President Trump’s viewpoint-based exclusion of three outlets from the White House is clearly on the wrong side of the Supreme Court's First Amendment doctrine.
As a (personal) rule, I don't moderate comments unless they are spam or abusive. It's possible the algorithm did something to your prior comments, but I haven't messed with that, either.
It seems that Substack's algorithm must have hidden and deleted your previous comment. I don't like it when platforms censor comments without providing any reason.
Regarding personal attacks, I think we should all try to avoid that, but I don't think they should be deleted except in extreme circumstances (threats, flooding the comments section with personal attacks, etc.). As an example, another reader here once call me a "contemptible worm" and said that my comments should be suppressed, but I strongly support free speech and wouldn't want that person's comments deleted.
It's true that it's unpleasant to engage with others when you know you'll be personally attacked, but we should try not to let that deter us from expressing sincerely held beliefs.
I read your hidden comment. I don't see anything that deserves to be censored, but Substack's comment policy (1) seems to incorporate laws from Europe (at least in some cases), which can be quite censorious. Maybe your comparison of president Trump to a well-known fascist German dictator got your comment hidden; who knows? (I don't mention his name just in case that would make Substack hide my comment, too :--)
I encourage you to complain to Substack. Their web page on their comment policy has instructions for registering such complaints.
[Added later: To avoid misunderstanding, I was encouraging you to complain to Substack about their own algorithms and policies, not about Professor Vladeck. He already said that he didn't hide your comment. Perhaps he chose some seemingly reasonable settings and Substack's algorithm (probably AI-based) went off the rails.]
Second, I've already explained that it's the algorithm, not me, that chooses what to block. I'm looking into how I can water it down (I can't turn it off entirely given the volume of spam comments this newsletter attracts), but your not-so-subtle insinuation that I was just lying earlier, rather than indulging the possibility that I was telling the truth, is unfortunate.
Finally, if you think that, by taking the time each week to write and publish a newsletter that's available to the general public, I'm hoping for a "captive audience," I respectfully suggest that you think a bit more.
"Here, though, President Trump has done that work for them, not just in what he said, but in the reporting that his Truth Social post “blindsided the press office,” which will certainly be deployed to disprove any argument that this was actually a considered policy choice on the White House’s part. That also means, among other things, that a standalone retaliation claim should also be on firmer footing than it was in the AP case."
There has been indications that some of Trump's decisions, particularly those announced on Truth Social, are increasingly less well-considered, even among his small group of confidants. This could another rant, cooked up on his own, (or perhaps with some material provided by Natalie?)
Significantly, I believe, Susie Wiles was away when he made this decision. Not that she'll do anything about it though. Had she been there she might have been a deterrent, but once the Mad King makes a pronouncement there's no way hardcore loyalist like Wiles is going to try and dissuade him.
I look forward to the lawsuit from the excluded news outlets. I wonder, as well, how Judge Rao will avoid her prior words if she ends up on the panel that reviews the Administration's appeal.
Well, she could consider some very clear SCOTUS precedent.
In 1995 in Rosenberger v. Rector & Visitors of the University of Virginia, SCOTUS emphasized that any purported public servant who “targets” any “particular views” necessarily commits a particularly “blatant” and “egregious” form of “violation of the First Amendment.”
"[Our public servants have no power to impose any] burdens on certain speakers based on the content of their expression. When the government targets not [merely] subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."
In Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of L. v. Martinez in 2010 SCOTUS re-emphasized that “a defining characteristic of limited public forums” is that access is limited. Of course, the government may reserve access to a particular forum to “certain groups” and even for specified uses. Even so, our public servants may do so only to serve a public purpose. As SCOTUS re-emphasized, “Any access barrier must be [both] reasonable and viewpoint neutral.”
Judge Rao also could consider what a legitimate judicial opinion looks like, specifically regarding access to the means of communication that a public official uses.
In 2019, the Second Circuit already instructed Trump, personally, that he cannot block access to a means of communication that he uses to communicate with the public. SCOTUS left that in place until Trump left office.
After that, in 2024, SCOTUS (unanimously) precluded blocking comments on a public official's means of communication with the public.
Judge Rao also could consider SCOTUS precedent in Nevada Commission on Ethics v. Carrigan (2011) addressing dispositive principles. Trump's communications with the public from the White House are "not personal to" him; each such communication "belongs to the people;" Trump "has no personal right to it." All such public communications "pertain to" presidents "not as individuals but as political representatives executing" official functions.
In Trump v. United States, SCOTUS also addressed the same principle. Presidents have absolute immunity when performing a "core constitutional" duty and they might have some immunity when performing an "official" function.
I wonder if all press organizations and their leaders, whatever their political and policy preferences, will join lawsuits agantst this brazen assualt on, or the dismemberment of the First Amendment, or there will be those among them who tacitly or even actively capitulate - think law firms and universities and major corporations who have bent the knee, not once , but now multiple times - perhaps hoping that a future non-Trump regime they do not like will not act in the same way against them. And if one of more of the lawsuits ends up in the Supreme Court, will Kavanaugh express the belief that maybe these actions are not unconstituional, and will Alito argue that any reporter or organization which dares suggest that some religious organizations are less than holy are attacking people of faith, and hence do not deserve First Amendment protection - referring to blasphemy laws in 17th century Britain as justification for this position? Will Paramount change its name in future to to an antonym such as Subordinate or Inferior to acknowledge the reality of its future role with respect to the current White House?
I hope there's widespread opposition to president Trump's latest attack on the free press.
