A group of First Amendment experts is pleading with a federal court to reinstate The Associated Press into the select group of journalists who comprise the White House’s “press pool.”
In a Friday brief, Columbia University’s Knight First Amendment Institute argues that the government’s actions necessitate restoring AP journalists’ seats in the halls of power.
“Having created the press pool to enable access to the President in limited-space contexts ranging from the Oval Office to foreign travel, the White House has developed a forum — whether a ‘limited public forum’ or a ‘nonpublic forum,’
as the cases use those terms — from which it may not constitutionally exclude a news organization due to its viewpoints,” the amicus brief, which means friend of the court, states. “Yet that is precisely what the White House is doing, by its own admission.”
The press pool is a nearly 144-year-old institution whose members have long been overseen by the 111-year-old White House Correspondents Association, a nonprofit best known for its annual, eponymous comedy-themed dinner. However, the AP was largely responsible for inventing the pool concept.
On February 11, White House officials informed the Associated Press that text-based reporters would be barred from entering certain areas as members of the press pool “unless the AP began referring to the Gulf of Mexico as the Gulf of America, following President Donald Trump’s renaming of that body of water in Executive Order 14172,” titled “Restoring Names That Honor American Greatness.” Later, the organization claimed that AP photographers were also banned.
On February 21, the Associated Press filed a federal lawsuit in Washington, D.C., accusing the White House of “content- and viewpoint-based discrimination” in violation of the First Amendment. The complaint sought a temporary restraining order and asked the court to overturn the ban. An amended filing added the photographer ban to the complaint and requested a preliminary injunction.
So far, U.S. District Judge Trevor McFadden, a Trump appointee, has refused injunctive relief, arguing that the AP is likely to win on the merits of their case.
“It seems pretty clearly viewpoint discrimination,” McFadden said.
The public forum doctrine of the United States Supreme Court is based on the idea that certain places, whether physical or digital, have been used for First Amendment purposes and should be protected from government interference.
High court jurisprudence distinguishes three types of forums: traditional or quintessential, designated or limited, and closed or nonpublic.
The plaintiffs and amici argue that the White House press pool is a government-created limited public forum.
“The White House’s establishment of the press pool has created a limited public forum, to the benefit of the public as a whole,” according to the amicus brief.
“The pool helps provide a prerequisite for a flourishing democracy: access to an unvarnished view of the words and actions of the nation’s chief executive, intermediated by journalists who can report without fear or favor and attempt to hold the President to account through questioning.”
According to the Knight Center, history can be quite instructive in this context.
“The relationship has endured even during the eras of rockiest relations between the White House and the press during the Watergate investigations, and Independent Counsel Kenneth Starr’s investigation of President Bill Clinton,” the legal brief continues.” “Nor did the White House attempt to interfere with the pool during President Trump’s first term.”
Furthermore, the argument goes that viewpoint discrimination cannot justify the exclusion of anyone from such a public forum.
The Trump administration, for its part, has clearly singled out the Associated Press for its editorial perspective, the lawsuit, and the amici claim.
From the amicus brief, in length:
The White House’s decision to ban the AP from the press pool based on the AP’s editorial decisions thus impermissibly excludes the AP from a limited public forum based on the viewpoint of the AP’s speech. The White House does not deny that it acted based on viewpoint. President Trump said “[w]e’re going to keep them out until such time that they agree that it’s the Gulf of America,” while saying in the same breath that the AP “has been very, very wrong on the election, on Trump and the treatment of Trump.” Similarly, Defendant Chief of Staff Susie Wiles wrote to the AP that the White House’s “view as to why we arrived in this point” is that “the influence” the AP’s “Stylebook has acquired has been misused, and at times weaponized, to push a divisive and partisan agenda.” And Defendant Deputy Chief of Staff Taylor Budowich said “[t]his isn’t just about the Gulf of America. This is about AP weaponizing language through their stylebook to push a partisan worldview in contrast with the traditional and deeply held beliefs of many Americans and many people around the world.”
The First Amendment experts make several public policy arguments in support of their request for an injunction. These are not strictly constitutional pleas, but courts frequently consider them when applying the various balancing tests and frameworks used to grant or justify requests for relief.
To that end, the Knight Center compares the AP’s ban to how journalists are treated in Russia’s press pool.
“[I]f a press organization can be kicked out of the press pool because of its viewpoints … the remaining members of the press pool would have a strong incentive to soften their coverage of the White House,” according to the brief.
“If the White House can remove one outlet from the press pool due to its coverage, it can dangle a sword over those who remain. Those who have lived under authoritarian regimes will recognize this phenomenon.
