Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I noted Friday, according to the D.C. Circuit (the federal appellate court with jurisdiction over D.C.), it's
- unconstitutional for the government to exclude press outlets based on viewpoint from spaces that have been broadly opened to the press, such as the main White House press briefing room but
- constitutional to do so as to spaces that aren't generally open to the press, such as interviews in the Oval Office.
The key precedent on this in AP v. Budowich (D.C. Cir. 2025), which upheld the exclusion of the AP from the Oval Office (because of AP's refusal to call the Gulf of Mexico "Gulf of America"), but reaffirmed (citing Sherrill v. Knight (D.C. Cir. 1977))
uncertain
which → note → Knight
When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint.
asserted
it → open → viewpoint
I stand by this legal analysis, but wanted to pass along the White House's contrary argument that was posted yesterday:
asserted
that → stand → argument
Last week, President Donald J. Trump removed CNN, MS NOW, and Politico from the White House grounds after years of false reporting.
asserted
Trump → remove → reporting
The First Amendment protects their right to publish; it does not entitle them to a hard pass, briefing room seat, or place in the press pool.
asserted
it → protect → pool
What is new, however, is the sudden claim that it becomes sacred only when the outlets are friendly to the Radical Left.
uncertain
outlets → become → Left
The rule was never "every outlet gets in."
asserted
outlet → get → ?
It was always "our side stays in."
asserted
side → stay → ?
For years, Democrat Administrations have restricted, punished, and locked out the press.
asserted
Administrations → restrict → press
The Obama White House branded Fox News as the "research arm" and "communications arm" of the Republican Party, barred it from a round of exclusive Sunday show interviews, instructed agencies to "skip" including it in pooled coverage, derided it as "really not news," and undertook an all-out effort to isolate the organization.
asserted
House → brand → organization
Barack Hussein Obama now calls a Fox ban "unimaginable," but his White House tried it — and his spokesman admitted they were willing to do it.
asserted
they → call → it
The Obama Justice Department labeled Fox News correspondent James Rosen a possible "co-conspirator" in a criminal leak case, secretly monitored his emails and phone calls, and tracked his movements — an "unprecedented" level of surveillance and intimidation of a journalist over his reporting.
asserted
Department → label → reporting
Obama White House officials restricted the Boston Herald from coverage — writing that pool slots depended on covering Obama "fairly" — after the paper ran a front page Mitt Romney op-ed.
asserted
paper → restrict → ed
After a San Francisco Chronicle reporter recorded protesters interrupting an Obama fundraiser, White House officials threatened to strip the outlet from access and warned of retaliation if the paper reported on it.
asserted
paper → record → it
The Obama Justice Department secretly seized two months of telephone records covering more than 20 Associated Press lines used by more than a dozen journalists — targeting them over their reporting.
asserted
Department → seize → reporting
The Biden White House blocked New York Post reporter Steven Nelson from covering the President's only daytime public event — despite empty seats in the room — after the reporter pressed Biden on his family's shady business dealings.
asserted
reporter → block → dealings
The Biden Administration restricted more than 440 reporters from White House access through a new, retroactive press credentialing process — with independent and conservative journalists taking a heavy share of the hit.
asserted
journalists → restrict → hit
The White House Correspondents' Association barely objected.
asserted
Association → object → ?
In the Obama campaign's final days, senior campaign officials pulled reporters from three prominent outlets off the traveling press plane — restricting them from coverage after the papers endorsed Obama's opponent.
asserted
papers → pull → opponent
The same media now suing once urged a ban on Fox News.
asserted
media → sue → News
CNN's Brian Stelter repeatedly floated removing Fox News from the White House press tool as a "political tool," and later even suggested Fox News be dropped from cable altogether.
uncertain
News → float → cable
During the first 100 days of President Trump's second term, the Media Research Center found that 92% of coverage by mainstream outlets was negative compared to nearly 60% positive coverage during the same period under Biden.
asserted
% → find → Biden
That's more like a political operation with cameras than a free press holding power to account.
asserted
That → hold → account
No President is required to host a hostile operation on the grounds.
asserted
President → require → grounds
Access has always been a privilege — and President Trump is applying that rule.
asserted
Trump → apply → rule
Again, I don't think any of this involved exclusion of outlets based on viewpoint from all of the White House, including the main press briefing room.
asserted
any → think → room
But I thought I'd note the argument, even though I think it's inconsistent with the D.C. Circuit precedent.
asserted
it → think → precedent
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