When the Associated Press refused to rename the Gulf of Mexico the “Gulf of America” in its style book, the White House excluded the once-essential news organization from its press briefings.The AP filed a lawsuit arguing that this was a violation of the First Amendment by the Trump Administration, as an infringement on the Freedom of the Press and the first Amendment.
Yesterday U.S. District Court Judge Trevor McFadden ruled in the AP’s favor, granting the AP’s motion for a preliminary injunction. Judge McFadden acknowledged that there is no constitutional right to attend a press briefing at the White House:
[T]his injunction does not limit the various permissible reasons the Government may have for excluding journalists from limited-access events. It does not mandate that all eligible journalists, or indeed any journalists at all, be given access to the President or nonpublic government spaces. It does not prohibit government officials from freely choosing which journalists to sit down with for interviews or which ones’ questions they answer. And it certainly does not prevent senior officials from publicly expressing their own views……[But]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….
Indeed, there is a considerable precedent holding that the government may not retaliate against anyone, including journalists, based on an exercise of First Amendment rights to free speech. There is no doubt that this is what the White House was doing to the AP; Trump Paid Liar Karoline Leavitt said so unambiguously.
Ironically, because of this, I don’t think the White House can exclude the AP at all now, since any adverse action will appear to be as retribution for the silly Gulf of America spat. There are so, so many other good reasons to marginalize the Associated Press: it is biased, partisan, and incompetent. But because the White House picked an unconstitutional reason to penalize it initially, now it can’t penalize it at all.
Ethics Alarms 
All the White house needs to do is put every news organization, podcaster, or other “influencer” in a pool and rotate them through. AP will get an equal shot but not a preferred shot. Not having regular access but only being subject to the vagaries of the lottery like all others used will have a detrimental effect on the value of AP reports. We can just call this journalistic justice.
I find the idea that any journalist that demonstrates a willingness to distort the facts will be able to claim that any exclusion is predicated on retaliation for their bias to be as much of a problem as claiming someone excluded them for their bias.
If this is a precedent no government employee may face sanctions for deadnaming, misgendering another, or any other communication the employee uses. Moreover, in my opinion, this concept should render the FACE act invalid given that the government is imposing a sanction on a group based solely on their viewpoints provided that the person charged is not physically preventing access to a health facility.
I think this statement literally contradicts itself. The statement is intentionally creating a right where they clearly state that no right exists, it’s legal HOGWASH! This sounds a lot like an activist ruling not a legal ruling.
If the AP has no constitutional right to enter the Oval Office then they have no constitutional right to enter the Oval Office, period, end of argument!
If there is no constitutional right to enter the Oval Office then the White House can exclude anyone from the Oval Office for whatever reason they see fit, it doesn’t matter what the optics are, period.
You cannot create a constitutional right where no constitutional right exists. This ruling is clear violating the constitutional rights of the President of the United States to choose who he wants in the Oval Office. Until this is overturned by SCOTUS, President Trump should cease to have any journalists in the Oval Office.
In my opinion, this should be struck down by SCOTUS with prejudice.
Furthermore, it’s my opinion…
Since there is no constitutional right for a journalist to access to the Oval Office, then access is a privilege (by invitation only) and any judge that tries ram through access of any journalist to the Oval Office making implications that it is some kind of right, is intentionally violating the individual rights of the President of the United States.
I’m open to contradictory opinions, so convince me I’m wrong.
I think you’re right. I wondered the same thing, but felt too unlearned to broach the subject. It seems these kinds of decisions by lower courts are made knowing full well it could end up in the hands of SCOTUS. It’s almost as though liberal judges want to force the high Court’s hand so the more Constitutional justices can again be labelled “unelected, existential threats to democracy.”
There’s a whole lot of district court judges issuing injunctions against the Trump administration. That doesn’t mean that the administration is going to lose all those lawsuits.
The Supreme Court just slapped down three of those judges over the weekend whilst declining to issue any general edicts on the subject of nationwide injunctions.
The game is afoot! We’ll have to see what the actual trial results will be. Injunctions like this generated a lot of publicity in the first Trump administration but all the injunctions that got overturned — not covered so widely.
