Trump engaged in illegal retaliation against the plaintiffs for what he views as negative coverage and discriminated against them based on their viewpoint. </span></p><p><span>As </span><a href="https://joycevance.substack.com/p/king-trump-privileges-not-rights">we discussed</a><span> at the time, the First Amendment issue is critical. If the Judge had ruled only on the basis of Due Process and restored the hard passes, “the White House could turn around and revoke them again … It could establish standards, give the plaintiffs notice and an opportunity to respond, and then yank their passes again. The plaintiffs could still challenge whether that process was genuine or adequate, but the First Amendment issue would then be squarely on the table. If the court doesn’t consider it now, the plaintiffs could end up in a cycle of having their White House access restored, only to have it revoked again, seriously disrupting the work they do for the American people.”</span><br></p><p>The Judge throws Trump a bone as he rules against him. But it’s the kind of thing that will make his opinion more airtight on appeal. In his opinion, he writes, “Still, no one should interpret the Court’s decision to suggest that President Trump’s concerns about accuracy and fairness in the media’s reporting are unfounded, or that the government is powerless when its true aim is to protect national security when classified information is unlawfully disclosed. That said, for the reasons explained below, the Court will extend the relief it already ordered, which will continue to preserve the status quo while this case proceeds.” Trump’s lawyers can’t argue this is a runaway radical federal judge, as they have in other cases in the past. This language is a marker of fairness and absence of a political agenda in his opinion. It’s as if the Judge is saying, “I’m with you in principle, but you’ve gone too far here,” and if you’re the media plaintiffs, that’s a good position to defend on appeal.</p><p><span>It’s worth going through some of the detail in the Judge’s written opinion because it reinforces how clearly Trump violated the First Amendment and also previews the arguments we will see as the case moves through the appellate courts. Trump has </span><a href="https://www.newsfromthestates.com/article/trump-administration-appeals-… filed</a><span> a notice of appeal.</span></p><p>Judge Kelly starts with the first Trump post on Truth Social, suggesting he was not happy with CNN, MS NOW, and Politico. It was September 18, 2026: </p><div><figure><a href="https://substackcdn.com/image/fetch/$s_!8mZG!,f_auto,q_auto:good,fl_pro… href="https://substackcdn.com/image/fetch/$s_!8mZG!,f_auto,q_auto:good,fl_pro… type="image/webp"><a href="https://substackcdn.com/image/fetch/$s_!8mZG!,f_auto,q_auto:good,fl_pro… src="https://substackcdn.com/image/fetch/$s_!8mZG!,w_1456,c_limit,f_auto,q_a…; width="1456" alt=""></a></source><a href="https://substackcdn.com/image/fetch/$s_!8mZG!,f_auto,q_auto:good,fl_pro… href="https://substackcdn.com/image/fetch/$s_!8mZG!,f_auto,q_auto:good,fl_pro… Judge cites that post and Trump’s following comments: “About an hour later, President Trump was asked whether there was a ‘particular reason’ for the ban . . . He answered, ‘No . . . it’s really just cumulative stories over the last two years. . . . [T]hey purposely write negative news. And they do that because they want to try and diminish the Republicans and a Republican administration. And honestly, we’ve done a fantastic job. Look at the numbers, look at the economic numbers. We have more money coming into our country today than ever before.” He later added that he would ‘love it’ if CNN, MS NOW, and POLITICO ‘could straighten themselves out.’”</p><p>Trump continued on social media, the best witness against himself. After being advised a lawsuit was coming, he posted this.</p><div><figure><a href="https://substackcdn.com/image/fetch/$s_!i7KV!,f_auto,q_auto:good,fl_pro… href="https://substackcdn.com/image/fetch/$s_!i7KV!,f_auto,q_auto:good,fl_pro… type="image/webp"><a href="https://substackcdn.com/image/fetch/$s_!i7KV!,f_auto,q_auto:good,fl_pro… src="https://substackcdn.com/image/fetch/$s_!i7KV!,w_1456,c_limit,f_auto,q_a…; width="1456" alt=""></a></source><a href="https://substackcdn.com/image/fetch/$s_!i7KV!,f_auto,q_auto:good,fl_pro… href="https://substackcdn.com/image/fetch/$s_!i7KV!,f_auto,q_auto:good,fl_pro… Judge again returned to Trump’s own words to continue to make the case for enjoining the White House.</p><div><figure><a href="https://substackcdn.com/image/fetch/$s_!FgPg!,f_auto,q_auto:good,fl_pro… href="https://substackcdn.com/image/fetch/$s_!FgPg!,f_auto,q_auto:good,fl_pro… type="image/webp"><a href="https://substackcdn.com/image/fetch/$s_!FgPg!,f_auto,q_auto:good,fl_pro… src="https://substackcdn.com/image/fetch/$s_!FgPg!,w_1456,c_limit,f_auto,q_a…; width="1456" alt=""></a></source><a href="https://substackcdn.com/image/fetch/$s_!FgPg!,f_auto,q_auto:good,fl_pro… href="https://substackcdn.com/image/fetch/$s_!FgPg!,f_auto,q_auto:good,fl_pro…’s own comments make it clear that this is all about his dislike of what the media plaintiffs said about him, not about the bogus threat to national security that his lawyers came up with after the fact to justify what he did. The Judge’s case for concluding Trump was retaliating and discriminating based on viewpoint in violation of the First Amendment is Trump’s own words.