The day before a hearing over Donald Trump’s ban of three major news outlets, the D.C. Circuit issued a ruling weakening his position on a key legal issue.
The appellate court found in favor of Rev. Patrick Mahoney’s right to demonstrate on the Eastern Steps of the U.S. Capitol, which the court’s majority deemed a “nonpublic forum” for which restrictions on expression must be “reasonable” and “viewpoint neutral.”
CNN, MSNOW, and POLITICO have argued that White House grounds like the press room are also a nonpublic forum, and their lawsuit challenging Trump’s ban on First and Fifth Amendment grounds heads to a court hearing on Wednesday.
The Freedom of the Press Foundation’s chief of advocacy Seth Stern said that the banned news organizations had an ironclad case even before today’s opinion.
“It’s always helpful to have an opinion right on point that is issued the day before your hearing,” Stern said. “No lawyer’s ever going to turn that one down, but this was not exactly a legal gray area even before today’s opinion.”
U.S. Circuit Judge Neomi Rao, a Trump appointee and one of the most conservative jurists on the bench, wrote the majority opinion, and the dissent by Judge Judith Rogers took an even more expansive view on freedom of expression, holding that the steps are a “traditional public forum.”
On Wednesday afternoon, Trump-appointed U.S. District Judge Timothy Kelly will hold a hearing at 3:30 p.m. Eastern Time, considering whether to issue a temporary restraining order blocking Trump’s ban.
Trump is already expecting to lose, noting that Judge Kelly previously ruled in favor of Jim Acosta.
In the lead up to the hearing, the news cycle has been brimming with stories about press freedom in the United States, which Seth Stern and I discussed during our conversation:
State attorneys general settled their lawsuit seeking to block Paramount’s proposed merger with Warner Bros. Discovery. The settlement calls for the creation of a so-called “editorial independence board.”
Press freedom groups and others have called upon Paramount CEO David Ellison to speak out against Trump’s ban of news organizations, including the one he seeks to acquire.
Major TV networks — ABC, CBS, Fox News and NBC — indefinitely suspended their pooled White House press coverage in solidarity with the banned stations, and the New York Times has refused to produce or disseminate pooled photography.
Watch the archived conversation in full at the top of this newsletter.
