The Volokh Conspiracy
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AP Gets Preliminary Injunction Reversing Exclusion from Oval Office Press Pool
I'm on the road and can't discuss this in detail, but I thought I'd pass along a few excerpts from today's decision by Judge Trevor McFadden (D.D.C.) in AP v. Budowich:
About two months ago, President Donald Trump renamed the Gulf of Mexico the Gulf of America. The Associated Press did not follow suit. For that editorial choice, the White House sharply curtailed the AP's access to coveted, tightly controlled media events with the President. The AP now sues the White House chief of staff, her communications deputy, and the press secretary (collectively, "the Government"), seeking a preliminary injunction enjoining the Government from excluding it because of its viewpoint.
Today, the Court grants that relief. But this injunction does not limit the various permissible reasons the Government may have for excluding journalists from limited-access events.
It does not mandate that all eligible journalists, or indeed any journalists at all, be given access to the President or nonpublic government spaces. It does not prohibit government officials from freely choosing which journalists to sit down with for interviews or which ones' questions they answer. And it certainly does not prevent senior officials from publicly expressing their own views.
No, 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….
To be sure, the Government seemingly views these Oval Office events as akin to dialogues, not observational newsgathering. And perhaps there is something to that comparison. After all, intimate events in places like the Oval Office might be framed as more closely resembling sit-down, one-on-one interviews—which are clearly "dialogue"—than broader press briefings. And the AP concedes that the Government may engage in viewpoint discrimination in selecting what reporters can interview senior officials. But the Government neither called witnesses nor presented any evidence to support this analogy.
The Court instead credits the AP's chief White House correspondent's testimony that there is a clear distinction between interviews and the press pool availabilities at issue…. Interviews usually involve a one-on-one or small-group conversation at the invitation of the President. They are "exclusive" and the press has more "control" over the process than it does over journalistic conditions in Oval Office press pool events. The news outlet works with the White House to decide the time and place of interviews. The interview would not happen but for the outlet's presence. Interviews also lack the "sense of competitive pressure that you get from a pool event."
In contrast, Oval Office press pool availabilities involve a gaggle of reporters, all vying for space and information. In "very many" of these "pool sprays," journalists are relegated to watching events unfold from 20–30 yards away and have no interaction with the President or other officials. The event would happen whether any particular outlet had a reporter there or not.
In these conditions, journalists "can't have … a substantive conversation" with officials like they can "in an interview." Instead, the reporters are "just there to witness what is said and what the reaction is, [and] what else is happening in the room." And though journalists in the Oval Office do engage in dialogue, that dialogue is directed to other members of the media and the public to whom they are transmitting news in real time—not to government officials. More, unlike in exclusive interviews, the Government is not dependent on private media organizations to convey its messages to the American people; the White House's media team is present to broadcast events and can do so whether or not other journalists do so….
Read the whole opinion for more.
