White House Media Ban & New Argument for DC Arch

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1:39David Super:This is Bloomberg Law with June Grosso from Bloomberg Radio. White House has restored access for now to three media outlets that President Donald Trump had banned last week. This after an overnight order from federal judge Timothy Kelly, a Trump appointee, directing the White House to temporarily reinstate access to CNN, MS Now and Politico while a lawsuit filed by the media companies proceeds. Trump had announced on September 18th that he was banning the three organizations from the White House, citing what he deemed unfavorable coverage. In formal letters sent to the outlets four days later, the administration said the decision was based on national security concerns related to news reports about the administration.

2:30The news outlet sued, arguing the ban is a direct assault on the First Amendment and a blatant violation of our most fundamental constitutional principles. In his order, Judge Kelly said that the news organizations met the high bar of showing they were likely to succeed on the merits of the case, citing a lack of due process, violation of constitutional freedoms, and the overall public interest. However, he didn't directly address whether they're also likely to win their broader allegation that the ban violates the First Amendment's protections for the press. The judge's temporary restraining order is set to stay in place for two weeks, and he'll be scheduling a hearing to consider whether to extend access for the outlets.

3:19My guest is First Amendment expert Timothy Zick, a professor at William & Mary Law School. Did you expect the judge to issue this temporary restraining order? Was it any surprise? I did. I'm not surprised because the same judge issued a similar order with respect to Jim Acosta, who had been denied his press credential without due process during the first Trump administration. So it's the same judge, same issue. 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, MSNOW and Politico were banned for trafficking in verifiable falsehoods about national security and publishing sensitive or classified information.

4:06The 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 hoc 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.

4:47But 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 affidavits 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.

5:33and 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 sort of as we speak or as he was considering the decision. So it does not address the sort of, 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.

6:09During the arguments, the Justice Department argued that Trump wasn't engaging in viewpoint discrimination because the president had criticized other news organizations but not banned them. For example, he called ABC the worst. Right. But they're all, to his mind, aligned with the left. You know, they all favor Democrats. And And the fundamental problem is the reason he's picking on these particular outlets is because of the critical nature of their coverage. So the fact that he hasn't banned every single outlet that critically covers him does not mean he hasn't engaged in viewpoint discrimination.

6:49And by the way, he said there may be more. There may be others. And so I don't think that has any bearing on this at all. Will you explain the media outlet's argument that the ban was a blatant violation of the First Amendment? Of the First Amendment, yeah. Because 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.

7:30And 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. So what the press got here was a temporary restraining order. The judge is going to schedule expedited briefing for the motion for a preliminary injunction. Do you expect the arguments will basically be the same and perhaps the outcome, too? I would expect so.

8:07You 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. It's our house, but he said in the White House.

8:44So 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 D.C. Court of Appeals involved. And on we go. Through the years, reporters have had scoops based on classified information, leaks of national security, etc. etc. There's no law or case that makes that illegal, right? Correct. There's no law that's alleged to have been broken. Reporting on national security matters is legal, lawful, and I would add valuable in terms of self-government and democracy and all of that.

9:30So they're not alleging unlawful behavior. They're sort of making vague arguments about national security. One thing I should say that I think could be different is that 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.

10:08It's going to be the same result. It could be that they can fix the process piece, but not the First Amendment piece. So there's going to be more litigation on this, I suspect. I don't expect the administration to just lay down and say, well, welcome back in. It's good to see everyone. You know, that's not the MO of Trump 2.0. And so expect further proceedings. Let's say the Supreme Court affirms Judge Kelly, which I would expect. I mean, would the Supreme Court ever take a case like this? Is there any reason to take it? I mean, it's possible they would, you know, whether it's on the due process issue or the First Amendment issue, you know, that they wanted the Supreme Court to make some law on this.

10:50I don't have any inside information or even projection as to whether they do or don't. One of the things the administration was arguing in the district court is some of the D.C. Circuit precedents should be overruled. And we do not have at this point guidance on, again, what kind of forum is the White House? What kind of access rights do journalists have there? So it's possible the court, you know, could be interested in making law on that. I mean, what it said about news gathering and press freedoms, as you probably know, isn't comprehensive. So there isn't a lot of detail. The press has the rights that ordinary Americans have, right, to gather information and publish it.