Regarding reliance on ancient British laws, I've noticed that many legal arguments make reference to such laws, partly because our legal system was partly inherited from Britain. This happens in some cases whose outcome is favored by the "right" and some favored by the "left".
A notable example is Roe v. Wade, in which the majority mentions England's first criminal abortion statute (Lord Ellenborough's Act, 43 Geo. 3, c. 58, from 1803). They even go back to abortion laws in ancient Persia, Greece, and Rome.
Fortunately science and scientists do not invoke precedents such as the phlogiston theory of combustion or Ptolemy's geocentric- or Earth-centered model of the solar system to reach findings about the nature and laws of the universe and how to engineer, build and operate many of the goods and services we rely on today. They also recognize that our current and incomplete understanding is liable to be superceded or have to be modified in future. In my opinion the US, while rightly proud of its adherence to the rule of law (not lawyers) - which is now being rocked to its very foundations - pays too much attention to legal precedents, because as you point out or imply John, you can probably find and pick and choose precedents from some period and place that support any position or ruling on sensitive issues such as abortion that you prefer. Mores and knowledge do change and evolve. A truly conservative position is not one that is fixed and unalterable for eternity from what it was at some favorite period in some admired society, from which no change is desirable or even acceptable. It is one which acknowledges that society is a living organism passed down from and between generations, and change should be respectful of past practices. But change is possible and desirable, so long as, in the spirit of Edmund Burke, it avoids violent disruptions that destroy social cohesion and as history shows can lead directly to chaos and tyranny. After all huge changes have occurred over time. When someone with a MAGA cap on speaks about Making America Great Again, the question is when was it great or at least greater than it is now - Pick a period, any period, depending on your views today about the respective roles of men and women, slavery, religion etc. I am reminded of a statement about a different discipline, namely Economics. John Maynard Keynes wrote, ""Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist." This comment applies even more strongly - and potentially disastrously - to some Supreme Court (In)Justices and defunct judges or legal authorities.
I agree that we should find a balance between viewing society as a living organism and being respectful of past practices. One extreme end of that spectrum adheres strictly to the original viewpoint; the other says we should essentially ignore the past. Neither extreme is a practical approach.
My main point was that in our polarized society, both sides often rely on past precedents when it suits them and reject them when it doesn't. Of course, all of this involves value judgments, so what the "right" answer is isn't always entirely clear (though it is for president Trump's imperial decrees and other clearly anti-American acts).
This action harms and reduces the credibility of all (legitimate) press organizations. For any news organization that has not been banned, it is reasonable for their readers or viewers to question whether their stories have been censored by the White House, either by submitting for pre-approval, or by self-censorship.
Indeed. The end point is that all or the only news is government approved news. As in the days of the Soviet Union, and the joke at that time. you can choose between having no News in Pravda (Truth) or no Truth in Izvestia (News). Truth Social, to use a contemporary example in the US, also contains no Truth and its contents and messaging are vindictively Antisocial.
I once had an office mate from the Soviet Union who for some reason thought he had to convince me of how awful the Soviet Union was (I never thought otherwise). He once said that Soviet officials easily controlled the foreign press by denying access to those who published things the officials didn't like. His point was the the foreign press was easily manipulated to self-censor to avoid being shut out, but president Trump's treatment of the press could have been taken directly from the Soviet era.
The three (as of now) banned outlets will prevail; that's inevitable. It's only a question of how long it takes -- and it shouldn't take very long. My question is why are any other news media continuing to cover Trump while colleagues are barred for viewpoint reasons. Do the others not realize that by barring CNN for its negative viewpoint, Trump is essentially blessing CBS for its supportive slant?? Or at least that's the strong implication. If all media stood with "the 3", Americans would be spared the sight and sound of our president's "weaves" and bloviation, at least for a few days. A little respite would do us all good.
While it does implicate the non-banned outlets, not covering Trump is probably desirable for Trump. Better for the non-banned outlets would be to join the lawsuit as they have also been harmed.
Major television networks agreed to suspend their pooled coverage of the president on Monday. Four other networks that shared the responsibility for providing television coverage of presidential events with CNN — ABC, CBS, Fox News and NBC — said on Monday that they would suspend those efforts, which entail distributing footage that is carried by news organizations worldwide.
I'm surprised that Fox News is in that list. They're apparently bright enough to see the possibility of blowback. Fox News correspondent Jacqui Heinrich said "When a new bar is set, and when a new precedent is set that one administration takes, it could bind future administrations. So while people might cheer this on, bear in mind the long reach of decisions like this." (1)
As for their readers, the top-rated comment misses the point: "Where does it say in the first amendment that the press has the right to go where they want, do what they want, and force someone to talk to them? All it says is that the government cannot stop them from reporting--truth or lies, either one."
The problem that MS Now, Politico, and CNN run into is the "violence" problem when dealing with authoritarians like Trump. Unless there is some form of punishment in retaliation, a win that simply maintains the status quo is insufficient; there must be "violence" against Trump in some fashion. In criminal law, that's locking someone up. In civil law, like here, that would be a fine paid by Trump. A civil fine of legal fees paid for by the Treasury does not touch Trump personally. Trump being forced to sit, like Clinton, for a long and humiliating deposition is partial "violence" against his time and his dignity.
"Preach that to the heavens", says Stewart, "that is so true and so missing": the attack on peaceful resistance solidifies opposition to the violence. We saw that in the '60s civil right's win, culminating not in the win through violence against racists but in the tragedy of the win due to violence against JFK. Now SCOTUS says we have forgotten, and tries to rewrite history, but Trump is besotted with himself (can I say that??) and look what he has done now.
