The Volokh Conspiracy
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Two D.C. Circuit Judges' Reservations About the Circuit's White House Press Pool / AP / "Gulf of America" Decision
From yesterday's statement by D.C. Circuit Judge Justin Walker, joined by Judge Florence Pan, concurring in the denial of rehearing en banc in AP v. Budowich (see also this June 9 post about the panel opinion):
In this case, "White House officials excluded the AP from the Oval Office and other restricted spaces. Officials announced that access was denied because the AP continued to use the name Gulf of Mexico in its Stylebook, rather than the President's preferred Gulf of America." The district court enjoined the Government from excluding the AP from "the Oval Office, Air Force One, and other limited spaces based on the AP's viewpoint when such spaces are made open to other members of the White House press pool." An emergency panel of this court partially stayed the district court's injunction pending appeal….
There have been many name changes in recent years. The Cleveland Indians were renamed the Cleveland Guardians. George Washington University's Colonials were renamed the Revolutionaries. Fort Bragg was renamed Fort Liberty before it was renamed Fort Bragg again. And on and on.
Whether to embrace these name changes — or even to keep track of them — is at least in part a political choice. So this case about the AP's refusal to say "Gulf of America" is a case about the AP's political speech. And as a general matter, political speech is highly protected speech that the government cannot compel or punish.
In my view, the district court analyzed this case with force and eloquence through the lens of viewpoint discrimination and retaliation. Perhaps the district court would have declined to enjoin the Government if the Government had presented evidence when analogizing an Oval Office media event to a one-on-one interview. And perhaps the case would have come out differently if the AP had made the same concessions in district court that it made here.
But the district court, understandably, decided the case based only on the arguments and evidence presented there. And at least some First Amendment precedents suggest that if the Government "cannot exclude journalists based on viewpoint" from a presidential press conference "in the Brady Briefing Room," then the Government cannot exclude journalists from a presidential press conference in the Oval Office "merely because public officials oppose the [journalists'] view." {Perry Education Association v. Perry Local Educator's Association, 460 U.S. 37, 46 (1983); cf. Associated Press I, 2025 WL 1039572, at *10 ("while the AP does not have a constitutional right to enter the Oval Office, it does have a right to not be excluded because of its viewpoint" (emphasis omitted)); id. at *12 (The district court "takes the Government's point that the Oval Office is no ordinary government space. But given the square directive of [Price v. Garland, 45 F.4th 1059 (D.C. Cir. 2022)] that forum analysis applies to communicative activity, this Court is bound to follow that precedent." (citation omitted)).} For that reason, I have some reservations about the panel's decision.
In any event, the court's standard for en banc review is not met in today's case. Correct or not, the emergency panel's unpublished stay is a nonprecedential order that did not purport to resolve the appeal's merits. And an order's inability to create an enduring intracircuit conflict or to bind future panels to an exceptionally important legal principle strongly counsels against full-court intervention.
Judge Walker also added the following, but only for himself:
Time will tell if today's decision marks a lasting return to this court's high standard for en banc review. But see, e.g., Widakuswara v. Lake, No. 25-5144, 2025 WL 1521355 (D.C. Cir. May 28, 2025) (en banc); Middle East Broadcasting Networks, Inc. v. United States, No. 25-5150, 2025 WL 1378735 (D.C. Cir. May 7, 2025) (en banc).
