President Donald Trump’s bid to exclude CNN, Politico and MS NOW from the White House press pool violates the First Amendment under existing precedent. And on Thursday, a judge temporarily blocked Trump’s ban. But that’s not the end of the story. A close look at the arguments made by the Department of Justice for the hearing that took place Wednesday in federal district court demonstrates just how much press freedom rests on norms and customs, not just the letter of the Constitution.
Consider that under prevailing First Amendment doctrine, Trump could lawfully abolish the press pool altogether. Then, in principle, he could start afresh and say that he consents to being followed around by only networks whom he has personally approved. That wouldn’t violate the First Amendment. Everyone agrees that the president can discriminate on the basis of viewpoint when he decides, for example, whom he will grant an interview.
If all this sounds counterintuitive, that’s because the trajectory of First Amendment doctrine has been, shall we say, circuitous.
The relevant part of judicial precedent here has to do with what’s known as the law of the forum. The way the Supreme Court sees it, the nature of your free-speech rights depends on the place where you’re speaking.
If you’re on a soapbox on a street corner, you’re in what’s called a traditional public forum. There, your free-speech rights are at their maximum. The government can only impose reasonable time, place and manner restrictions. Otherwise, you can say what you want.
But the category most relevant to the White House is what’s called a non-public forum. That’s a space in which the government gives access only to certain relatively narrow categories of speakers, like accredited journalists. Here the regulations must be reasonable and the government is prohibited from discriminating on the basis of viewpoint. This applies not only to reporters in the White House briefing room, but also to the press pool, which gets even closer access to the president.
The government, reasonably enough, restricts the number of reporters in the press pool as a matter of practicality. And those reporters have to work for accredited networks, another reasonable requirement. But because the White House has always allowed multiple networks access to the pool, it can’t discriminate on the basis of viewpoint.
Here’s where things get tricky. The president can decide which reporters and which networks he prefers for purposes of granting interviews. He could, if he chose, grant interviews in the Oval Office to reporters with whom he agrees or whom he likes. He could do so with several reporters at a time.
In its brief before the district court, the Department of Justice pointed out that President Theodore Roosevelt regularly allowed favored reporters into his office during his daily shave. According to one source cited in the brief, Roosevelt told the press that a reporter who might “violate a confidence or publish news that the President thought ought not to be published … should be punished by having legitimate news withheld from him.” That would still be constitutional today, insofar as it’s similar to granting an interview to a favored reporter.
What’s more, it’s in the nature of a non-public forum that the government doesn’t have to maintain it. It can shut the forum down at any time and for any reason. There’s no constitutional principle that says the government must forever continue to give access to such a forum.
Compare it to the dust-up earlier this year when the press was left to fly home on Air Force One, while Trump himself ducked onto a different plane. Misleading the press (not to mention putting them in harm’s way) violated norms. But it didn’t break the law, because the president isn’t legally obligated to tell the press where he’s going.
The Supreme Court has never specifically weighed in on press access to the White House. In 2025, however, the US Court of Appeals for the DC Circuit ruled that the Associated Press could be excluded from certain areas because the White House is a non-public forum. (That case — which began with the AP refusing to use Trump’s preferred term “Gulf of America” to refer to the Gulf of Mexico — continues to work its way through the courts.)
That’s why Trump could constitutionally choose to cancel the press pool altogether. For that matter, the president could constitutionally choose not to give press briefings there at all. President Joe Biden held fewer press conferences than his predecessors, and that was correctly understood as his prerogative. That was bad for democracy, as it turned out. But it didn’t violate the Constitution.
Why hasn’t Trump explicitly announced that he’s ending the press pool and creating a new policy? Probably because even a president with his own social media network and YouTube channel understands that governing visibly ultimately requires broader press coverage. Trump was made by television; watches television; and wants to be on television.
Ultimately, that means the press has leverage. The boycott of the press pool by the other networks is therefore the strongest way to push Trump to relent. But it’s self-interest, not the First Amendment, that will get him to do so.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”
Disclaimer: This report is auto generated from the Bloomberg news service. ThePrint holds no responsibility for its content.
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