Trump’s court victory over the AP may be provisional, but it could set the stage for something worse

Trump meets the press. 2019 photo by the Trump White House.

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.

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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.

The latest low: The bully-in-chief appoints a judge who supports dwarf-tossing

Candidate Trump mocks a disabled reporter in 2016.

Previously published at WGBHNews.org.

President Trump, whose multifarious assaults on basic decency include mocking a disabled reporter in front of a crowd of hooting supporters, may have hit yet another new low. Neomi Rao, Trump’s choice to replace Brett Kavanaugh on the D.C. Circuit Court of Appeals, is an enthusiastic supporter of dwarf-tossing. Rao’s peculiar obsession with the practice of throwing short-statured people against Velcro walls was reported late last week by Stephanie Mencimer in Mother Jones.

As you might imagine, Rao, a veteran right-wing activist currently serving in the Trump administration, does not claim to take part in this humiliating and dangerous practice. Rather, she has argued on several occasions that dwarf-tossing should be a matter of choice, writing that it should be up to the tossee whether picking up a few bucks in some shady barroom is worth the risk to his health and his self-respect.

Rao explained her views several years ago at The Volokh Conspiracy, a libertarian legal blog, in which she criticized a ruling in France against a little person who wanted to take part in dwarf-tossing. Rao wrote that it “demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices.” She added:

The issue is not whether laws prohibiting dwarf throwing, burqa wearing, prostitution, or pornography may be desirable social policy. Rather these examples demonstrate that the conception of dignity used to defend such policies is not that of human agency and freedom of choice, but rather represents a particular moral view of what dignity requires. These laws do not purport to maximize individual freedom, but instead regulate how individuals must behave in order to maintain dignity (and in the case of criminal prohibitions, stay out of jail).

The individual-rights argument may seem appealing. But it ignores all kinds of activities that society has decided to ban or regulate in order to protect not just the person taking part in those activities but also the rest of us — prostitution, as Rao notes, as well as drug use, cockfighting, underage drinking, casino gambling (until recently), practicing medicine without a license, and driving on the wrong side of the street. So it is with dwarf-tossing, which not only puts the person being tossed at risk of injury because of the spinal abnormalities present in most forms of dwarfism but also places others with dwarfism in harm’s way by normalizing a practice that should be considered beyond the pale.

I have skin in this game, though I hardly consider it a game. Our daughter, Rebecca, has achondroplasia, the most common type of dwarfism. My 2003 book, “Little People,” examines the culture and history of the dwarfism. Among the people I interviewed was Doyle Harris, a dispatcher at the University of Louisville and a former official with Little People of America, an organization for dwarfs and their families. As I wrote in the book:

Nearly twenty years ago, he [Harris] and some friends were waiting outside a Louisville nightclub. It was right around the time that dwarf-tossing — an Australian import that rears its ugly head wherever drunk, stupid men in their twenties gather — had first come to the attention of the media. “One of these guys came out — he was a little inebriated — and he went, ‘Oh, they’re going to have dwarf-tossing tonight. Well, let me practice,'” Harris recalled. “And the next thing I know, the guy literally picks me up and throws me out onto the grass. It was not a good situation. It was very demeaning to me. I was in fairly nice clothes, I was looking to go out, and I’m out in the grass, rolling around, getting grass stains and muddy. It was totally against my will.”

Florida, at one time the locus of dwarf-tossing in the United States, banned the practice in 1989. Incredibly, a state legislator proposed lifting the ban in 2011, dredging up the tiresome freedom-of-choice argument. As Angela Van Etten, a lawyer with dwarfism whose work helped lead to the original ban, wrote in The Huffington Post: “Dwarf tossing appeals to a lower instinct in people and creates a hostile environment in which Little People are disrespected and ridiculed. It legitimizes bully behavior.”

Exactly. Yet we now live in an environment in which bullying is not only condoned but indulged in by the president. In that respect, Neomi Rao seems like the perfect Trump appointment. According to Mother Jones, in addition to her fervor for dwarf-tossing, she holds retrograde views on LGBTQ rights and affirmative action and is an anti-regulation zealot. She should not be confirmed. But who will stop her?

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