A three-judge panel of the U.S. Court of Appeals in Washington has ruled that, at least for now, the White House can exclude The Associated Press from coverage of presidential events in most venues. The 2-1 ruling puts on hold a decision by a lower court in favor of the AP.
The decision is 55 pages long, and I’ve simply scanned it for a few highlights. But it appears that the court’s main argument is grounded in the number of media organizations that would like to gain access to President Trump’s events. It’s not so much that the White House is kicking out the AP as it is that they’re letting someone else in instead. Here’s how Judge Neomi Rao puts it in her majority decision:
The White House is likely to succeed on the merits because these restricted presidential spaces are not First Amendment fora opened for private speech and discussion. The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted. Moreover, without a stay, the government will suffer irreparable harm because the injunction impinges on the President’s independence and control over his private workspaces.
In a strongly worded dissent, Judge Cornelia Pillard writes:
In granting a stay, my colleagues assert a novel and unsupported exception to the First Amendment’s prohibition of viewpoint-based restrictions of private speech — one that not even the government itself advanced….
Make no mistake as to why it matters that the panel majority accepts these theories. In the short term, the court allows the White House to rely on viewpoint to exclude the AP from the Press Pool pending a final decision on the merits, a process that typically takes months. And, looking further ahead, if any merits panel were to accept those theories, the result would be a Press Pool — and perhaps an entire press corps — limited during Republican administrations to the likes of Fox News and limited to outlets such as MSNBC when a Democrat is elected.
As you may recall, the Trump regime banned the AP from many of its events after the wire service refused to go along with President Trump’s absurd insistence that the Gulf of Mexico be referred to as the “Gulf of America.” Map services from Apple, Microsoft and Google quickly toed the line, as did several news organizations; the AP, though, held firm.
But as Zach Montague and Minho Kim report for The New York Times, Trump changed the facts on the ground, possibly making it easier for the the president to prevail in a lawsuit brought by the AP. Most notably, the regime ended the practice of allowing the White House Correspondents’ Association to determine which news outlets would be included in the press pool.
The White House now has the discretion to decide for itself. And though announcing that the AP was being banned might not withstand constitutional scrutiny, saying that the pool will include NewsMax, Breitbart and Catturd, and “oh, sorry, there are no more slots” is an assertion that might hold up. It’s a complicated decision, since the majority ruled that the AP must be allowed into press briefings where there is some give-and-take with the president but may be excluded from merely observational events, such as those that take place in the Oval Office.
Needless to say, this is fairly disastrous for democracy since it allows Trump to decide who will cover him. Excluding the AP is particularly outrageous since so many news outlets are dependent on the wire service for coverage of national and international affairs; indeed, the service provides news to about 15,000 media organizations around the world. It is for that reason that the AP had always been included in the press pool.
The AP’s own story on the stay, by media reporter David Bauder, calls Friday’s stay “an incremental loss.” But as Judge Pillard notes, it could take months for the full Court of Appeals to render a decision, and then there’s the prospect of the case winding up before the Supreme Court. If nothing else, the Court of Appeals’ endorsement of viewpoint discrimination should not be allowed to stand. It would be yet another lurch down the road to authoritarianism if the high court ultimately decides that Trump has found a way to censor the AP without violating the First Amendment.
More: As I’ve mentioned before, we now have access at Northeastern to Claude, a leading AI chatbot from Anthropic. Though I have deeply mixed feelings about AI, I also think it’s worth experimenting with. I asked Claude to produce a 1,200-word summary of the decision, and you can read it here. I can tell you that reading Claude’s handiwork did lead me to go back and add a tweak to this post.
