AP Wins WH Press Pool Lawsuit In District Court

Last month I detailed the Associated Press White House Press Pool lawsuit. The AP was illegally barred from the WH Press Pool because they would not capitulate to using the language “Gulf of America.” Today a federal district court agreed the government’s action violated the First Amendment of the US Constitution and the AP must be reinstated.

Why does this case matter? The Press Pool is essential for keeping the public informed on the Executive Branch. Just last week President Trump chastised a pool reporter on Air Force One for asking a question on the scope of his tariff policy firing back “that is such a stupid question.” Just seconds later he would explain the extraordinary market volatility was a strong medicine the US allegedly needed to transform its respective economy. Trump’s action and words have outsized impacts on the market and losing an honest access point to this important stream of information is unconscionable. Compare this question-answer play to a few weeks ago when a member of the media asked a question (maybe closer to a statement) that praised the President’s apparent successes in fighting international criminal gangs. Trump spent 30 seconds praising the reporter. The WH wants to insulate itself from scrutiny and there is clear evidence of this. Today is a good day for democracy and a free press.

Let’s take a closer look at Judge McFadden’s arguments (appointed by Trump for everyone at home.) After setting out the more than a dozen instances of where the AP was blocked access due to the Gulf of America justification he begins to analyze the history of press coverage and the First Amendment:

“In 1789, Representative Aedanus Burke believed newspapermen reporting from the floor of the House chamber “misrepresented the[] debates in the most glaring deviations from the truth, often distorting the arguments of the members from the true meaning.” 1 Annals of Cong. 917 (1789).4 So he introduced a resolution to censure them. Burke’s resolution would bar newspapers from reporting on House debates altogether or, at the least, remove reporters from the House floor and relegate them to the public gallery. Id. at 952, 954. But it was Burke who would be rebuked. Congressmen lined up to condemn his proposal. James Madison stressed that it was “improper to throw impediments in the way” of the reporting “as the House had hitherto permitted from the purest motives.” Id. at 919–20. Representative Thomas Hartley proclaimed that Burke’s resolution was “an attack upon the liberty of the press.” Id. at 919. Other members agreed. See id. at 918. Burke ultimately withdrew the resolution. Id. In the aftermath, the House settled on a practice of reserving space for reporters on the House floor but permitting the reporters to allocate the slots among themselves. See Elizabeth Gregory McPherson, Reporting the Debates of Congress, 28 Quarterly J. Speech 141, 142 (1942); Congressional Rsch. Serv., Congressional News Media and the House and Senate Press Galleries, at 1 (Apr. 13, 2017). The Senate took a similar approach, and it soundly rejected an effort by a senator several decades later to exclude reporters from the upper house chamber. See Second Brief for the Knight First Amendment Institute at Columbia University as Amicus Curiae in Support of Plaintiff, ECF No. 41-1, at 20–22. To be sure, as anyone familiar with the Sedition Act knows, the Founding Fathers did not always live up to the promise of the First Amendment…. These immediate and forceful backlashes to attacks on the press underscore how Americans understood the First Amendment in the early centuries. They saw this foremost protection as safeguarding their natural right to heap honest criticism upon the Government without fear of official reprisal. See Campbell, 127 Yale L. J. at 280 (“[B]y the late eighteenth century, Americans widely embraced the idea that the government could not prohibit wellintentioned statements of one’s thoughts.”); see also The People v. Croswell, 3 Johns.Cas. 337, 352 (Sup. Ct. of N.Y. Feb. 13, 1804) (“The liberty of the press consist[s] in publishing with impunity, truth with good motives, and for justifiable ends, whether it related to men or to measures.”) p14-16

What is clear is that as Judge McFadden is a purported Originalist, looking to the original meaning of the laws and words as they were understood at the time, he wants to ground the argument from the Founding. Clearly the writers of the Constitution even close to 250 years ago acknowledged removing Congressional press due to coverage they deemed unfavorable was viewpoint discrimination and unlawful.

