Associated Press loses first round of White House access lawsuit

As news outlets rally to the Associated Press’ defense after the Trump administration removed it from the White House press pool, legal experts differ on whether the decision infringes on the freedom of the press.

A federal judge last week denied an emergency motion from the Associated Press seeking to restore its access to presidential events. The AP contends that the Trump administration violated the publication’s free speech rights by shutting its reporters out of several parts of the White House.

The White House said it would not allow the AP reporters back in unless they refer to the Gulf of Mexico as the Gulf of America, per President Donald Trump’s January executive order. “We’re going to keep them out until such time as they agree that it’s the Gulf of America,” Trump said.

U.S. District Judge Trevor McFadden declined to issue an order blocking the White House’s action, saying that the government had not caused the AP to suffer irreparable harm.

The AP initially filed a lawsuit against the Trump administration on Feb. 21, 10 days after the White House began restricting the publication’s access to certain areas in the president’s house.

While still allowing the AP on White House grounds, the Trump administration kicked the outlet out of a 13-person pool of journalists that covers events in smaller spaces, such as the Oval Office or Air Force One. Typically, the White House Correspondents’ Association selects the reporters that are in this pool.

White House chief of staff Susan Wiles added that the White House has restricted the AP’s access because of its influence through its stylebook.

“Of course [we] recognize that this renaming may not formally apply yet internationally,” Wiles reportedly emailed the AP, but “given the AP’s role, it should also appropriately make the distinction as an American guideline.”

The AP asserts that as “a global news agency that disseminates news around the world, the AP must ensure that place names and geography are easily recognizable to all audiences,” according to the complaint. The outlet noted that it follows Trump’s order to change Alaska’s Mount Denali back to Mount McKinley, as the mountain lies within the country Trump oversees.

Access to the pool is critical for the organization to maintain “timely and thorough reporting,” the complaint states, adding that the AP has been part of the pool since the White House Correspondents’ Association began more than a century ago.

The AP contends that the White House can’t remove the publication over its editorial decisions because the First Amendment requires that “access not be denied arbitrarily or for less than compelling reasons.”

“The press and all people in the United States have the right to choose their own words and not be retaliated against by the government,” the AP wrote in its lawsuit. “Allowing such government control and retaliation to stand is a threat to every American’s freedom.”

More than 50 news organizations have signed letters of support for the AP sent by the White House Correspondents’ Association and the Reporters Committee for Freedom of the Press. Newsmax said in a statement that, while “the media has often been unfair to [Trump,]” the organization backs AP, citing concerns about what precedent the White House decision sets. “We fear a future administration may not like something Newsmax writes and seek to ban us,” the statement said.

But the White House argues the case is not a First Amendment issue. Special media access to the president is “a quintessentially discretionary presidential choice that infringes no constitutional right,” it stated in a brief filed in opposition to the AP’s motion.

“The First Amendment does not compel him to give a personal audience to any particular journalist,” the administration argued. “The president’s discretion over these small spaces simply does not implicate constitutional rights—for citizens, journalists, or news organizations alike.”

While Judge McFadden denied AP’s request for emergency access, he urged the White House to reconsider its ban, stating that it “is uniformly unhelpful to the White House.”

McFadden said the issue required more exploration before ruling, noting that the court has expedited the AP’s lawsuit and set a hearing for a preliminary injunction on March 20.

Following the ruling, the White House displayed a pair of monitors in a briefing room reading “Gulf of America” and “victory,” and stated that the administration aims to “hold the Fake News accountable for their lies.”

McFadden could approach ruling in this case in one of two ways, said Brad Jacob, a constitutional law expert at Regent University School of Law. The judge could determine that the president, with limited time, can only be so available to the media, so he can choose who has access, Jacob said. Or, the judge could find the president’s removal of the AP was viewpoint discrimination and violated free speech rights.

“I tend to think that the court is going to say, because the number of seats at the table is limited, the White House is going to have to make choices,” Jacob said. “There may just be a whole lot of factors that go into who they want to let into the room and it’s not for the court to second-guess that judgment.”

Foundation for Individual Rights and Expression Director of Public Advocacy Aaron Terr agreed that it’s unlawful for the White House to decide what media outlets have access to the president based on their viewpoints.

But the issue became more complicated the day after McFadden’s ruling, when the White House announced that it’s taking control of selecting the pool.

“Legacy outlets who have participated in the press pool for decades will still be allowed to join—fear not,” Press Secretary Karoline Leavitt said. “We will also be offering the privilege to well-deserving outlets who have never been allowed to share in this awesome responsibility.”

Following this, the administration almost removed Reuters and HuffPost reporters from the pool.

“I think it’s fair to question whether the administration is really seeking to expand access for diversity of outlets or only for outlets whose coverage flatters the president,” Terr said. “The role of our free press is not to act as a government mouthpiece. It’s to scrutinize power and hold it accountable.”

Past administrations have excluded certain news organizations from presidential access before, Terr added. In 2009, the Obama administration refused an interview to Fox News despite giving one to a handful of its competitors.

Terr said he hopes the court will use the AP’s case to reinforce that the government can’t engage in viewpoint discrimination against journalists.

“The White House’s actions here set a dangerous precedent that could also be exploited by future administrations to control and manipulate the flow of information to the public,” Terr said. “It shouldn’t be a partisan issue. It’s really about preserving fundamental rights and limiting government power over information.”