</p><p>The Judge succinctly and accurately stated what the law requires him to find to enter an injunction and how he got there in this case: “Plaintiffs have met their burden: they have shown that they are likely to succeed on the merits of their claims, that without a preliminary injunction they are likely to suffer irreparable harm, and that the balance of the equities and the public interest tip in their favor. Thus, they have demonstrated they are entitled to an injunction that will continue to preserve the status quo while this case proceeds.” Then he analyzes the facts he’s laid out and shows how they support his legal conclusions. It’s the kind of straightforward opinion that is easy to affirm on appeal.</p><p>At one point Judge Kelly writes, “Viewed in light of the whole record, neither the September 22 letters nor the Wilson Declaration suggest that President Trump would have revoked Plaintiffs’ hard passes and banned them from the White House even in the absence of the sort of reporting about him that he criticized when he announced the ban. They do not suggest that a ban based on national security concerns was in the works before President Trump made his announcement.” In other words, it’s all about a president who thumbs his nose at the First Amendment. And now the court is holding him accountable.</p><p>Judge Kelly joins a growing cadre of judges who refuse to pretend that this is a normal Justice Department representing a normal president: “As the Supreme Court explained in considering the government’s explanation in a different context, the Court is ‘not required to exhibit a naiveté from which ordinary citizens are free.’…Freed from such a naiveté, it is not hard to conclude that President Trump likely banned Plaintiffs from the White House because he believes that their reporting is generally inaccurate and biased against him. For that reason, all told, Plaintiffs are likely to succeed on their First Amendment retaliation claim.”</p><p>As I wrote to you early on, this isn’t a hard case. Judge Kelly explains, “Plaintiffs are likely to succeed on their First Amendment viewpoint discrimination claim. For all the reasons explained elsewhere, it is likely that Plaintiffs were selected by President Trump for revocation of their access to the White House press area because he believes their coverage of him and his administration is generally inaccurate and biased—in other words, it was ‘an effort to suppress the speaker’s activity due to disagreement with the speaker’s view,’…—rather than to vindicate any other purportedly ‘compelling governmental interest,’…including maintaining professional standards for journalists or protecting national security…Simply put, that is unlawful viewpoint discrimination.”</p><p>It’s easy to imagine the Trump White House arguing that there is no real injury here, because the court quickly restored the hard passes. Judge Kelly addresses that point, noting that the law says that “the loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Showing a First Amendment injury is by its nature the kind of irreparable injury a party must show to get an injunction. Even the Due Process claim would suffice, the Judge writes, pointing to case law in the Circuit. </p><p><span>So how did Trump respond to Judge Kelly’s decision? As you might expect, the official </span><a href="https://x.com/brianstelter/status/2110392870700040510?s=20">comment</a>…; from the White House only strengthens the case on appeal: “The Fake News has no place demanding a spot in the President’s Oval Office. The lies they smear are a disservice to the American public and tear at the very fabric of our Democracy. They’re completely capable of reporting from directly outside. We intend to appeal this misguided decision.”</span></p><p>They might just as well have concluded that one by saying “and we will continue to violate the First Amendment by engaging in viewpoint discrimination and retaliation.” </p><p>Judge Kelly: “President Trump’s own comments suggest that he intended the revocation of Plaintiffs’ hard passes 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.” This is a case that goes to the heart of the First Amendment and demands that the courts protect it from a president who doesn’t think anyone should be permitted to criticize him.</p><p>Trump is entitled to his belief that CNN, MS NOW, and Politico are unfair to him. He can criticize their coverage. What he can’t do is use the power of the presidency to punish them for it. The First Amendment doesn’t care about whether a president likes the way the press covers him; in fact, it’s most important when it involves coverage he objects to. Trump can call it fake news all he wants. He just can’t make it illegal to report it.</p><p><em>If you read Civil Discourse regularly, you already know what we do here: take the law seriously, separate what matters from the noise, and try to understand what’s happening without losing sight of what we can do about it. Almost everything I write here is available to everyone. I want to keep it that way, and paid subscribers make that possible. So if Civil Discourse has become part of how you make sense of the news—and you’ve been meaning to become a paid subscriber—this is a good time to do it. Your subscription supports my work and helps make sure everyone can have access to it.</em></p><p>We’re in this together, </p><p>Joyce</p><p><a href="https://joycevance.substack.com/p/trumps-ongoing-war-against-the-free?u…;