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First Amendment experts ask judge to side with AP over Trump

homesafetytechpros — Sun, 09 Mar 2025 08:05:07 +0000

President Donald Trump, from right, speaks to reporters accompanied by Interior Secretary Doug Burgum and Burgum’s wife Kathryn Burgum, aboard Air Force One where Trump signed a proclamation declaring Feb. 9 Gulf of America Day, as he travels from West Palm Beach, Fla. to New Orleans, Sunday, Feb. 9, 2025 (AP Photo/Ben Curtis).

A group of First Amendment experts is imploring a federal court to order The Associated Press back into the select stable of journalists who make up the White House “press pool.”

In a Friday brief, the Knight First Amendment Institute at Columbia University says the government’s behavior necessitates giving AP journalists back their 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, or friend of the court, brief reads. “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, for decades, been under the purview of the 111-year-old White House Correspondents Association, a nonprofit famously responsible for its annual, eponymous, comedy-themed dinner. The concept of the pool itself, however, was essentially invented by the AP.

On Feb. 11, White House officials informed the AP its text-based reporters would be barred from entering certain areas as a member 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,” which was titled, “Restoring Names That Honor American Greatness.” Later, AP photographers were allegedly banned as well, the organization said.

On Feb. 21, the AP filed a lawsuit in D.C. federal court accusing the White House of engaging in “content- and viewpoint-based discrimination” in violation of the First Amendment. The complaint requested a temporary restraining order and asked the court to reverse the ban. An amended filing added the photographer ban to the complaint and pushed for a preliminary injunction.

So far, U.S. District Judge Trevor McFadden, a Trump appointee, has refused injunctive relief — while at the same time arguing the AP is likely to win on the merits of their case.

“It seems pretty clearly viewpoint discrimination,” McFadden said.

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The U.S. Supreme Court’s public forum doctrine centers around the notion that certain places — either physical or digital — have, by tradition or practice, been used for First Amendment purposes and should remain free of government interference. Under high court jurisprudence, there are three types of forums: traditional or quintessential, designated or limited, and closed or nonpublic.

To hear the plaintiffs and the amici tell it, the White House press pool is a limited public forum created by the government.

“The White House’s establishment of the press pool has created a limited public forum, to the benefit of the public as a whole,” the amicus brief argues. “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.”

Here, the Knight Center says, history is, in fact, quite instructive.

“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 brief goes on. “Nor did the White House attempt to interfere with the pool during President Trump’s first term.”

And, the argument goes, viewpoint-based discrimination cannot justify the exclusion of anyone from such a public forum.

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The Trump administration, for its part, clearly singled out the AP for their editorial perspective, the lawsuit and amici claim.

From the amicus brief, at 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.”

In pushing for an injunction, the First Amendment experts make several public policy arguments. These are not strictly constitutional pleas but are often considered by courts when considering the various balancing tests and frameworks used to grant or justify requests for relief.

To that end, the Knight Center all but likens the ban on the AP to how journalists are treated in the Russian Federation’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,” the brief continues. “If the White House can evict one outlet from the press pool due to its due to its coverage, it can dangle a sword over those that remain. This phenomenon is familiar to those who have lived under authoritarian regimes.”

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Amicus brief portends huge change to White House press pool

homesafetytechpros — Wed, 26 Feb 2025 13:13:39 +0000

FILE — President Donald Trump throws pens used to sign executive orders to the crowd during an indoor Presidential Inauguration parade event in Washington, Monday, Jan. 20, 2025 (AP Photo/Matt Rourke, File).

The Trump administration on Tuesday announced a sea change in how media will be allowed to cover the presidency. That change was foreshadowed in a recent court filing — as part of a parade of horribles.

Standing behind a lectern and flanked by flags and screens in the James S. Brady Press Briefing Room, White House Press Secretary Karoline Leavitt said the government itself would henceforth select the journalists who make up the White House “press pool.”

The press pool is a nearly 144-year-old institution whose members have, for decades, been under the purview of the 111-year-old White House Correspondents Association, a nonprofit that is famously responsible for their annual, eponymous, comedy-themed dinner.

“As you all know, a group of D.C.-based journalists, the White House Correspondents Association, has long dictated which journalists get to ask questions of the President of the United States in these intimate spaces,” Leavitt intoned. “Not anymore. I am proud to announce that we are giving the power back to the people who read your papers, who watch your television shows, and who listen to your radio stations. Moving forward, the White House press pool, will be determined by the White House Press Team.”

