
A divided federal appeals court ruled on Friday that President Donald Trump is free to ban Associated Press (AP) reporters and photographers from official White House events.
The decision reverses a lower court’s initial injunction that restored the AP’s access to official White House events and its participation in the White House press pool. The lawsuit filed by the AP against the White House, Trump and certain officials continues.
The appeals court decision was 2-1 in favor of Trump. Both judges who sided with the Trump administration — Neomi Rao and Gregory Katsas — were appointed by Trump himself. The dissenting judge was Cornelia Pillard, appointed by former President Barack Obama in 2013.
In the majority opinion, Rao wrote that the injunction approved by the lower court created “irreparable harm” because it “impinges on the President’s independence and control over his private workspaces.”
The judges affirmed that the White House generally offers credentials to more than 1,000 journalists who are based in Washington, D.C., and that a small group of those reporters and photographers — around one percent of the total White House press pool — were invited to more-restricted events with the president.
But the invitation to join the president in the Oval Office and in the traveling press pool is not an absolute right, the Rao and Katsas said. In fact, the White House revoked the AP’s permission to attend the more-restrictive events because it failed to describe a body of water in the Atlantic Ocean as the “Gulf of America.” Before Trump took office, it was more commonly known as the “Gulf of Mexico.”
A lower court approved the temporary injunction, saying the AP was likely to succeed on First Amendment grounds. Rao affirmed the AP’s First Amendment rights, but said it rejected the view that the Oval Office, Air Force One and other restricted parts of the White House were “public forums,” and that the White House was within its right to restrict access, even if that restriction is rooted in a political viewpoint.
“We conclude the spaces to which the AP seeks access are not any type of forum,” Rao wrote. “As such, the White House may consider journalists’ viewpoints when deciding whether to grant access.”
Rao said the Oval Office and Mar-a-Lago, Trump’s Florida home, are not public forums similar to parks and sidewalks — areas that are enjoyed by all, and where First Amendment expressions may not be restricted.
“No one suggests the Oval Office is a traditional public forum such as a park or sidewalk held in trust for expressive activity. Nor is the Oval Office a designated public forum that the government has made generally available to the public for discourse and communication,” Rao said. “The disagreement between the parties is whether the spaces at issue are nonpublic [forums] or not [forums] at all, and so we focus on this distinction.”
The AP — which has increased its editorializing of Trump and current and former members of his administration in recent news stories — said it was disappointed in the decision.
Karoline Leavitt, the White House Press Secretary, said on Friday that the AP was “not guaranteed special access to cover President Trump in the Oval Office, aboard Air Force One, and in other sensitive locations.”
Leavitt said the White House would continue to “expand access to new media,” which has included independent and startup journalists and outlets like One America News, The Epoch Times, Tim Pool, Dr. Phil’s Merit TV, Zero Hedge, NewsNation and Newsmax in recent weeks.