I agree with your comment, but I don't see why you chose to use the term "violence" (in quotation marks), unless you mean that enforcement of the laws ultimately relies on the use of force if the person has to be arrested and resists. But few people would interpret '"violence" against Trump' in that indirect way.
The term is purposeful to regard any state-enforced action against an individual as "violent." It is also to separate the punishments from "I'll sue to maintain the status quo and they'll feel sad" like that is a real deterrent.
Prices that "others" pay and not the authoritarian or fascist in question are meaningless. There is no feedback like touching a hot stove. Economic "violence" is the state forcing punishment, albeit on a bank account or seizing property (itself "violence" by trespassing).
Finally, I am believer in the theory that fascists only speak in actions, not in words, and their actions tend heavily (if not exclusively) towards violence. Therefore, you punch fascists as a way of effective communication. Using words is what they view as weakness.
Even as a metaphor, ‘violence’ is inappropriate here. It treats inconvenience and wounded dignity as equivalent to physical force or serious harm, which weakens the meaning of the word and obscures the distinction between symbolic offense and actual violence.
Mere assertions by judges about a place being a "nonpublic forum" or "not any type of forum" (as in Associated Press v. Budowich) are obviously false and contrary to our Constitution. The only instance in which the People in our Constitution speak about a forum as being "public" is in the Sixth Amendment: "all criminal prosecutions" must be by "public trial." So a courtroom necessarily is a public forum for purposes of conducting a criminal prosecution. No court has any power to exclude any person (including any journalist) because of their mere opinion or viewpoint. Even so, many restrictions are lawfully imposed on who may have access to which parts of the courtroom and even where and whether some members of the general public have access, as well as who may speak and when and about what they may speak.
In the D.C. Circuit decision discussed (AP v. Budowich) the two judges in the majority flatly misrepresented that the Oval Office is "not any type of forum. As such, the White House may [discriminate based on] journalists' viewpoints when deciding whether to grant access."
As those same judges acknowledged, a so-called "nonpublic forum is government property that is not by tradition or designation a forum for public communication." But the Oval Office clearly and irrefutably is a forum that, by tradition, has been used quite often for public communications. Just watch how Trump routinely uses it for that very purpose.
Moreover, as those judges responsible for the AP decision acknowledged:
"The White House manages access by requiring journalists to obtain a press credential called a hard pass. More than one thousand journalists hold hard passes, through which they may access spaces such as the James S. Brady Briefing Room, where the White House Press Secretary delivers regular briefings. . . . A small subset (around one percent) of hard pass holders is sometimes invited into even more restricted White House spaces, such as the Oval Office and the Cabinet Room. This group of privileged journalists, referred to as the 'press pool,' has historically been selected by the White House Correspondents' Association, a private organization of which the AP is a founding member."
Finally, it's well worth noting that nothing the two judges responsible for the AP decision said regarding the First Amendment constituted precedent. It was mere dicta.
When the AP requested en banc review (by the full court), one of the judges who concurred in the denial of the request highlighted that “the emergency panel's unpublished stay is a nonprecedential order that did not [even] purport to resolve the appeal's merits.” The “order's inability” to “bind future panels to an exceptionally important legal principle strongly counsels against full-court intervention.”
The argument or implication that the First Amendment doesn't control merely because there's a limited right to speak (or even no right to speak) at a press event misses a crucial point emphasized in SCOTUS precedent. The First Amendment secures our right to hear as much as a journalist's right to speak.
Again, this is an instance in which the SCOTUS majority's opinion in Citizens United in 2010 might do some good. "When Government seeks to use" official "power" to "command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves." "The censorship we now confront" has "muffle[d some of] the voices that best represent the most significant segments of the economy."
More important, "the electorate [has been] deprived of information, knowledge and opinion vital to its function." “The right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government” (self-government implies sovereignty) and it is “a necessary means to protect it” (our self-government and our sovereignty). Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power and duty of sovereignty.
The first principle here is that “the people are sovereign” in our “republic.” Our powers as sovereigns necessarily include “the ability of the citizenry to make informed choices” about many public servants and public issues. That “ability” is “essential” to the operation of our Constitution. “Speech” (and hearing speech) “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.”
“Political speech” is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. “The Constitution” clearly “confers upon voters” (as sovereigns) the “power to choose” (directly or indirectly) some of our public servants. “Discussion of public issues and debate on the qualifications of” current or potential public servants “are integral to the operation of the system of government established by our Constitution.”
“In the realm of protected speech,” government “is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.” “Political speech” is “indispensable to decisionmaking in a democracy, and this” is “true” regardless of whether “the speech comes from a corporation” or “an individual.”
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.” “As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” “The First Amendment protects speech and speaker, and the ideas that flow from each.” So “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”
“[T]he worth of speech” cannot “depend upon the identity of its source.” “Government cannot restrict political speech based on the speaker’s corporate identity” or individual identity. “[T]he First Amendment does not allow political speech restrictions based on a speaker’s corporate identity” or individual identity.
Our sovereignty means that “political speech” (and the ability to hear political speech) “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech" (and the ability to hear political speech) "are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.” That is a burden of proof that Trump cannot bear.
Robert Hubbell, Esq. in his "Today's Edition Newsletter" on Saturday, September 19, 2026 referenced a quote by Benjamin Franklin that is prophetic. Here is the except from his post:
"Aspiring tyrants have always tried to suppress freedom of speech and the press. In 1722, sixteen-year-old Benjamin Franklin stepped in to run The New-England Courant while his older brother was in jail for offending colonial authorities. With that attack on freedom of the press firmly in mind, Franklin published the following excerpt from the London Journal:
'Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech; a Thing terrible to Publick Traytors. [¶]
That Men ought to speak well of their Governours is true, while their Governours deserve to be well spoken of; but to do publick Mischief, without hearing of it, is only the Prerogative and Felicity of Tyranny: A free People will be shewing that they are so, by their Freedom of Speech.'