McFadden then proceeds to establish a point that virtually everyone had agreed upon. The First Amendment does not guarantee that the WH has to give access but when it does provide access it cannot do so selectively based on viewpoints it agrees or disagrees with.

“At the heart of this case lies one press pool site in particular: the Oval Office. It scarcely need be said that the Oval Office is a highly controlled location. It is shrouded behind a labyrinth of security protocols, and few members of the public will ever approach the Resolute Desk. Thus, the AP has no standalone right of access to the Oval Office. Houchins v. KQED, Inc., 438 U.S. 1, 10 (finding no “constitutional right of access to news sources” or restricted locations). The Government could exclude all journalists from the Oval Office without offending the First Amendment. On this, the parties agree. Compare Gov’t Opp’n Br. at 18 (stating there is no “First Amendment right . . . [to] access[] the White House) with Pl. Reply Br. at 16 (“The AP does not claim otherwise.”). But the Government has chosen to open the Oval Office to reporters in limited circumstances. That is, it has opened government property for “selective access” to a “particular class of speakers” whose members must “obtain permission” to be there in the first place. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 679 (1998); see also Perry, 460 U.S. at 47 (nonpublic forum created in school mailbox system where it was not “open for use by the general public” and “[p]ermission to use the system” had to be “secured from the . . . principal.”). Thus the Oval Office is properly classified as a nonpublic forum, at least when the Government has voluntarily opened it and journalists are present. Accord Evers, 994 F.3d at 610 (holding that a “limited-access press conference” hosted by a state governor was a nonpublic forum).5 This means official authority to restrict expression in the Oval Office is at its zenith. But still, there is a limit: Access restrictions must be reasonable and not viewpoint based. Cornelius, 473 U.S. at 806; see also Forbes, 523 U.S. at 682 (stressing that “the exclusion of a speaker from a nonpublic forum must not be based on the speaker’s viewpoint and must otherwise be reasonable in light of the purpose of the property”). So 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. And the AP says that is exactly what is happening. See Mot. Preliminary Inj., ECF No. 27-1, at 45. The Court agrees. Indeed, the Government has been brazen about this. Several highranking officials have repeatedly said that they are restricting the AP’s access precisely because of the organization’s viewpoint. See supra Section I.A. Government counsel admitted that the AP was not being chosen for access, despite its “eligibility,” because of its viewpoint. Hr’g Tr. at 190:17–24 (“I think the record is clear. . . . [T]hey are not being selected for Oval Office access because they refuse to adhere to what the President believes is the law of the United States . . . that the body of water is called the Gulf of America.”). The Government offers no other plausible explanation for its treatment of the AP. The Constitution forbids viewpoint discrimination, even in a nonpublic forum like the Oval Office.” pg 20-21

McFadden then turns to explain the consequences of this chilling effect.

