Eugene Volokh says the legality of excluding CNN, MS NOW and Politico depends on viewpoint and White House space
Eugene VolokhThomas M. Siebel Senior Fellow at the Hoover Institution and professor emeritus at UCLA School of Law, in a signed post on the Volokh Conspiracy blog at Reason
In a signed post on the Volokh Conspiracy blog at Reason, law professor Eugene Volokh wrote that, according to the D.C. Circuit, the government may not exclude press outlets based on viewpoint from spaces broadly opened to the press, such as the main White House press briefing room, but may do so from spaces such as Oval Office interviews. He wrote that an exclusion resting on an objective viewpoint-neutral judgment “might be permissible,” while one based in part on disapproval of the three outlets’ perspectives or editorial judgments would likely be seen as viewpoint discrimination.
“But if the exclusion is based in part on disapproval of CNN's, MS NOW's, and Politico's perspectives or editorial judgments as being unfair or unsound, that would likely be seen as viewpoint-discrimination—which, again, is unconstitutional as to the main press briefing room but constitutional as to the Oval Office.”
Analysis
Reporting
Where this statement fits
Should President Trump bar CNN, MS NOW and Politico from the White House over their coverage?
On Friday, September 18, 2026, President Donald Trump posted on Truth Social that, "effective immediately, I am banning" CNN, MS NOW and Politico "from the White House as a result of their constant 'reporting' FAKE NEWS!" About an hour later, in the Oval Office, he said no particular story prompted the decision, that he does not want the outlets "in my office," and that "somebody has a right to keep them away" if outlets write false stories. The three outlets and press-freedom groups oppose the exclusion, citing constitutional protection for the press, and the White House Correspondents' Association said it "stands in defense of our colleagues at CNN, MSNOW, and POLITICO." On Saturday, September 19, MS NOW, CNN and Politico said their White House reporters were refused entry and had press passes confiscated; the White House referred questions to Trump's earlier remarks. The dispute is over whether President Trump should exclude named news organizations from White House access over what they report.
Source and context
Analysis
About this source
Signed blog post by Volokh on the Volokh Conspiracy at Reason (the site's author footer says his posts are his own and not endorsed by any institution). Credited to Eugene Volokh; published and last modified September 18, 2026, 21:30:02 UTC; the page shows '9.18.2026 5:30 PM' (EDT). The post opens 'President Trump posted today:' above a screenshot of Trump's Truth Social post (the screenshot shows 2:04 PM in the viewer's local time, which is 3:04 PM EDT), then block-quotes D.C. Circuit language that the post attributes to Sherrill v. Knight; that block quote is the court's wording, not Volokh's, and is not used. The paragraph before the quoted sentence names the $8.2M Politico-subscription figure as one possible viewpoint-neutral rationale; that figure is outside the quotation and this record takes no position on it. No later Volokh post on the topic appears on the Volokh Conspiracy front page as of about 9:20 AM EDT Sept. 19.
Reporting
About this source
Published September 18, 2026, 19:40 UTC and updated September 19, 2026, 02:12 UTC. Used only for the context sentences (Oval Office questioning, no visible enforcement into Friday evening), not for Volokh's words.
Archived copy (opens in a new tab)Before the quotation
At 3:04 PM EDT on Sept. 18, 2026, Trump posted on Truth Social that, effective immediately, he was banning CNN, MS NOW and Politico from the White House as a result of their coverage, and CNN reported he later took reporters’ questions about it at an Oval Office event. Volokh’s post, published at 5:30 PM EDT, opens with a screenshot of Trump’s post and asks whether the action is constitutional.
After the quotation
CNN reported that, into Friday evening, its reporters remained in their White House workspace and there was no indication the administration had taken steps to follow through on the announcement.
How this statement is classified
The label describes this statement's response within the context above.
Why this label?
Volokh’s words neither approve nor reject the announced exclusion: he writes that its constitutionality depends on the space (unconstitutional as to the main press briefing room, constitutional as to the Oval Office) and on whether it rests on a viewpoint-neutral judgment, which “might be permissible,” or on disapproval of the outlets’ perspectives, and he does not say which basis applies here. The closest competing label is condemns, because he says an exclusion based in part on such disapproval would likely be seen as viewpoint discrimination. That loses because the same sentence calls such an exclusion constitutional as to the Oval Office, so his conclusion turns on an express condition rather than rejecting the act.
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The Dispute Index. "Eugene Volokh says the legality of excluding CNN, MS NOW and Politico depends on viewpoint and White House space". First published: 2026-09-19. Last updated: 2026-09-22. https://disputeindex.com/events/1124-in-a-signed-post-on-the-volokh-conspiracy