This bears repeating, three centuries later: A free people show that they are so by their freedom of speech."
Robert has been and continues to be a fountain of pragmatism and inspiration during these difficult times. Here is the link to Robert's Newsletter:
In 2022 in N.Y. State Rifle & Pistol Ass'n v. Bruen, SCOTUS re-emphasized principles that were emphasized in District of Columbia v. Heller in 2008, explaining why quotations such as the one above from 1722, and the one below from 1774 are vital.
“Constitutional rights are enshrined with the scope they were understood” (by the people) “to have when the people adopted them, whether or not future legislatures” or “judges think that scope too broad.” It is crucial to recall that the People in the 1780’s and 1790’s “widely understood” that the First Amendment (merely) “codified” multiple “pre-existing right[s],” that clearly were not “granted by the Constitution” or “in any manner dependent upon” the Constitution for their “existence.” The First Amendment “is the [mere] product of” a long history of “an interest balancing by the people.” “It is this balance—struck by the traditions of the American people—that demands” the “unqualified deference” of all public servants.
Past SCOTUS justices who cared to inform Americans about the crucial truth about and vital purposes of our freedom of expression and communication kindly and conscientiously quoted a crucial clarification by the First Continental Congress in 1774. SCOTUS justices did so in majority opinions in Near v. Minnesota, 283 U.S. 697 (1931) and Roth v. United States, 354 U.S. 476 (1957).
On October 26, 1774, the First Continental Congress penned its Letter to the Inhabitants of Quebec and declared “five great rights” of all American citizens. That august assemblage included some of the brightest stars and best lawyers, not only of the American Revolution, but also of the future new government under our Constitution starting in 1789. It included the commander in chief of the Continental Army (George Washington) and our first two presidents, Washington and John Adams, and our first SCOTUS Chief Justice, John Jay (each of whom also was a member of the Second Continental Congress).
One of the “great rights” they declared was “the freedom of the press.” Fortunately, the 1774 Congress did more than merely write that right. They emphasized its meaning and power:
"The importance of this consists," in part, in "the advancement of truth" and the "diffusion of liberal sentiments on the administration of Government," by "ready communication of thoughts between [citizens], and its consequential promotion of union among [citizens], whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs."
SCOTUS also quoted the same language from 1774 in Thornhill v. Alabama, 310 U.S. 88 (1940), but SCOTUS substituted “ashamed” for “shamed.” Thornhill is a profoundly important opinion that is almost unknown to Americans. The Thornhill SCOTUS justices faithfully supported our Constitution with the following crucial elaboration which emphasizes the importance--to the People and to our Constitution--of facilitating timely discussion (not delayed by decades) pertaining to "the exigencies" of our time.
"The freedom of speech and of the press" (the freedom of expression and communication) that the People "guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."
Thank you for the additional quotations and references. One more purely rhetorical quotation (given the owner/publisher’s proclivity to kiss Trump‘s ass): “Democracy dies in darkness”
"Political journalists boycotted a Downing Street briefing on Monday after one of Boris Johnson’s aides banned selected reporters from attending.
The confrontation took place inside No 10 after Lee Cain, Johnson’s most senior communications adviser, tried to exclude reporters from the Mirror, the i, HuffPost, PoliticsHome, the Independent and others from an official government briefing.
...
When Cain told the banned journalists to leave, the rest of the journalists decided to walk out collectively rather than allow Downing Street to choose who scrutinises and reports on the government.
Among those who refused the briefing on the UK’s trade negotiations with the EU were the BBC’s Laura Kuenssberg, ITV’s Robert Peston, and political journalists from Sky News, the Daily Mail, the Telegraph, the Sun, the Financial Times and the Guardian."
Not clear if the reporters had to clear this with their HQs first, but apparently not.
Steve, I don't know if you saw that FAUX was so disgusted that they joined MSNBC, Politico, and CNN in solidarity. You know things are messed up when FAUX joins the others in solidarity.
As I mentioned in a reply to Jack Jordan, their action may be self-serving. Fox News correspondent Jacqui Heinrich warned viewers about the possibility of blowback if a Democratic administration takes over. At least they have the foresight to understand why we should support press freedom, unlike their readers (based on the most-liked comment).
The pretextual arguments will surely fail in this case (even Judge Rao likely will find this one hard to swallow) because Trump was so blatant about view point discrimination and threatening other media outlets with the same treatment if they publish stories he doesn't like. The broader question for the Roberts Court is how willing they will be to look behind the pretext, particularly in cases where the pretext is national security. Limiting environmental regulations involving Musk's polluting data centers is an example. Department of Defense uses AI for targeting, Trump's war against Iran continues unabated, therefor it is necessary to allow data centers to pollute on national security grounds.
why would we expect the court to be any more willing to acknowledge the existence of the president's social media posts in this case than it was in trump v hawaii?
As a (personal) rule, I don't moderate comments unless they are spam or abusive. It's possible the algorithm did something to your prior comments, but I haven't messed with that, either.
It seems that Substack's algorithm must have hidden and deleted your previous comment. I don't like it when platforms censor comments without providing any reason.