“The analysis is straightforward. The AP made an editorial decision to continue using “Gulf of Mexico” in its Stylebook. The Government responded publicly with displeasure and explicitly announced it was curtailing the AP’s access to the Oval Office, press pool events, and East Room activities. If there is a benign explanation for the Government’s decision, it has not been presented here. At the evidentiary hearing, the Government conceded that the record reveals viewpoint-discriminatory motives, so all indicators point to retaliation. Hr’g Tr. at 192:4–7 (“[I]t’s the style guide and their treatment of the legal name Gulf of America . . . [that] is the reason that the record currently reveals for that treatment.”). All that remains is whether the Government’s conduct has chilled or adversely affected the AP. The ramifications for the AP have undoubtedly been adverse. Start with photography. The AP’s total loss of access to the Oval Office and stifled East Room access has sent damaging ripples across its reporting capabilities. Put more bluntly, the AP is getting “absolutely [] slaughtered.” Hr’g Tr. at 37:22 (Vucci testimony). Though some other photographers have let the AP use a selection of their own photos out of solidarity, they are not providing it with the most desirable pictures. Id. at 34:5–20. These images are qualitatively and quantitatively inferior to what the AP would produce itself. See id. Considerable artistic discretion and individual creativity factor into the production of each image, and there is no real replacement for the missed photos. Cf. United States v. Long, 92 F.4th 481, 486 (3d Cir. 2024) (“[W]ritten descriptions . . . are imperfect substitutes because photos and videos convey a pictorial accuracy and detail that words cannot duplicate.” (cleaned up)). More, the AP does not get access to its competitors’ photos in real time, so whatever images it eventually uses are delayed. Hr’g Tr. at 34:17–20. And this time lapse has a significant adverse impact on AP’s competitive profile. See Id. at 35:19–36:6. All told, as for photographing these events, the AP is “basically dead in the water.” Id. at 34:19. Thus, there are not any “other sources” the AP can resort to as an adequate substitute. Balt. Sun, 437 F.3d at 419. This erosion of quality and capability is not limited to AP photojournalists—its wire reporting service for White House news is a shadow of its former self too. Text and print wire services “vigorously compete[] with each other to provide the fastest and most accurate news reporting” during and after the press pool events.6 Am. Compl. ¶ 43. Often this reporting is “instantaneous” and reporters can live-post breaking news alerts directly or notify their editors of important developments from the inside of a meeting or briefing. Id.; Pl. Reply Br. at 11. To state the obvious, if the AP’s wire reporters are not in the room when news happens, they can hardly be the first to break the news. Instead, they are forced to wait and pick up whatever scraps of verifiable information they can find as they watch their competitors break the story first. See Hr’g Tr. at 115:20–117:15 (discussing how lack of access significantly delays the AP in sending news alerts because it cannot immediately verify the information), 28:15–18 (“So if my competitors can get an image out a minute before me or three minutes before me on a major story, then I might as well delete my entire take because it’s worthless.”). True, the wire reporters sometimes get access to a video feed of an event. See Id. at 113:23–115:1. But reporting through secondhand sources simply does not allow for the “same level of completeness” in their reporting as if they had “been there in person.” Id. They cannot look around the room and use all five senses to craft a unique message for publication. And, as Miller pointed out, reporters “don’t know what [they’re] not there to see.” Id. Finally, and obviously, they cannot ask questions from outside a closed door. Those questions, if the President chose to answer, could lead to incisive and cutting-edge reporting that the AP cannot reproduce by watching from afar. These disadvantages have poisoned the AP’s business model. As its ability to rapidly supply new photographs and breaking news has dwindled, the AP’s customers have expressed concerns and turned to other sources for their needs. See Decl. of Kristin Heitmann, ECF No. 37-1, ¶ 9; see also Hr’g Tr. at 87:22–88:16 (discussing the AP’s “loss of opportunity” to have customers use its reporting). These concerns also led an advertiser to cancel a $150,000 deal. Heitmann Decl. ¶ 9. The facts reflect the precarious realities of life in the fast-paced world of journalism: A delay in capturing photos and details of breaking news can be catastrophic.” pg 35

Interestingly McFadden does not even evaluate the Fifth Amendment claims though he seemed to be open to those as well. This is as close to a slam dunk as we could have hoped for. The Trump admin will surely appeal this to the US DC Circuit Court of Appeals and SCOTUS but for now we will revel in the decision.

To end with McFadden’s own words:

“The AP seeks restored eligibility for admission to the press pool and limited-access press events, untainted by an impermissible viewpoint-based exclusion. That is all the Court orders today: For the Government to put the AP on an equal playing field as similarly situated outlets, despite the AP’s use of disfavored terminology. 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. 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 WHCA. But it cannot be treated worse than its peer wire services either. The Court merely declares that the AP’s Case 1:25-cv-00532-TNM Document 46 Filed 04/08/25 Page 40 of 41 41 exclusion has been contrary to the First Amendment, and it enjoins the Government from continuing down that unlawful path".” pg 40-41