Reaction from the WHCA, other members of the media, and First Amendment experts was swift and all-but uniformly negative.

“This move tears at the independence of a free press in the United States,” WHCA President Eugene Daniels said in a statement. “It suggests the government will choose the journalists who cover the president. In a free country, leaders must not be able to choose their own press corps.”

A White House adviser reportedly gloated, albeit anonymously, in comments to Axios — and attributed the press pool shift directly to a recent dispute with The Associated Press over certain terminology.

“The AP and the White House Correspondents Association wanted to f––– around,” the adviser told Axios. “Now it’s finding out time.”

Alex Morey, a First Amendment attorney who works for the Foundation for Individual Rights and Expression, criticized this perspective in a post on X (formerly Twitter).

“[A] media outlet holding firm to its editorial standards in the face of explicit pressure to instead act as the government’s mouthpiece is, if I’m remembering my J-school lessons accurately, the exact opposite of f–––ing around,” she said.

Leavitt clarified that “legacy outlets” who have been part of the pool in the past “will still be allowed to join,” suggesting one upshot of the new policy is other “well-deserving outlets” will be granted access.

“New voices are going to be welcomed in,” Leavitt said, explaining that major broadcast news networks will take part, on a rotating basis, with “streaming services which reach different audiences.”

The makeup of the pool will, going forward, be made by White House officials — and will likely change on a daily basis.

Still, the move will likely serve as a stark and powerful example of how some Trump administration decision-making appears calibrated specifically to deter and enrage its opponents.

The shift in how the press pool will be chosen comes amid an ongoing legal battle in the federal court system over the Associated Press’ access to the institution it essentially founded.

On Feb. 11, White House officials informed the AP its reporters would be barred from entering certain areas as a member of the press pool “unless the AP began referring to the Gulf of Mexico as the Gulf of America, following President Trump’s renaming of that body of water in Executive Order 14172,” which was titled, “Restoring Names That Honor American Greatness.”

On Feb. 21, the WHCA filed an 18-page lawsuit in D.C. federal court accusing the White House of engaging in “content- and viewpoint-based discrimination” in violation of the First and Fifth Amendments. The complaint, and an accompanying motion, requested a temporary restraining order — asking for the court to reverse the ban.

On Monday, U.S. District Judge Trevor McFadden, a Trump appointee, declined to grant what he termed the “extraordinary relief” of a temporary restraining order due to the timing of the lawsuit and because the AP can still access pool reports prepared by other journalists.

At the same time, the judge mused that precedent was wholly on the plaintiffs’ side when, and if, the case comes down to the merits. To hear the judge tell it, the ban on the AP was clearly unconstitutional.

“It seems pretty clearly viewpoint discrimination,” McFadden said.

A 21-page amicus brief filed on Monday by the Reporters Committee for Freedom of the Press staked out the exact same position.

“Here, the AP’s exclusion is not just arbitrary and unjustified but viewpoint-based, an ‘especially invidious’ form of discrimination often described as ‘poison’ to the free flow of information,” the brief argues. “To tolerate it in this case would undermine the central meaning of the First Amendment and the central purpose of the White House pool — to ensure that the public ‘never come[s] to depend on a president’s aides alone’ to understand the nation’s highest office.”

The filing elaborates on how the First Amendment likely applies in the case of the AP being singled out and ejected from what is, in terms of constitutional caselaw, considered a “public forum.”

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“Having implemented the pool system, then, the White House may not, consistent with the First Amendment, bar access to pool members on grounds that are repugnant to the principle of viewpoint neutrality,” the brief goes on. “And here the White House makes no secret of its motivation. It excluded the AP because it is targeting the substance of the AP’s reporting, which it perceives as ‘partisan.””

The brief also makes a public policy argument — premised on the idea that the press pool’s membership is self-regulated.

Again the friend of court filing, at length:

As a matter of longstanding policy, “[t]he White House does not pick the members of the press pool that goes in to the Oval Office” and other limited-access spaces; instead, to preserve the pool’s function as an independent chronicler of the presidency, “[t]he pool makeup is decided by the members of the press corps themselves.” And that independence is jealously guarded …

That longstanding policy, of course, is precisely what the White House put out to pasture the very next day.

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