Regarding personal attacks, I think we should all try to avoid that, but I don't think they should be deleted except in extreme circumstances (threats, flooding the comments section with personal attacks, etc.). As an example, another reader here once call me a "contemptible worm" and said that my comments should be suppressed, but I strongly support free speech and wouldn't want that person's comments deleted.
It's true that it's unpleasant to engage with others when you know you'll be personally attacked, but we should try not to let that deter us from expressing sincerely held beliefs.
I read your hidden comment. I don't see anything that deserves to be censored, but Substack's comment policy (1) seems to incorporate laws from Europe (at least in some cases), which can be quite censorious. Maybe your comparison of president Trump to a well-known fascist German dictator got your comment hidden; who knows? (I don't mention his name just in case that would make Substack hide my comment, too :--)
I encourage you to complain to Substack. Their web page on their comment policy has instructions for registering such complaints.
[Added later: To avoid misunderstanding, I was encouraging you to complain to Substack about their own algorithms and policies, not about Professor Vladeck. He already said that he didn't hide your comment. Perhaps he chose some seemingly reasonable settings and Substack's algorithm (probably AI-based) went off the rails.]
[1] https://substack.com/content
First, I teach at Georgetown, not GW.
Second, I've already explained that it's the algorithm, not me, that chooses what to block. I'm looking into how I can water it down (I can't turn it off entirely given the volume of spam comments this newsletter attracts), but your not-so-subtle insinuation that I was just lying earlier, rather than indulging the possibility that I was telling the truth, is unfortunate.
Finally, if you think that, by taking the time each week to write and publish a newsletter that's available to the general public, I'm hoping for a "captive audience," I respectfully suggest that you think a bit more.
"Here, though, President Trump has done that work for them, not just in what he said, but in the reporting that his Truth Social post “blindsided the press office,” which will certainly be deployed to disprove any argument that this was actually a considered policy choice on the White House’s part. That also means, among other things, that a standalone retaliation claim should also be on firmer footing than it was in the AP case."
There has been indications that some of Trump's decisions, particularly those announced on Truth Social, are increasingly less well-considered, even among his small group of confidants. This could another rant, cooked up on his own, (or perhaps with some material provided by Natalie?)
Significantly, I believe, Susie Wiles was away when he made this decision. Not that she'll do anything about it though. Had she been there she might have been a deterrent, but once the Mad King makes a pronouncement there's no way hardcore loyalist like Wiles is going to try and dissuade him.
I look forward to the lawsuit from the excluded news outlets. I wonder, as well, how Judge Rao will avoid her prior words if she ends up on the panel that reviews the Administration's appeal.
Well, she could consider some very clear SCOTUS precedent.
In 1995 in Rosenberger v. Rector & Visitors of the University of Virginia, SCOTUS emphasized that any purported public servant who “targets” any “particular views” necessarily commits a particularly “blatant” and “egregious” form of “violation of the First Amendment.”
"[Our public servants have no power to impose any] burdens on certain speakers based on the content of their expression. When the government targets not [merely] subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."
In Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of L. v. Martinez in 2010 SCOTUS re-emphasized that “a defining characteristic of limited public forums” is that access is limited. Of course, the government may reserve access to a particular forum to “certain groups” and even for specified uses. Even so, our public servants may do so only to serve a public purpose. As SCOTUS re-emphasized, “Any access barrier must be [both] reasonable and viewpoint neutral.”
FAUX has joined the others in solidarity. Yes, it's that fucked up.
Judge Rao also could consider what a legitimate judicial opinion looks like, specifically regarding access to the means of communication that a public official uses.
In 2019, the Second Circuit already instructed Trump, personally, that he cannot block access to a means of communication that he uses to communicate with the public. SCOTUS left that in place until Trump left office.
After that, in 2024, SCOTUS (unanimously) precluded blocking comments on a public official's means of communication with the public.
See https://constitutioncenter.org/blog/the-supreme-court-and-social-media-can-government-officials-block-online-comments
Judge Rao also could consider SCOTUS precedent in Nevada Commission on Ethics v. Carrigan (2011) addressing dispositive principles. Trump's communications with the public from the White House are "not personal to" him; each such communication "belongs to the people;" Trump "has no personal right to it." All such public communications "pertain to" presidents "not as individuals but as political representatives executing" official functions.
In Trump v. United States, SCOTUS also addressed the same principle. Presidents have absolute immunity when performing a "core constitutional" duty and they might have some immunity when performing an "official" function.
I wonder if all press organizations and their leaders, whatever their political and policy preferences, will join lawsuits agantst this brazen assualt on, or the dismemberment of the First Amendment, or there will be those among them who tacitly or even actively capitulate - think law firms and universities and major corporations who have bent the knee, not once , but now multiple times - perhaps hoping that a future non-Trump regime they do not like will not act in the same way against them. And if one of more of the lawsuits ends up in the Supreme Court, will Kavanaugh express the belief that maybe these actions are not unconstituional, and will Alito argue that any reporter or organization which dares suggest that some religious organizations are less than holy are attacking people of faith, and hence do not deserve First Amendment protection - referring to blasphemy laws in 17th century Britain as justification for this position? Will Paramount change its name in future to to an antonym such as Subordinate or Inferior to acknowledge the reality of its future role with respect to the current White House?
I hope there's widespread opposition to president Trump's latest attack on the free press.
Regarding reliance on ancient British laws, I've noticed that many legal arguments make reference to such laws, partly because our legal system was partly inherited from Britain. This happens in some cases whose outcome is favored by the "right" and some favored by the "left".
A notable example is Roe v. Wade, in which the majority mentions England's first criminal abortion statute (Lord Ellenborough's Act, 43 Geo. 3, c. 58, from 1803). They even go back to abortion laws in ancient Persia, Greece, and Rome.
