Trump Can Resume Restricting AP’s Access To Oval Office And Other Spaces, Appeals Court Rules

A federal appeals court ruled that Donald Trump‘s White House can resume restricting access to the Associated Press to the Oval Office, Air Force One and Mar-A-Lago.

“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 judges, Neomi Rao and Gregory Katsas, wrote in their ruling. “The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted.”

In their decision, the judges granted a stay to part of a lower court judge’s order that the White House must allow AP access. The judges, though, made an exception for events in the East Room, meaning that the Trump administration must allow the AP access to events there, where all pre-credentialed media is typically invited.

In February, the White House banned the Associated Press from pooled events in the Oval Office and elsewhere, punishing the outlet because it declined to shift its style guidance from identifying the Gulf of Mexico to the Gulf of America.

The AP sued on First Amendment grounds. In April, U.S. District Judge Trevor McFadden ruled that the Trump administration could not allow some journalists access to spaces like the Oval Office but deny the AP based on its content. McFadden wrote, “The Court simply holds that under the First Amendment, if the Government opens its doors to some journalists — be it to the Oval Office, the East Room, or elsewhere — it cannot then shut those doors to other journalists because of their viewpoints. The Constitution requires no less.”

The White House has since allowed the AP into events. But instead of being a regular part of the White House pool, the news organization is part of a rotation of print journalists, while its photographers have been allowed on a more consistent basis as part of the photo pool.

In a dissent to the appeals panel decision, Judge Cornelia Pillard wrote that “the issue here is whether, when the White House authorizes the press pool to travel with the president or observe an Oval Office meeting or signing, the White House may exclude journalists or news organizations based on their expression outside the pool of views the president disfavors. Neither this court nor the Supreme Court has ever upheld the exclusion from a forum or denial of a benefit based on a private recipient’s viewpoint outside the forum or benefit program. Because the district court correctly enjoined just such an exclusion here, I see no basis for a stay pending appeal.”