Three news outlets that President Donald Trump abruptly banished from White House grounds this month asked a federal court to block the ban until the case is resolved, saying the administration has "persisted in unpredictably and inconsistently implementing its ban" despite a judge's restraining order — including selectively barring CNN from White House pool duties.
"The White House's words and actions leave little doubt that it will immediately reinstitute a complete ban of CNN, MS NOW, and POLITICO if allowed the opportunity," lawyers for CNN, MS NOW and Politico wrote in a filing late Monday.
"Because the ban is an unlawful assault on the most fundamental First Amendment freedoms and will inflict irreparable harm on Plaintiffs and the public if not restrained, this Court should preliminarily enjoin its enforcement pending the resolution of this case," the filing said.
It was the latest development in the back-and-forth saga of the Trump administration and the news media during the second term of his presidency. It has been a contentious relationship that has raised multiple First Amendment questions, produced sanctions and restrictions on White House and Pentagon reporters and led to several lawsuits that are winding their ways through the federal court system.
A two-week temporary restraining order on Trump's ban of the three organizations, issued by U.S. District Judge Timothy Kelly last week, restored the outlets' White House access, but expires Oct. 8. The preliminary injunction requested in Monday's filing would extend the White House access until the case is finally resolved.
In a statement emailed to The Associated Press immediately after the filing, the lead attorney for the three news outlets called the ban "a blatant violation of the First Amendment and due process."
"The president and his administration have continued to make clear that this ban has only one purpose: to punish reporting he doesn't like," said the lawyer, Theodore J. Boutrous Jr.
"That's retaliation and viewpoint discrimination, pure and simple," Boutrous said. "With the district court's temporary restraining order expiring this week, it is critical to ensure that the White House continues to be prevented from implementing this unconstitutional ban on the free press."
The White House still says access is a privilege, not a right
The filing came a day after the Trump administration made clear it was not backing down from its contention that the sudden ban, which began Sept. 19, was justified.
"When it comes to the White House, it is the people's house," Attorney General Todd Blanche said on ABC on Sunday, invoking an argument the administration has made since the beginning. "It is a privilege, and not a right, to be there."
Monday's 42-page filing reiterated many of the arguments that the news outlets made in their original lawsuit against Trump and the White House, filed two days after the reporters were banned.
It also added mention of the White House broadcast pool rotation, which has become a battleground in the last few days in the standoff between Trump and the media.
The White House, it said, "has persisted in unpredictably and inconsistently implementing its ban, including by barring CNN from fulfilling its role as designated television network pooler on Sept. 26 — to the detriment of CNN, its fellow pool members and, ultimately, the American public."
When the ban was implemented, CNN was removed from its duties as part of the broadcast pool, which consists of the five main networks: CNN, ABC, CBS, NBC and Fox News. In solidarity, the other networks decided to suspend the pool until CNN was allowed back in.
On Friday, CNN was allowed to cover the president with Chinese leader Xi Jinping at the National Archives. But in a new setback Saturday, the White House banned the network from Air Force One, preventing it from covering Trump's trip to a college football game in Tennessee. The rest of the pool declined to provide a replacement, in solidarity with CNN.
Blanche defended that decision, too. "The president has every right to decide who gets to fly on his plane," he said in the Sunday interview. He added that Trump was "sick and tired of certain media outlets just refusing to report accurate news." He added that news coverage he described as "misinformation" amounted to a national security issue.
"That is what is a national security problem, when you have complete misinformation coming out of the White House," he said.
Kelly threw cold water on that argument in his ruling last week granting the temporary restraining order against the White House ban. "The court is skeptical … that defendants' interest in safeguarding national security is the actual motivation" for removal of access, Kelly wrote.
His ruling did not directly address the TV pool rotation. In the new filing, the plaintiffs describe the important function the pool provides and makes the case that it's an important part of the regular access to the president, and his activities, that the media has traditionally had — and must be restored.
It singles out the Air Force One case. "CNN received no official communication from the White House explaining its exclusion," the filing says. "Because CNN was excluded and no replacement designated, no primary television network pooler accompanied the President on the trip."
Pool access issue has presented networks with tough choices
For now, networks in the pool have decided to address the ongoing standoff on a case-by-case basis, according to a person familiar with the pool's operation, speaking on condition of anonymity to give details of ongoing discussions.
On Sunday, Fox covered a pool event; on Monday, NBC was covering the president in the Oval Office. CNN is not in the rotation until Thursday. If the network is again barred from a pool event, the networks will decide together, presumably based on the newsworthiness of the situation, whether to provide a replacement or to refrain from coverage as they did previously.
The issues at stake are difficult. On the one hand, the networks want to take a stand on behalf of press freedom and against efforts to intimidate coverage. On the other, media outlets have an obvious purpose of providing news to their audiences.
"There are not a lot of good options," said David A. Schulz, director of the Media Freedom and Information Access Clinic at Yale Law School.
Should the White House continue to bar CNN, Schulz said, networks may choose "to exert their market power and say, 'We're not going to play ball with you.'"
The question, Schulz added, is: "Who's going to back down first?"
The networks "may well feel like they're between a rock and a hard place," noted RonNell Andersen Jones, a law professor at the University of Utah.
"Capitulation might be perceived as abandonment of core components of press freedom," Andersen Jones said. "But the practicalities of lengthy White House news blackouts are also complicated, and refusing to cover major news at the highest levels of government might itself feel like a failure to serve the goals of democracy."
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