Fortunately science and scientists do not invoke precedents such as the phlogiston theory of combustion or Ptolemy's geocentric- or Earth-centered model of the solar system to reach findings about the nature and laws of the universe and how to engineer, build and operate many of the goods and services we rely on today. They also recognize that our current and incomplete understanding is liable to be superceded or have to be modified in future. In my opinion the US, while rightly proud of its adherence to the rule of law (not lawyers) - which is now being rocked to its very foundations - pays too much attention to legal precedents, because as you point out or imply John, you can probably find and pick and choose precedents from some period and place that support any position or ruling on sensitive issues such as abortion that you prefer. Mores and knowledge do change and evolve. A truly conservative position is not one that is fixed and unalterable for eternity from what it was at some favorite period in some admired society, from which no change is desirable or even acceptable. It is one which acknowledges that society is a living organism passed down from and between generations, and change should be respectful of past practices. But change is possible and desirable, so long as, in the spirit of Edmund Burke, it avoids violent disruptions that destroy social cohesion and as history shows can lead directly to chaos and tyranny. After all huge changes have occurred over time. When someone with a MAGA cap on speaks about Making America Great Again, the question is when was it great or at least greater than it is now - Pick a period, any period, depending on your views today about the respective roles of men and women, slavery, religion etc. I am reminded of a statement about a different discipline, namely Economics. John Maynard Keynes wrote, ""Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist." This comment applies even more strongly - and potentially disastrously - to some Supreme Court (In)Justices and defunct judges or legal authorities.
I agree that we should find a balance between viewing society as a living organism and being respectful of past practices. One extreme end of that spectrum adheres strictly to the original viewpoint; the other says we should essentially ignore the past. Neither extreme is a practical approach.
My main point was that in our polarized society, both sides often rely on past precedents when it suits them and reject them when it doesn't. Of course, all of this involves value judgments, so what the "right" answer is isn't always entirely clear (though it is for president Trump's imperial decrees and other clearly anti-American acts).
Just wait until the viewpoint-diversity crew revamps the Nat Sci departments.
This action harms and reduces the credibility of all (legitimate) press organizations. For any news organization that has not been banned, it is reasonable for their readers or viewers to question whether their stories have been censored by the White House, either by submitting for pre-approval, or by self-censorship.
Indeed. The end point is that all or the only news is government approved news. As in the days of the Soviet Union, and the joke at that time. you can choose between having no News in Pravda (Truth) or no Truth in Izvestia (News). Truth Social, to use a contemporary example in the US, also contains no Truth and its contents and messaging are vindictively Antisocial.
I once had an office mate from the Soviet Union who for some reason thought he had to convince me of how awful the Soviet Union was (I never thought otherwise). He once said that Soviet officials easily controlled the foreign press by denying access to those who published things the officials didn't like. His point was the the foreign press was easily manipulated to self-censor to avoid being shut out, but president Trump's treatment of the press could have been taken directly from the Soviet era.
The three (as of now) banned outlets will prevail; that's inevitable. It's only a question of how long it takes -- and it shouldn't take very long. My question is why are any other news media continuing to cover Trump while colleagues are barred for viewpoint reasons. Do the others not realize that by barring CNN for its negative viewpoint, Trump is essentially blessing CBS for its supportive slant?? Or at least that's the strong implication. If all media stood with "the 3", Americans would be spared the sight and sound of our president's "weaves" and bloviation, at least for a few days. A little respite would do us all good.
While it does implicate the non-banned outlets, not covering Trump is probably desirable for Trump. Better for the non-banned outlets would be to join the lawsuit as they have also been harmed.
Major television networks agreed to suspend their pooled coverage of the president on Monday. Four other networks that shared the responsibility for providing television coverage of presidential events with CNN — ABC, CBS, Fox News and NBC — said on Monday that they would suspend those efforts, which entail distributing footage that is carried by news organizations worldwide.
Gift link: https://www.nytimes.com/live/2026/09/21/business/trump-white-house-cnn-politico-msnow?unlocked_article_code=1.C1E.-t70.iLnbYOdbwpCQ&smid=url-share
I'm surprised that Fox News is in that list. They're apparently bright enough to see the possibility of blowback. Fox News correspondent Jacqui Heinrich said "When a new bar is set, and when a new precedent is set that one administration takes, it could bind future administrations. So while people might cheer this on, bear in mind the long reach of decisions like this." (1)
As for their readers, the top-rated comment misses the point: "Where does it say in the first amendment that the press has the right to go where they want, do what they want, and force someone to talk to them? All it says is that the government cannot stop them from reporting--truth or lies, either one."
[1] https://www.foxnews.com/media/white-house-tv-pool-to-suspend-coverage-of-trump-events
The problem that MS Now, Politico, and CNN run into is the "violence" problem when dealing with authoritarians like Trump. Unless there is some form of punishment in retaliation, a win that simply maintains the status quo is insufficient; there must be "violence" against Trump in some fashion. In criminal law, that's locking someone up. In civil law, like here, that would be a fine paid by Trump. A civil fine of legal fees paid for by the Treasury does not touch Trump personally. Trump being forced to sit, like Clinton, for a long and humiliating deposition is partial "violence" against his time and his dignity.
"Preach that to the heavens", says Stewart, "that is so true and so missing": the attack on peaceful resistance solidifies opposition to the violence. We saw that in the '60s civil right's win, culminating not in the win through violence against racists but in the tragedy of the win due to violence against JFK. Now SCOTUS says we have forgotten, and tries to rewrite history, but Trump is besotted with himself (can I say that??) and look what he has done now.
