First Amendment

A Trump Appointee Says the President Likely Violated the First Amendment by Banishing Disfavored Journalists

U.S. District Judge Timothy J. Kelly granted a preliminary injunction to CNN, MS NOW, and Politico, which Trump banned from the White House because of their "purposely negative stories."

Jacob Sullum | 10.14.2026 2:20 PM

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(Illustration: Adani Samat | Photo: Samuel Corum/Pool via CNP/Polaris/Newscom)

Last month, a federal judge in Washington, D.C., issued a temporary restraining order (TRO) that required restoration of press passes for 78 journalists employed by three news outlets that President Donald Trump peremptorily banned from the White House on September 18. U.S. District Judge Timothy J. Kelly, a Trump appointee, extended that order on Tuesday, granting a preliminary injunction to CNN, MS NOW, and Politico.

While Kelly's TRO was based on CNN et al.'s claim that their sudden banishment violated the Fifth Amendment's guarantee of due process, his justification for the preliminary injunction also addresses their argument that revocation of their press passes violated the First Amendment by retaliating against them for constitutionally protected speech and discriminating against them based on viewpoint. Kelly concludes that the plaintiffs "are likely to succeed not only on their due process claim, but also on their two First Amendment claims."

A retaliation claim requires showing that the plaintiff engaged in conduct protected by the First Amendment, that the defendant's action was "sufficient to deter a person of ordinary firmness" from "speaking again," and that there was "a causal link between the exercise of a constitutional right and the adverse action." Although the government's lawyers did not dispute that the CNN et al.'s journalism is constitutionally protected, they argued that the plaintiffs had failed to satisfy the two other elements.

Kelly disagrees. The "hard passes" at issue in this case, he notes, give journalists unescorted access to the White House "press area," which includes "the briefing room, the press offices, and certain other locations in and around the White House that are open to correspondents." CNN et al. argued that "a hard pass is an important credential because it 'allows a reporter to react to fast-developing news' and gives them 'swift and easy access to key official sources.'" Since "the revocation of Plaintiffs' hard passes matters a lot as to how, whether, and to what extent they can do their jobs," Kelly says, "it is likely that the open-ended ban........

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