Editor’s note: The Trump administration said April 9 it would appeal the federal court decision that ordered it to re-admit Associated Press journalists to White House events on First Amendment grounds.
A federal judge ordered the White House on April 8 to restore The Associated Press’ full access to cover presidential events, affirming on First Amendment grounds that the government cannot punish the news organization for the content of its speech.
U.S. District Judge Trevor N. McFadden, an appointee of President Donald Trump, ruled that the government can’t retaliate against the AP’s decision not to follow the president’s executive order to rename the Gulf of Mexico. The decision, while a preliminary injunction, handed the AP a major victory at a time the White House has been challenging the press on several levels.
“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,” McFadden wrote. “The Constitution requires no less.”
It was unclear whether the White House would move immediately to put McFadden’s ruling into effect. McFadden held off on implementing his order for a week, giving the government time to respond or appeal. Shortly after the ruling, an AP reporter and photographer were turned away from joining a motorcade with the White House press pool to cover Trump’s appearance before the National Republican Congressional Committee.
The AP has been blocked since Feb. 11 from being among the small group of journalists to cover Trump in the Oval Office or aboard Air Force One, with sporadic ability to cover him at events in the East Room.
“We are gratified by the court’s decision,” said AP spokeswoman Lauren Easton. “Today’s ruling affirms the fundamental right of the press and public to speak freely without government retaliation. This is a freedom guaranteed for all Americans in the U.S. Constitution.”
White House press secretary Karoline Leavitt, one of the administration officials named in the lawsuit, did not immediately return a message seeking comment. In its action filed on Feb. 21, the AP sued Leavitt, White House chief of staff Susie Wiles and deputy chief of staff Taylor Budowich.
Many news outlets playing defense with this administration
Trump has moved aggressively against the news media on several fronts since taking office again. The Federal Communications Commission has open lawsuits against ABC, CBS and NBC News. The administration has sought to cut off funding for government-run news services like Voice of America and is threatening public funding for public broadcasters PBS and NPR for allegedly being too liberal in their news coverage.
The AP had asked McFadden to rule that Trump’s officials violated AP’s constitutional right to free speech by taking the action because the president and his staff disagreed with the words that its journalists use. He had earlier refused AP’s request to reverse the changes through an injunction.
Because of its wide reach, the AP has traditionally always been included in “pools” for coverage of presidential events in places like the Oval Office and Air Force One. McFadden cautioned that his ruling does not necessarily herald a return to those days.
“The Court does not order the government to grant the AP permanent access to the Oval Office, the East Room or any other media event,” he wrote. “It does not bestow special treatment upon the AP. Indeed, the AP is not necessarily entitled to the ‘first in line every time’ permanent press pool access it enjoyed under the (White House Correspondents Association). But it cannot be treated worse than its peer wire service either.”
The judge said that his decision does not prohibit a government official from choosing which outlets to give interviews to, or choosing which journalists’ questions they choose to answer at a news conference.
“This is an important decision,” said Katie Fallow, deputy litigation director at the Knight First Amendment Institute at Columbia University. “The First Amendment means the White House can’t ban news outlets from covering the president simply because they don’t parrot his preferred language.”
And Floyd Abrams, a longtime free-speech attorney, cited American history in his reaction: “What a splendid and well-deserved First Amendment triumph. Thomas Jefferson and James Madison would be pleased and relieved.”
Trump came out and said why he made the move
While there was little dispute in a March 27 court hearing about why Trump struck back at the AP – the president said as much – the administration said it was up to its own discretion, and not White House correspondents or longstanding tradition, to determine who gets to question the president and when.
Since the dispute with AP began, the White House has taken steps to control who gets to cover the president at smaller events and even where journalists sit during Leavitt’s briefings, saying both need to better reflect changes in how people get information.
The AP’s decisions on what terminology to use are followed by journalists and other writers around the world through its influential stylebook. The outlet said it would continue to use Gulf of Mexico, as the body of water has been known for hundreds of years, while also noting Trump’s decision to rename it the Gulf of America. Different outlets have used different approaches, some skirting it by calling it the “Gulf.”
“For anyone who thinks The Associated Press’ lawsuit against President Trump’s White House is about the name of a body of water, think bigger,” wrote Julie Pace, the AP’s executive editor, in a Wall Street Journal op-ed. “It’s really about whether the government can control what you say.”
Testimony revealed AP’s coverage has been impeded
Trump has dismissed the AP, which was established in 1846, as a group of “radical left lunatics” and said that “we’re going to keep them out until such time as they agree it’s the Gulf of America.”
For a news organization that relies on speed as a major selling point, the AP brought its chief White House correspondent and photographer to testify March 27 before McFadden about how its absence from covering certain events has delayed its transmission of words and images. Its lawyer, Charles Tobin, said AP has already lost a $150,000 advertising contract from a client concerned about the ban.
The government’s lawyer, Brian Hudak, showed how AP has been able to use livestreams or photos from other agencies to get news out, and pointed out that AP regularly attends Leavitt’s daily briefings.
McFadden said in Tuesday’s ruling in the case, Associated Press v. Budowich et al., that the government has been “brazen” about why it has excluded the AP.
“The government offers no other plausible explanation for its treatment of the AP,” the judge wrote. “The Constitution forbids viewpoint discrimination, even in a nonpublic forum like the Oval Office.”
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