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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.
Speaking to a crowd in Colorado on October 11, 2024, Donald Trump criticized 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.”
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 neutered 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 viewed the lawsuit as a weak one.
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 Executive Order 14172 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 they sued. 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.
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 limited. Trump seemed to have assumed this was a war he was well on the way to winning and would continue to have success at. My assessment 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.”
So does the District Judge. Trump is not getting the easy victory he thought was at hand.
On Tuesday, Judge Timothy Kelly, a Trump appointee, entered a preliminary injunction 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.
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The 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. We discussed 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.
As we discussed 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.”
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.
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 already filed a notice of appeal.
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:
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The 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.’”
Trump continued on social media, the best witness against himself. After being advised a lawsuit was coming, he posted this.
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