I agree with your comment, but I don't see why you chose to use the term "violence" (in quotation marks), unless you mean that enforcement of the laws ultimately relies on the use of force if the person has to be arrested and resists. But few people would interpret '"violence" against Trump' in that indirect way.
The term is purposeful to regard any state-enforced action against an individual as "violent." It is also to separate the punishments from "I'll sue to maintain the status quo and they'll feel sad" like that is a real deterrent.
Prices that "others" pay and not the authoritarian or fascist in question are meaningless. There is no feedback like touching a hot stove. Economic "violence" is the state forcing punishment, albeit on a bank account or seizing property (itself "violence" by trespassing).
Finally, I am believer in the theory that fascists only speak in actions, not in words, and their actions tend heavily (if not exclusively) towards violence. Therefore, you punch fascists as a way of effective communication. Using words is what they view as weakness.
Even as a metaphor, ‘violence’ is inappropriate here. It treats inconvenience and wounded dignity as equivalent to physical force or serious harm, which weakens the meaning of the word and obscures the distinction between symbolic offense and actual violence.
Mere assertions by judges about a place being a "nonpublic forum" or "not any type of forum" (as in Associated Press v. Budowich) are obviously false and contrary to our Constitution. The only instance in which the People in our Constitution speak about a forum as being "public" is in the Sixth Amendment: "all criminal prosecutions" must be by "public trial." So a courtroom necessarily is a public forum for purposes of conducting a criminal prosecution. No court has any power to exclude any person (including any journalist) because of their mere opinion or viewpoint. Even so, many restrictions are lawfully imposed on who may have access to which parts of the courtroom and even where and whether some members of the general public have access, as well as who may speak and when and about what they may speak.
In the D.C. Circuit decision discussed (AP v. Budowich) the two judges in the majority flatly misrepresented that the Oval Office is "not any type of forum. As such, the White House may [discriminate based on] journalists' viewpoints when deciding whether to grant access."
As those same judges acknowledged, a so-called "nonpublic forum is government property that is not by tradition or designation a forum for public communication." But the Oval Office clearly and irrefutably is a forum that, by tradition, has been used quite often for public communications. Just watch how Trump routinely uses it for that very purpose.
Moreover, as those judges responsible for the AP decision acknowledged:
"The White House manages access by requiring journalists to obtain a press credential called a hard pass. More than one thousand journalists hold hard passes, through which they may access spaces such as the James S. Brady Briefing Room, where the White House Press Secretary delivers regular briefings. . . . A small subset (around one percent) of hard pass holders is sometimes invited into even more restricted White House spaces, such as the Oval Office and the Cabinet Room. This group of privileged journalists, referred to as the 'press pool,' has historically been selected by the White House Correspondents' Association, a private organization of which the AP is a founding member."
Finally, it's well worth noting that nothing the two judges responsible for the AP decision said regarding the First Amendment constituted precedent. It was mere dicta.
When the AP requested en banc review (by the full court), one of the judges who concurred in the denial of the request highlighted that “the emergency panel's unpublished stay is a nonprecedential order that did not [even] purport to resolve the appeal's merits.” The “order's inability” to “bind future panels to an exceptionally important legal principle strongly counsels against full-court intervention.”
The argument or implication that the First Amendment doesn't control merely because there's a limited right to speak (or even no right to speak) at a press event misses a crucial point emphasized in SCOTUS precedent. The First Amendment secures our right to hear as much as a journalist's right to speak.
Again, this is an instance in which the SCOTUS majority's opinion in Citizens United in 2010 might do some good. "When Government seeks to use" official "power" to "command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves." "The censorship we now confront" has "muffle[d some of] the voices that best represent the most significant segments of the economy."
More important, "the electorate [has been] deprived of information, knowledge and opinion vital to its function." “The right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government” (self-government implies sovereignty) and it is “a necessary means to protect it” (our self-government and our sovereignty). Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power and duty of sovereignty.
The first principle here is that “the people are sovereign” in our “republic.” Our powers as sovereigns necessarily include “the ability of the citizenry to make informed choices” about many public servants and public issues. That “ability” is “essential” to the operation of our Constitution. “Speech” (and hearing speech) “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.”
“Political speech” is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. “The Constitution” clearly “confers upon voters” (as sovereigns) the “power to choose” (directly or indirectly) some of our public servants. “Discussion of public issues and debate on the qualifications of” current or potential public servants “are integral to the operation of the system of government established by our Constitution.”
“In the realm of protected speech,” government “is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.” “Political speech” is “indispensable to decisionmaking in a democracy, and this” is “true” regardless of whether “the speech comes from a corporation” or “an individual.”
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.” “As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” “The First Amendment protects speech and speaker, and the ideas that flow from each.” So “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”
“[T]he worth of speech” cannot “depend upon the identity of its source.” “Government cannot restrict political speech based on the speaker’s corporate identity” or individual identity. “[T]he First Amendment does not allow political speech restrictions based on a speaker’s corporate identity” or individual identity.
Our sovereignty means that “political speech” (and the ability to hear political speech) “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech" (and the ability to hear political speech) "are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.” That is a burden of proof that Trump cannot bear.
Of course the case load of the Supreme Court must be reduced. How else will they have sufficient time to rule by fiat and whim on the Shadow Docket?
