When it comes to the First Amendment, Vice-President JD Vance is either dumb or full of crap, and he’s not dumb. Even as right-wing media outlets and legal experts have lambasted Donald Trump’s smashingly unconstitutional White House press ban on CNN, MS NOW, and Politico, Vance and other bad-faith sycophants have argued that government policing of the media is not only appropriate but necessary to ensure some subjective, unmeasurable quantum of feel-good journalistic fluff. But that argument gets the First Amendment exactly backwards, and neatly illustrates why Trump’s press ban is all but certain to fail in the courts.
Pressed to explain his boss’s censurious temper tantrum, Vance whinged that “[a]bout 92% of the stories that they have on the president of the United States, on the administration, are negative… It’s not representative of public opinion.” “It’s about basic fairness,” the vice-president tsk-tsked. He promised that the targeted media organizations would be shut out of the White House “unless of course they start to behave like real news organizations.” Secretary of State Marco Rubio echoed the talking point, blaming the outlets for “not honestly covering” the administration.
Unlike the administration’s prior efforts to suppress speech behind onion-skin thin pretexts – the administration in 2025 effectively banned media outlets from the Pentagon for purported “security risks” when it was plainly about unfavorable substantive coverage – this time the motive is right out in the open. The president openly declared he was “banning” CNN, MS NOW, and Politico because they are “FAKE NEWS,” “one sided,” and “never good.” Trump celebrated – his own words here – a “ban on the free press.” The move is anathema to our First Amendment, but hey: A-plus for candor.
The president’s brazen viewpoint-based discrimination against CNN, MS NOW, and Politico is precisely why he will lose in court. (Disclosure: I work as CNN’s Senior Legal Analyst, and have friends and colleagues at MS NOW and Politico.) The First Amendment does not guarantee or promote – or even give an iota about – whether press coverage of any public figure is positive or negative, fair or biased. Yes, it’s a journalistic virtue for media outlets to offer fair and objective coverage, though they need not do so, and are free to adopt openly partisan perspectives if they choose. But there’s no constitutional command that media coverage must be flattering, or evenhanded, or anything in particular.
To the contrary, the First Amendment concerns itself only with governmental regulation of speech and press – hence the opening phrase, “Congress shall make no law…” The regulated subject of the Constitution’s imperative is the government; the media is the protectee. If the president or anyone else wants to complain that Fox News leans right or MS NOW left, have at it. But the Constitution has nothing to do with journalistic bias. In fact, the First Amendment protects even the most extreme partisan media perspectives.
Indeed, it would be futile (and repressive) to require mathematical journalistic balance – 50% positive and 50% negative, for example, compared to Vance’s claim of 92% negative coverage. It’s not the media’s role to sing the praises of public officials, and few public figures actually merit coverage that is precisely half positive and half negative in any event. Moreover, any assessment of whether a story is favorable or unfavorable inevitably requires some degree of subjectivity.
And countless governmental leaders throughout history have felt themselves the victim of tough, even unfair, press coverage. The historian Lindsay Chervinsky noted in her Substack that George Washington detested The Aurora, a Philadelphia newspaper that often criticized our first-ever administration, but kept his complaints private. FDR claimed that 85 percent of newspapers opposed his 1936 re-election effort. Richard Nixon ran coordinated operations to undermine the media, and infamously declared in 1962 that journalists “won’t have Nixon to kick around anymore.” Bill Clinton complained in 1993 that he had “not gotten one damn bit of credit from the knee-jerk liberal press, and I am sick and tired of it, and you can put that in your damn article.” Barack Obama branded Fox News “yellow journalism.” Ronald Reagan, the subject of near-daily media criticism during his tenure, put it best: “One of the first institutions to be attacked by tyrants, whether they’re dictators of the left or right, is the press.”
The case against Trump heads to court for its first hearing later today in Washington, D.C., before federal District Court Judge Timothy Kelly, a 2017 Trump appointee. In 2018, Judge Kelly ordered the Trump administration to restore the press pass of Jim Acosta, then of CNN, who had been barred from the White House after unfavorable reporting on the president. Trump has already launched a preemptive public campaign against his own judicial nominee, announcing on Monday that his litigation opponents “have drawn a great Judge, for them” and that “we’ll go for appeal” after an anticipated loss.
Trump’s doomsaying actually understates the possibility that he could win a split decision of sorts. In 2025, the president restricted the Associated Press’s White House access after the outlet declined to adopt his preferred “Gulf of America” nomenclature for the Gulf of Mexico. Another Trump-appointed federal judge ruled against the administration. But the D.C. Circuit Court of Appeals, in a two-to-one decision featuring two Trump appointees in the majority, split the baby. That court ruled that the president cannot exclude journalists based on viewpoint and must admit the Associated Press to certain larger, more public-facing areas of the White House, including the press briefing room and the East Room. But the court ruled that Trump was entitled to selectively exclude the Associated Press because of the content of its reporting from smaller, restricted spaces including the Oval Office, the Cabinet Room, and Air Force One.
The Court of Appeals decision is confounding, as it strains to draw constitutional distinctions along literal dimensional lines. A president can exclude media outlets from certain rooms and buildings but not others, the court concludes, based on some opaque formula relating to the room’s location and dimensions; the larger the physical space, the more First Amendment protection, apparently. Whether he agrees or not, Judge Kelly sits under the D.C. Circuit, and he is bound by the court of appeals’ prior ruling for the time being. But this new case could itself provide the vehicle to get the issue up to the Supreme Court, which might well reject the Court of Appeals’s tortured formulation from the Associated Press case.
This much seems clear: Judge Kelly can – and will at least partially – restore White House access to CNN, MS NOW, and Politico. And, if he frames his decision carefully, he can undo the president’s ban altogether. The media organizations in their brief offer three distinct bases on which to invalidate Trump’s ban. Two involve the First Amendment itself: the ban constitutes straightforward viewpoint discrimination and is unlawful retaliation for unfavorable coverage.
But the third is a Due Process claim, unrelated to the First Amendment. The plaintiffs claim they’ve been deprived of liberty and property interests – their ability to do their jobs and make a living by accessing the White House – without any reasonable process: no notice, no meaningfully applicable standards, and no opportunity to contest the action. If Judge Kelly rules on Due Process, he can sidestep the D.C. Circuit’s strange patchwork ruling – which is based on a creative interpretation of the First Amendment – and restore access to the media organizations immediately and without having to draw distinctions room-by-room throughout the White House complex.
The first in-court salvo will be fired later today, and there will be a long way to go after that. But ultimately, this case will not redefine or undermine the First Amendment’s protection of a free press. It will reinforce it.
