Associated Press Has a Strong Case Against White House Press Ban

Is there a First Amendment right to attend White House press briefings? If so, the Associated Press has a strong case against the Trump administration. Today, the AP filed a lawsuit in the U.S. District Court for the District of Columbia, ten days after the White House began restricting the news agency's access to briefings. The lawsuit seeks a temporary restraining order to block enforcement of the ban, which the news organization argues is unconstitutional.

The AP was excluded from the press pool because it declined to adopt the term “Gulf of America” in its editorial coverage after President Donald Trump’s executive order renamed the Gulf of Mexico. The White House says access to the Oval Office is a privilege and defended their decision by claiming the news organization was spreading “lies” and “misinformation.”

Although U.S. government agencies have implemented the name change, AP’s audience extends worldwide, including countries that still recognize the area as the Gulf of Mexico. As a global news agency, AP retains the original term to avoid confusion among its diverse audience, considering the Gulf has carried the name "Gulf of Mexico" for over 400 years.

The First Amendment Right of Access

The First Amendment does not provide a right of free and unconditional access to all government properties or events. See Cornelius v. NAACP Legal Def & Educ, Fund, Inc., 473 U.S. 788, 799-800 (1985). Therefore, while the White House is not required open its doors to the media, hold press conferences, or do a one-on-one interview with CNN just because they did one with Fox News, court decisions have established that once the government grants media access, it must do so in a manner consistent with constitutional protections.

Since denying press access may implicate First Amendment liberties, any decision regarding inclusion or exclusion must also satisfy due process. This necessitates the government to establish clear, impartial criteria and procedures while providing reporters with notice on why they were denied access, along with a fair opportunity to challenge the denial.

Punishing journalists for failing to comply with the President’s editorial standards threatens press freedom and may be tantamount to content - and potentially viewpoint - based discrimination. Courts have long recognized that the government cannot exclude journalists based on their viewpoints. In Biden v. Knight First Amendment Institute (2021), the Second Circuit[i] found that when President Trump blocked journalists from his Twitter account, it was unconstitutional viewpoint discrimination, as his social media account functioned as a public forum. 

This is not the first time press access has been revoked by the White House. In Sherrill v. Knight, journalist, Robert Sherrill was denied a White House press pass by the Secret Service for security reasons, despite holding press passes for the U.S. House of Representative and the U.S. Senate galleries. At the time, the Secret Service had not published its standard for denying press pass applications nor provided procedural protections for unsuccessful applicants.

Sherrill sued the Secret Service, arguing that the denial of his press pass application violated his First Amendment and Due Process rights. The U.S. Court of Appeals for the District of Columbia ruled that the First Amendment limited the right of the White House to arbitrarily deny a press pass to a journalist because the White House had voluntarily opened access to Washington-based journalists.

The Sherrill court emphasized that the public at large has a First Amendment interest in assuring that restrictions on newsgatherings are no more arduous than necessary and that individual reporters are not arbitrarily excluded from sources of information. See Sherrill v. Knight, 569 F.2d 124, 130 (D.C. Cir. 1977) (“White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the First Amendment guarantee of freedom of the press requires that this access not be denied arbitrarily or for less than compelling reasons.”).

Nor is this the first time that Trump has revoked access to a reporter. In 2019, the White House Press Secretary, Stephanie Grisham, suspended press credentials of Brian Karem, a regular CNN contributor and White House correspondent for Playboy, for 30 days. She cited an incident more than a month earlier between Karem and President Trump and said that Karem’s actions did not conform to acceptable standards and that Karem’s behavior violated an unwritten, but “widely-share understanding” regarding “decorum” and “professional[ism].”

Karem filed suit seeking a preliminary injunction to restore his press pass, arguing that the suspension of his credentials based on vague standards violated both his First Amendment and Due Process rights. In a unanimous opinion, a three-judge panel from the U.S. Court of Appeals for the D.C. Circuit held that the decision to suspend Karem’s White House press pass likely violated his Fifth Amendment right to Due Process. The court said Grisham failed to provide clear standards or guidelines defining “unprofessional” behavior that may lead to the revocation of a journalist’s press pass without notice.

Moreover, the court explained that while “the White House surely has a legitimate interest in maintaining a degree of control over media access to the White House complex,” Karem v. Trump, No.19-5255 (D.C. Cir. 2020), “[t]he Constitution… does not permit [it] to prioritize any policy goal over the Due Process Clause, and enforcement of an unconstitutional law is always contrary to the public interest.” (Karem, No.19-5255 (D.C. Cir. 2020)) (quoting Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013).

No Litmus Tests for Press

Courts have recognized that the First Amendment protects the right to receive information.[ii] Lamont v. Postmaster General, 381 U.S. 301 (1965). While the White House is not obligated to admit every journalist into the Oval Office or briefing room, the reason for denial matters. When the government excludes reporters because of their editorial decisions or political views, the Constitution is violated. AP’s exclusion for refusing to adopt the administration’s language may constitute content and viewpoint-based discrimination, which courts subject to the highest level of scrutiny.

Allowing the administration to justify the exclusion of reporters based on its own editorial standards is a dangerous precedent, empowering the government to control political discourse and shape public perception through selective media access. This sends a chilling message to journalists that their White House access hinges on whether they comply with the administration’s desired editorial line. If the White House does not back down, the AP’s claim is likely to be meritorious.

Notes

[i] The Supreme Court vacated the Second Circuit’s judgements and remands the case for dismissal because the change of presidential administration, with Joseph Biden taking office, the case ultimately is rendered moot.

[ii] Stanley v. Georgia, 394 U.S. 557 (1969), affirms the First Amendment right to “receive information and ideas, regardless of their social worth” in a case involving the privacy rights of a man reading whatever material in his own home.