联邦法官叫停白宫禁媒令，CNN等获临时禁令

This is Bloomberg Law with June Graasso from Bloomberg Radio. It's sick. I mean, there's something wrong with a country that can allow people to write purposely negative stories. Now, if they want to write them, that's fine, but I don't have to let them into my into the people's house. President Trump admitted on Monday that he was banning three prominent news outlets from the White House because he didn't like their coverage of him.

Those news organizations, CNN, MS Now, and Politico, sued, saying the ban was a direct assault on the First Amendment. And by Thursday, they were allowed back into the White House after a federal judge blocked Trump's ban. Judge Timothy Kelly, a Trump appointee, found that the news organizations had met the high bar of showing they were likely to succeed on the merits of the case. Trump's ban marked a significant escalation in his efforts to put restraints on journalists and control the narrative surrounding his presidency.

An extraordinary move no president before him has ever taken and one that former President Barack Obama found stunning.

You just can't come to the White House press briefings anymore cuz you're giving the current president unfavorable coverage. I'm trying to think what would have happened if I had said, you know what, Fox News, you're out of here. It's unimaginable. Joining me is an expert in the First Amendment, Timothy Zik, a professor at William and Mary Law School. Tim, is Trump's war on the press escalating or is it just more of the same?

So, ever since Trump entered politics, he's been railing against the press and journalists and particularly outlets that report critically on the administration or him. And when they report things he doesn't like, he denigrates them. He calls it fake news. And now in the second term, he's taking more concrete actions than he was in the first term. So this is an escalation. It's blatantly unconstitutional to exclude the press or particular journalists or particular media based on the point of view that they publish or the content of what they publish whether he likes it or not.

That is the definition of a free press. That the president can't just pick and choose the coverage he wants. Every president would like to do that of course, but only in authoritarian countries can you actually again pick and choose which news gets reported and punish reporters that don't sort of tow the party line.

Tell us about the news organizations claims in their lawsuit that the ban is a blatant violation of the first amendment. The president singled out particular media outlets for sanction. In this case, exclusion and revocation of their press credentials based on what they wrote, based on the sort of negative coverage as he sees it or critical coverage or the perspective of their publications. That is a violation of the first amendment whether it takes place in this context or some other.

And the reason it's a violation here is that journalists are of course invited to come to the White House where news is made and to do their job. It's important that they be there. And when the government makes that kind of benefit available, access, it can't deprive it just for certain media outlets based on the content of what they're reporting.

Did you expect the judge to issue this temporary restraining order? Was it any surprise?

I did. It's not surprised because the same judge issued a similar order with respect to Jim Aosta who had been denied his press credential without due process during the first Trump administration. So it's the same judge, same issue, you know, given the law in the DC circuit with respect to this issue which has come up multiple times now. It's hard to escape the conclusion in this particular context. So who knows what happens after but at least as far as due process is concerned this is a necessary decision and one that follows the law.

So it comes as no surprise. Let's talk about the national security argument which the government raised after the lawsuit was filed and letters which were provided to the court said that CNN, MS Now and Politico were banned for trafficking and verifiable falsehoods about national security and publishing sensitive or classified information. The judge tore that argument apart in several different ways. What's your take on it?

Well, I'm as skeptical as the judge was at the hearing and in the opinion in part because none of that was mentioned when Trump blurted out his ban. So, the explanation that he gave was fake news and these stories are negative and they diminish me and you shouldn't have the right to do that from inside the hallowed halls of the White House. So it seems like a post hawk rationalization an effort to sort of have a court defer because when courts hear national security oftentimes they will give some deference to the government but this judge didn't in part because he said this all seems to be post hoc and at least so far on the record they didn't submit any affidavit or any evidence of any kind of national security breach.

Worse than that, I think some of their examples were situations where the press had based its news reporting on anonymous sources from inside the White House. So, it's pretextual, I think, is the right word for it, unless and until they come up with some evidence to support it.

So, was the weight of the judge's decision based on due process arguments? Yes, this opinion is based solely on the deprivation of due process, the lack of any sort of process or standards or notice to these journalists before their credential was revoked. And the court mentions press freedoms but only as part of the reason to grant preliminary relief. This sort of irreparable harm that would occur in the absence of some relief and that irreparable harm of course is press freedoms are being violated.

So it does not address, you know, is the White House a public forum? Do you have a First Amendment right to report from there? Nothing about the sort of seeming viewpoint discrimination that's part of any of this. So if that's going to come in, it's going to come in in some future proceeding.

So what the news organizations got here was a temporary restraining order which lasts 2 weeks. The judge is next going to consider whether to grant longerterm relief in the form of a preliminary injunction. Do you expect the arguments for a preliminary injunction will basically be the same and perhaps the outcome too?

I would expect so. You know, it's possible that on that schedule the administration will have someone, who knows who, sign an affidavit about some national security problem. In other words, try to fix one of the problems that Judge Kelly identified, which is a lack of any sort of evidence. But I'm not sure that's going to fix the problem or unring the bell of the president saying in the beginning, I'm banning a free press.

I'm doing it because I don't like the way they report on me. They shouldn't have the right to come here and criticize me. Was the essence of what he said in my own house, he said in in the White House. So, I expect the arguments to be similar. I expect maybe a little more in terms of evidence from the administration, but I would expect a preliminary injunction and then of course beyond that efforts to stay that injunction to get the DC Court of Appeals involved and on we go.

What about the due process claims? Can the administration cure those?

In the sort of interim here, in the period we're in now, it's possible the administration says, "Well, we'll come up with a process. you can have your credentials back. The court said we had to have a process before we deprived you of them and they'll come up with a process and then deny them which may or may not resolve the due process problem. But it says nothing about the first amendment issue. So going forward, you know, if the administration doesn't do that sort of due process fix, it's going to be the same result.

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