May Officials Exclude Journalists from Press Events Based on Disapproval of Journalists' Speech?

It's complicated.

"The White House says it will limit Associated Press journalists' access to the Oval Office and Air Force One," because the AP refuses to go along with the White House's insistence that the Gulf of Mexico be called "the Gulf of America." Back in 2009, the Obama Administration tried to exclude Fox News from a press pool interview with an Administration official. Does that violate the First Amendment? A few thoughts:

[1.] The Administration has no First Amendment obligation to provide any press conferences or interviews. The question, though, is whether, once it starts doing that, it may exclude the press based on its viewpoint, or on its supposedly unfair coverage, or on its use of terms that are seen as expressing a viewpoint.

[2.] It seems pretty clear that government officials can choose—including in viewpoint-based ways—whom they will sit down with for interviews. The President may choose to give interviews to journalists whose views he likes, and to refuse to speak with those whose views he dislikes. Indeed, a government official may even order employees not to talk to certain reporters, without thereby violating the reporters' rights. Baltimore Sun v. Ehrlich (4th Cir. 2006). (That decision didn't discuss whether such an order may violate the employees' rights, but that's not really at issue in the current controversy.)

Even precedents which have recognized some journalist rights to access press conferences have made this clear. "Nor is the discretion of the President to grant interviews or briefings with selected journalists challenged. It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all." Sherrill v. Knight (D.C. Cir. 1977).

[3.] It also seems pretty clear that government officials, even in large press conferences, can choose to ignore questions that express views they dislike, or to ignore questioners who have expressed those views. TGP Communications, Inc. v. Sellers (9th Cir. 2022) recognized this in stressing that "Permitting Conradson to attend press briefings pending resolution on the merits" (something the court did order) "would not prejudice Appellees because no one would be obliged to speak with him." And that's just a special case of the broader proposition, recognized in Minn. State Bd. for Comm. Colleges v. Knight (1984), that

Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues.

[4.] This having been said, there are precedents (Sherrill, TGP, and John K. Maciver Inst. for Public Policy v. Evers (7th Cir. 2021)) that recognize a right not to be excluded based on viewpoint from large press conferences that are generally open to a wide range of reporters. Those precedents treat those press conferences more or less like "limited public fora" or "nonpublic fora"—government property where the government may impose viewpoint-neutral restrictions but not viewpoint-based ones. Under those precedents, reporters may not be excluded from being at the press conference based on their or their organizations' viewpoints, though again the government has no obligation to answer their questions.

[5.] But what about in-between events, which are open only to a small set of reporters? Air Force One apparently has 13 press seats, and I take it the Oval Office is likewise limited.

John K. Maciver Inst. seems to suggest that even for such events, reporters can't be selected in viewpoint-based ways: The appeals court there treated even a gathering with select reporters—"an invitation-only, limited-access press event"—as a nonpublic forum, where viewpoint discrimination is forbidden. And this was so even as to the governor's press briefings, "which are limited to an even smaller group of invited members of the press" than the already "limited-access press conferences and other press-exclusive events to which only some members of the press are invited." ("Because this was a small-scale event, hundreds of other journalists and media personnel were also not invited to attend.")

I'm not sure this is right: I would think that when "only some members of the press are invited" the government official should be able to pick and choose those with whom he wants to have a conversation. They seem closer to one-on-one interviews—where, recall, the official can pick and choose whom to talk to based on their viewpoints—than to large press conferences where most of the reporters in any event just watch and listen, and don't get their questions answered. And it's hard to know exactly where John K. Maciver Inst. would have drawn the line; I checked the briefs in the case and couldn't figure out how large the press briefings there were, and the court didn't have to discuss the issue in detail because it concluded that the governor's criteria were in any event viewpoint-neutral.

[6.] So I think that for Air Force One and Oval Office appearances, the best I can say is that the First Amendment analysis is unsettled (especially since all the cases I cite above, except Minn. State Bd. of Comm. Colleges v. Knight, are just federal appellate cases, not Supreme Court cases; I've also deliberately focused on the more influential federal appellate decisions, rather than the less influential federal trial court decisions). But that's just my tentative analysis; I'd love to hear what others think.

Note that, as a policy matter, I think the exclusion of the AP is unsound. That's partly because I think their position on the Gulf question is at least defensible and likely correct. But I also think that even if the AP were clearly mistaken on it, that would be a pretty poor justification for excluding an important news organization whose work has many millions of American readers. In the paragraphs above, though, I'm focusing solely on the constitutional question.

For a more definite view than mine, see FIRE's recent statement on the controversy.