11:29But of course, the press plays a special role in that process and is a particularly interested institution. And I don't know, I would worry if the court did get it. It has not been sort of making positive noises about press and press freedoms and its opinions. And so I would be wary of the court sort of opening this issue. And this is another judge who has faced criticism from President Trump. In 2018, after the White House suspended the credentials of correspondent Jim Acosta, after a lawsuit was filed, Judge Kelly quickly ordered the White House to restore Acosta's press pass, citing a lack of due process.

12:14and Trump on Monday said they have drawn a great judge for them, a man who ruled in favor of Jim Acosta, who now seems to have disappeared from the planet. The judge's name is Tim Kelly, and he was sadly appointed by Trump. Well, you know, he was a Trump 1.0 appointee, so maybe there's a difference between those and the ones he's appointed, nominated and appointed since. You know, given the law on the D.C. Circuit with respect to this issue, which has come up multiple times now, it's hard to escape the conclusion. You can't just say, well, we granted you some process after the fact. That's not what the due process clause requires in this particular context.

12:57So even a devoted Trump appointee, when confronted with that law, either has to find a way around it or ignore it, or in this case, as he did, simply apply it. So who knows what happens after that, but at least as far as due process is concerned, this is a necessary decision and one that follows the law. It'll be interesting to see how Judge Kelly rules on the preliminary injunction and what happens next. Thanks so much, Tim. That's Professor Timothy Zick of William & Mary Law School. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need.

13:41Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off. Deep in the work that moves the business. Let's create smarter business. IBM. This is Robert Smith from Business History. If you're listening to this, there's a good chance you're a small business owner. And like every small business owner, you started with a dream to do what you love and watch it grow. What you probably didn't dream about? Keeping up with cyber threats. That's where MasterCard can help with access to tools that help identify cyber threats to better protect your business.

14:19Building your dream business? Priceless. For cybersecurity in a changing world, there's MasterCard. Learn more at MasterCard.com slash small business. Coffee Genius here. Most people see a busy cafe, but I see precision at every step. Thanks to Genius from Global Payments. Transactions? Instant. Inventory? Precise. Operations? In sync. Absolutely genius. From sold-out crowds worldwide to managing the morning rush, Genius keeps operations running smoothly. One portado. Flawless pour, perfectly timed. Just beautiful. Big league reliability for any business. That's genius. In October of 2025, President Trump first unveiled plans for his proposed Triumphal Arch in Washington, D.C.

15:12He debuted a model of the 250-foot structure in the Oval Office. We're building an arc like the Arc to Triumph, and we're building it by the Arlington Bridge, the Arlington Cemetery, opposite the Lincoln Memorial.

15:29David Super:You could say Jefferson, Washington, everything, because they're all right there. And it's something that is so special. It will be like the one in Paris, but to be honest with you, it blows it away, blows it away in every way. A group of Vietnam War veterans is challenging the arch plans in court. And a Washington federal judge ordered the government earlier this month to provide at least 48 hours notice before conducting activities on the planned arch. And then suddenly, on Sunday, Trump raised a national security rationale for the arch in a Truth Social post, where he said he'd agreed to convert the proposed triumphal arch at the strong request of the military into a top-grade military complex triumphal arch.

16:20He said the arch would house and store drones and ammunition and provide space for snipers on the roof and plaza. It's part of a well-trodden playbook for the administration, which has cited national security to defend against legal challenges to immigration restrictions, sweeping tariffs, and most recently, Trump's new White House ballroom. Joining me is constitutional law professor David Super of Georgetown Law. David, national security seems to be Trump's go-to argument.

16:55David Super:Well, there are a bunch of cases from the Supreme Court and elsewhere going back many years suggesting that the court should defer to the president on national security matters. And it's easy to understand why. But the assumption in those cases is that the national security claim is at least plausible. And what I think he is doing here is showing that if you're willing to lie without constraint, that you can make any of these legal categories irrelevant. We've seen that in many other ways where he's used money from one program to address a completely different passing fancy of his. And he's, I think, now going to force the courts to reconsider deference to the president on national security because they certainly are not going to want to be dragged into something as absurd as you get to build an arch anytime you put a sniper on it.

17:59Just the other day, the administration used national security as part of the reason why the White House was denying press passes to those three outlets. And the judge there rejected those claims, looked at the sequence of events and noted that that only came up after a suit had been filed. But the Supreme Court didn't do that in the ballroom case.