Robert Hubbell, Esq. in his "Today's Edition Newsletter" on Saturday, September 19, 2026 referenced a quote by Benjamin Franklin that is prophetic. Here is the except from his post:
"Aspiring tyrants have always tried to suppress freedom of speech and the press. In 1722, sixteen-year-old Benjamin Franklin stepped in to run The New-England Courant while his older brother was in jail for offending colonial authorities. With that attack on freedom of the press firmly in mind, Franklin published the following excerpt from the London Journal:
'Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech; a Thing terrible to Publick Traytors. [¶]
That Men ought to speak well of their Governours is true, while their Governours deserve to be well spoken of; but to do publick Mischief, without hearing of it, is only the Prerogative and Felicity of Tyranny: A free People will be shewing that they are so, by their Freedom of Speech.'
This bears repeating, three centuries later: A free people show that they are so by their freedom of speech."
Robert has been and continues to be a fountain of pragmatism and inspiration during these difficult times. Here is the link to Robert's Newsletter:
https://roberthubbell.substack.com/p/this-far-no-further?r=flasu&utm_campaign=post-expanded-share&utm_medium=web
That good quotation deserves another.
In 2022 in N.Y. State Rifle & Pistol Ass'n v. Bruen, SCOTUS re-emphasized principles that were emphasized in District of Columbia v. Heller in 2008, explaining why quotations such as the one above from 1722, and the one below from 1774 are vital.
“Constitutional rights are enshrined with the scope they were understood” (by the people) “to have when the people adopted them, whether or not future legislatures” or “judges think that scope too broad.” It is crucial to recall that the People in the 1780’s and 1790’s “widely understood” that the First Amendment (merely) “codified” multiple “pre-existing right[s],” that clearly were not “granted by the Constitution” or “in any manner dependent upon” the Constitution for their “existence.” The First Amendment “is the [mere] product of” a long history of “an interest balancing by the people.” “It is this balance—struck by the traditions of the American people—that demands” the “unqualified deference” of all public servants.
Past SCOTUS justices who cared to inform Americans about the crucial truth about and vital purposes of our freedom of expression and communication kindly and conscientiously quoted a crucial clarification by the First Continental Congress in 1774. SCOTUS justices did so in majority opinions in Near v. Minnesota, 283 U.S. 697 (1931) and Roth v. United States, 354 U.S. 476 (1957).
On October 26, 1774, the First Continental Congress penned its Letter to the Inhabitants of Quebec and declared “five great rights” of all American citizens. That august assemblage included some of the brightest stars and best lawyers, not only of the American Revolution, but also of the future new government under our Constitution starting in 1789. It included the commander in chief of the Continental Army (George Washington) and our first two presidents, Washington and John Adams, and our first SCOTUS Chief Justice, John Jay (each of whom also was a member of the Second Continental Congress).
One of the “great rights” they declared was “the freedom of the press.” Fortunately, the 1774 Congress did more than merely write that right. They emphasized its meaning and power:
"The importance of this consists," in part, in "the advancement of truth" and the "diffusion of liberal sentiments on the administration of Government," by "ready communication of thoughts between [citizens], and its consequential promotion of union among [citizens], whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs."
SCOTUS also quoted the same language from 1774 in Thornhill v. Alabama, 310 U.S. 88 (1940), but SCOTUS substituted “ashamed” for “shamed.” Thornhill is a profoundly important opinion that is almost unknown to Americans. The Thornhill SCOTUS justices faithfully supported our Constitution with the following crucial elaboration which emphasizes the importance--to the People and to our Constitution--of facilitating timely discussion (not delayed by decades) pertaining to "the exigencies" of our time.
"The freedom of speech and of the press" (the freedom of expression and communication) that the People "guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."
Thank you for the additional quotations and references. One more purely rhetorical quotation (given the owner/publisher’s proclivity to kiss Trump‘s ass): “Democracy dies in darkness”
From the Guardian Feb 3, 2020.
"Political journalists boycotted a Downing Street briefing on Monday after one of Boris Johnson’s aides banned selected reporters from attending.
The confrontation took place inside No 10 after Lee Cain, Johnson’s most senior communications adviser, tried to exclude reporters from the Mirror, the i, HuffPost, PoliticsHome, the Independent and others from an official government briefing.
...
When Cain told the banned journalists to leave, the rest of the journalists decided to walk out collectively rather than allow Downing Street to choose who scrutinises and reports on the government.
Among those who refused the briefing on the UK’s trade negotiations with the EU were the BBC’s Laura Kuenssberg, ITV’s Robert Peston, and political journalists from Sky News, the Daily Mail, the Telegraph, the Sun, the Financial Times and the Guardian."
Not clear if the reporters had to clear this with their HQs first, but apparently not.
Steve, I don't know if you saw that FAUX was so disgusted that they joined MSNBC, Politico, and CNN in solidarity. You know things are messed up when FAUX joins the others in solidarity.
As I mentioned in a reply to Jack Jordan, their action may be self-serving. Fox News correspondent Jacqui Heinrich warned viewers about the possibility of blowback if a Democratic administration takes over. At least they have the foresight to understand why we should support press freedom, unlike their readers (based on the most-liked comment).
The pretextual arguments will surely fail in this case (even Judge Rao likely will find this one hard to swallow) because Trump was so blatant about view point discrimination and threatening other media outlets with the same treatment if they publish stories he doesn't like. The broader question for the Roberts Court is how willing they will be to look behind the pretext, particularly in cases where the pretext is national security. Limiting environmental regulations involving Musk's polluting data centers is an example. Department of Defense uses AI for targeting, Trump's war against Iran continues unabated, therefor it is necessary to allow data centers to pollute on national security grounds.
why would we expect the court to be any more willing to acknowledge the existence of the president's social media posts in this case than it was in trump v hawaii?