On September 18, President Trump announced a ban on CNN, MS NOW, and Politico from the White House. Within a week, federal judge Timothy Kelly replied with an order restoring those news outlets’ access. Unfortunately, this solution was a temporary win and only lasts 14 days while the judge decides on a long-term remedy. The win was further undermined when reporters were still turned away at the gate despite the order. This ban wasn’t the result of unclear rules, because courts had already set them in Sherrill v. Knight and Karem v. Trump, where it was decided that a reporter’s White House pass couldn’t be pulled without due process.
Meanwhile, the White House backed off only after a judge stepped in. These are the problems that can arise when forbearance breaks down, the issue gets sent to court, where the process is slower and needs enforcing. This is a failure of restraint, and the court fight that followed shows why courts alone can’t protect democratic norms.
Levitsky and Ziblatt describe forbearance as the idea that politicians should exercise restraint in deploying their institutional rights (Levitsky and Ziblatt, 106). In other words, just because the president can do something doesn’t mean he should. Forbearance matters because democracy works like a repeated game (Levitsky and Ziblatt, 107). If a president punishes outlets for coverage today, it sets a precedent that the next president can do the same. Presidents hold a lot of power that they can choose whether to use, and Levitsky and Ziblatt argue that modern presidents have mostly used it with restraint (Levitsky and Ziblatt, 127). Press access is a power of this kind. Courts have limited how this power can be used, but the decision to use it against specific outlets because of their coverage is where restraint was supposed to come into play. Now, the White House is defending its actions surrounding the ban by calling access ‘a privilege, not a right’ and mentioning national security concerns and standards of “professionalism and decorum”. However, Judge Kelly found nothing in the record from before the lawsuit suggesting national security was the true motive, and pointed out that President Trump’s own comments on the matter were heavily focused on what the outlets were reporting, including his “FAKE NEWS” announcement. Using a legal power to penalize media outlets is exactly what forbearance is meant to prevent.
This doesn’t only damage the three news outlets, Robert Dahl deemed alternative sources of information as a requirement for democracy, and reporters getting into the White House is part of how citizens find out what their government is doing (Dahl, 3). So, going after outlets for their coverage not only diminishes something the system depends on, but it also fits a warning sign that political scientists identified as politicians who are willing to “curtail the civil liberties of opponents, including the media” (Levitsky and Ziblatt, 22).
As stated previously, this wasn’t a matter of rules being unclear. Judge Kelly found the outlets were likely to win because they were not given due process. Additionally, the White House didn’t argue with the fact that they did not provide the outlets with prior notice or a chance to be heard before their passes were revoked. Despite this order, all three outlets were still turned away, and their lawyers said White House officials had “repeatedly violated” the order. This incident suggests that a rule only works if those it’s meant for follow it without being forced to comply.
The counterargument in this instance would be that the system did work. A federal judge, who was nominated by President Trump, quickly made a ruling, and the outlets were given access back within a day. Yet, this has happened before. In 2018, the same judge ordered that CNN reporter Jim Acosta’s pass be restored after the White House had it confiscated without due process, according to the judge, showing that the requirement to provide the outlets with prior notice or a chance to respond was not news to the White House. The 2018 issue ended once the administration reinstated the pass and CNN dropped its lawsuit, but this only highlights the temporary nature of the situation, because it has happened again but now with three targets. Levitsky and Ziblatt describe how forbearance and mutual toleration tend to reinforce one another, so when one weakens, the other becomes easier to give up on (Levitsky and Ziblatt, 111-112). The jump from one reporter to three outlets fits that pattern. A guardrail that only works after a lawsuit isn’t doing the job forbearance is supposed to do.
Overall, the bigger takeaway from this is that courts can try to fix what was violated after it occurs, but they can’t prevent leaders from doing it in the first place. Judge Kelly’s order is temporary, and the outlets are seeking long-term protection, so whatever is ruled next is important. If the White House complies and doesn’t attempt to restrict access to the media again, this argument will weaken. But if the pattern that began in Trump’s first term is continuing into his second term, it begins to look less like an accident. Either way, a democracy that has to go to court every time a rule is violated is already relying on weak guardrails.
Your topic was very interesting to read. You mentioned that Levitsky and Ziblatt say that mutual toleration and forbearance have to reinforce one another; otherwise things can quickly go downhill. From President Trump’s viewpoint, he sees all 3 media outlets as “fake news,” which can raise some warning flags about how weak these guardrails are starting to look. The President treating the media outlets as “fake news” or as an enemy can seem like a lack of mutual toleration. The Trump administration has repeatedly stated that they strongly disagree with these outlets, and based on how they kicked them out, it seems like they have become vulnerable to the “other side” and are seeing them as existential threats. Since they are seen as existential threats, because the administration viewed the outlets as hostile or illegitimate, it chose to use its institutional power against them.
He has tried to silence the other side for criticizing him and did what he could with the powers he has that are technically legal. However, if these are norms, you would think that politicians would avoid starting a constitutional crisis for the greater good. It is, however, concerning that if it weren’t for the judge, who could only provide a 14-day solution with the temporary access, it can be concerning because it demonstrates that because these are norms you do not necessarily have to follow them. Once you stop following them it’s hard to come back, thus democracy is like a repeated game. It makes me question how far political leaders can go when the judicial system is trying to protect the democratic norms they have tried doing up until now. These delays can harm Americans’ ability to stay informed if these news outlets are not allowed to be present at in press conferences
This article was very enjoyable to read especially as someone who aspires to go into journalism. I think the distinction you make between courts enforcing rules and political actors exercising forbearance is especially important. This raises an important question about the role of courts in the process of trying to eliminate independent media. The attempt to ban journalistic institutions in heavily concerning to contemporary democracy. Supporting the idea of democracy being eroded over time. However, the fact that the courts were able to intervene is significant, as you hiighlighted. It suggests thats institutional checks are still functioning, even if they are being tested. I particularly like your connection to the “repeated game”. Political actors have to consider what they can accomplish currently and also what precedents they create for those who follow. It makes this case significant because if institutional restraints continue to function and there is no immediate legal consequence for abandonment then democracy is especially failing.