No First Amendment Violation in Excluding Associated Press from “the Room Where It Happens”
In Friday’s AP v. Budowich, the D.C. Circuit stayed the preliminary injunction that required the White House to let the AP back into White House, Air Force One, and Mar-a-Lago briefings. Judge Neomi Rao, joined by Judge Greg Katsas, wrote a statement explaining the ruling; here’s a short excerpt from the 27-page opinion.
The Associated Press wants to be in the room where it happens. But in February 2025, White House officials excluded the AP from the Oval Office and other restricted spaces. Officials announced that access was denied because the AP continued to use the name Gulf of Mexico in its Stylebook, rather than the President’s preferred Gulf of America. The AP sued, alleging that its exclusion violated the First Amendment. The district court held the AP was likely to succeed on its constitutional claims, and it issued a preliminary injunction prohibiting White House officials from denying, on the basis of viewpoint, access to press events held in the Oval Office, on Air Force One, and at the President’s home in Mar-a-Lago.
We grant in part the government’s motion for a stay pending appeal. The White House is likely to succeed on the merits because these restricted presidential spaces are not First Amendment fora opened for private speech and discussion. The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted. Moreover, without a stay, the government will suffer irreparable harm because the injunction impinges on the President’s independence and control over his private workspaces….
Reporters and photographers have long been permitted access to the White House complex to cover the President and his administration. 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.
Hard pass holders may also sign up via a reservation system to attend larger events hosted in the East Room, which is often used for meetings with foreign leaders, executive order signings, and press conferences. Because the White House has opened these press facilities “to all bona fide Washington-based journalists,” hard passes may not be denied arbitrarily or based on the content of a journalist’s speech. Sherrill v. Knight (D.C. Cir. 1977).
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. Since its inception, the press pool has had a relatively stable, although not fixed, membership. Journalists selected to be part of the press pool may travel with the President aboard Air Force One and attend small press events at the President’s home in Mar-a-Lago, usually to observe presidential speeches and events. For many years, the Correspondents’ Association offered the AP a standing invitation to send one reporter and one photographer to press pool events.
On February 11, 2025, White House Press Secretary Karoline Leavitt informed the AP that it would not be permitted in the Oval Office or press pool unless it revised its Stylebook to refer to the Gulf of America, which President Trump had recently renamed from the Gulf of Mexico. The President and other senior White House officials publicly stated that the reason for the AP’s exclusion was its continued use of the name Gulf of Mexico. The AP was similarly excluded from events in the East Room, despite signing up in advance through the reservation process. On February 25, the White House announced it would select journalists for participation in press pool events, instead of deferring to the selection made by the Correspondents’ Association….
The district court held the Oval Office, Air Force One, and similar restricted spaces are nonpublic fora when members of the press pool are present, and therefore the AP’s exclusion on the basis of viewpoint violates the First Amendment. We conclude the spaces to which the AP seeks access are not any type of forum. As such, the White House may consider journalists’ viewpoints when deciding whether to grant access….
“A nonpublic forum is government property that is not by tradition or designation a forum for public communication.” The government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Government property does not become a nonpublic forum unless and until the government takes some affirmative step to open the space for private communication. While the government need not open up property “that is not by tradition or designation a forum for public communication,” the government “creates a nonpublic forum when it provides selective access for individual speakers.” Until the gov
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