18:24David Super:The Supreme Court's decision on the ballroom was based on standing. The majority stayed as far away from the merits as they humanly could. The dissent from the chief justice was very happy to talk about the merits and found it was completely lawless. I think part of the reason the court is finding procedural grounds so attractive in ruling for the president is because the president's arguments are increasingly absurd. The problem is that all the agencies that are reviewing this are populated by Trump appointees. So there's no independent review of this. So suppose he gets now, you know, military Pete Hegsseff to say that we really need this.

19:08We really need this in the middle of a traffic circle in D.C.

19:12David Super:Yeah, I mean, I've lived in D.C. for many, many years, and I've probably entered D.C. by that traffic circle twice in a couple decades. It's not like an invader would have to go through that traffic circle. There are only about 200 other ways they could come in. Do we get 200 triumphal arcs to protect us at every possible location? I think there's going to be a president coming up, maybe President Trump, maybe one of his successors, who's going to really regret his invoking national security in such frivolous ways, because the courts are going to feel that they have to stop giving deference on claims of national security because they get lied to too often.

20:00David Super:And there will be a situation where there really are delicate national security issues, and courts are going to be uncomfortable giving them a blank check. There's no federal agency that's going to go against what he wants. So then what about Congress? I mean, the Democratic congressman from that district talked about to make the arch an ammunition depot for snipers in a location where snipers have never been needed, would place a large weapons cache within feet of thousands of tourists, pedestrians, cyclists, and drivers on major commuter traffic, thoroughfares, and metros' blue line. So, I mean, what can Congress do?

20:40David Super:Congress, Congress. Oh, yes, I remember Congress. Thank you, thank you. Congress can say this is illegal, but they already have. There's no law allowing it, and there's a statute that goes back to the early days of the Republic saying you cannot spend appropriated funds on anything other than the purposes for that appropriation. So it's already illegal and asking Congress to step in is effectively asking them to say it's doubly illegal or it's triply illegal. You don't get extra points for violating the law three times. Yeah, I mean, the federal law requires congressional approval for monuments on federal land in D.C., the Commemorative Works Act and 40 U.S.C.

21:23Section 8106. So they require express approval from Congress. So shouldn't that be the major issue when this goes before a judge? Do they have express approval from Congress? No. The administration claims a 1925 law that allowed for the construction of a pair of 166-foot columns at that location that were ultimately never built. Is there authorization?

21:48David Super:Well, there's a lot of problems with that. Number one, they don't want to build what that law called for. They've got their own fancy plan. Number two, they still are using federal money to arrange this, and they don't have a valid appropriation for it. And under the Constitution, federal money shall not be spent unless Congress provides an appropriation for it. They probably could have gotten one through this Congress, but they didn't ask. Let's talk about standing for a minute. So the Supreme Court, as you said, said the National Trust for Historic Preservation didn't have standing. Opposing this arch, you have a group of Vietnam War veterans challenging it.

22:29Do you think that they have standing?

22:31David Super:I suspect they do, but I think it's almost certain that somebody does, because this is not just an aesthetic problem. It is a safety problem. It is a traffic snarls problem. So I think you just get a commuter from Arlington who says, I don't want my commute messed up. That's clearly an injury. In fact, that gives them standing. There just wasn't anyone with quite that kind of a personal inconvenience argument in the White House ballroom case. But this is out where people go, and it's going to make it much harder for people to go. I've read they're going to break ground on this arch, and that would be against the judge's order.

23:18But might they do it anyway?

23:20David Super:Yes, given their increasing willingness to violate court orders, their handling of the Kennedy Center situation suggests that they don't care very much about court orders. Their response to many court orders about their immigration activities suggests they don't care very much. so I can certainly see them doing it. If I were the administration, Judge Shutkin would not be my choice for the first judge to get into a big fight with. She'd be pretty much my last choice, but I'm not them. And this is clearly something the president is rather emotional about, and there may not be anyone that can tell him this is madness.

23:59Let me ask you, because people say, well, what are you going to do to the president, even a judge, but can they serve contempt citations or do something to the people who are apparently going to be working 20 hours a day or to the interior secretary to stop them from physically constructing this?

24:18David Super:Certainly, there's a lot that can be done in this case. They could order people to not work on it. And if they do hold them in criminal contempt, The president could then pardon them, but they can also hold them in civil contempt unless and until they repair the damage that was done to the traffic circle or any surrounding areas, contrary to the order. And the president cannot pardon people for civil contempt. So the judge could effectively force them to undo whatever they do or put people in jail until they change their minds. And the next step is the National Capital Planning Commission for final approval, but that's packed with Trump appointees.