Conservative blogger/lawyer John Hinderaker wrote at Powerline when this suit was first filed: “[I]n general, government entities can’t retaliate against people or companies on account of their exercising First Amendment rights, as the AP certainly was here. So I expect the AP will win this case.”
And I don’t think SCOTUS would seek to undermine the precedent.
“[I]n general, government entities can’t retaliate against people or companies on account of their exercising First Amendment rights, as the AP certainly was here. So I expect the AP will win this case.”
I think that would apply if they had kicked the AP reporter out of the regular press briefings and stripped him of his press credentials, they did not do that. Not letting him into the Oval Office for once in a while things is different.
How far is this asserting constitutional rights where there are no rights going to go? Pretty soon some entitled reporter is going to make some absurd legal claim that not being called upon by the President to ask a question is somehow subverting their first Amendment rights.
I hope Alan Dershowitz does a legal seminar on this particular topic, it would be a great topic. I’ll go right now and suggest it.
It’s sort of like you don’t have a right to any job, but you have a right to not be discriminated against during the hiring process or a right to not be fired due to discrimination even though you don’t have a right to not be fired.
That’s correct. Another is an analogy between an employee making a sexual harassment complaint, even a frivolous one. You can’t fire that employee for making the complaint, so you can’t fire that employee for being lousy at the job either.
I disagree.
If you’re going to compare then how about comparing something a bit more apples to apples. How about this;
I’m a world famous blogger influencer and I choose to talk to a group of reporters in on my front lawn regularly, but I select only a few reporters to invite into my living room for special occasions. One of the reporters I don’t allow in my living room is the one that pissed me off last week because he intentionally falsely reported that the name of my car is Norbert (which was its previous name) when it’s 100% clear to everyone, including that reporter, that I changed the name of my car to Bubbles. As far as I’m concerned, I don’t give a damn if that reporter doesn’t like being excluded from more intimate meetings in my living room, it’s my home and that reporter can kiss my ass.
My living room is mine and no one has the right to enter without my expressed permission, the same applies to the Oval Office, the Oval Office is the President’s office and no one has a right to enter without his expressed permission.
Does that help clarify my opinion?
you’re allowed to be racist, discriminate, etc, as a private citizen but the government or business can not (normally)
Did I say anything that could be remotely considered racist or discriminatory, if so please be specific in pointing it out.
not at all! My point is that you can do things that the government can’t. For instance you can say “no women in my house!” But the White House can’t say “no women allowed in the White House!”
Okay, now I get what you’re saying.
The White House didn’t do anything remotely similar to your example. The AP reporter was not banned from the White House, he still had his press Credentials, he still attended the Press Briefings along with everyone else, in fact he still sat in the same seat he’s been sitting in all along which is front row middle seat flanked by other media giants like CNN & Fox News.
Jack correctly wrote,
The AP was given a defacto right that no other media company gets, this is wrong.
What the judge did was literally create a right out of the blue and gave that right to a single news outlet, a right that no other news outlet on planet Earth has, a right that the White House and the President of the United States are supposed to comply with even though it’s been openly and correctly stated that no reporter from any news outlet has a Constitutional right to be in the Oval Office for any reason.
This activist judge basically bastardized the Constitution creating a single right for a single media company all while he undermined the individual rights and the authority of the person elected to be the President of the United States and he did that in one ruling. In my opinion, this activist ruling must be stricken by SCOTUS with extreme prejudice and the judge that issued the ruling sanctioned in some way.
Aren’t I a stickler sometimes. 😉
Let me add this to my overall opinion; I think what the White House did to the AP and the reported was about as petty as you can get and therefore unethical, but the White House did have every legal right to exclude the AP and their associated reporter from Oval Office specials for whatever reason they saw fit as long as they didn’t strip the AP of their White House Press Corps credentials and the ability to attend regular Press Briefings in the James S. Brady Press Briefing Room in the West Wing.
The WH banned the AP from attending certain WH events based on speech. Thats unconstitutional since the WH is the government. It can be one event, 20, the Oval Office and nothing else, whatever..they can’t ban the AP based on their speech. It’s a first amendment violation.
I respect your opinion and the opinions that others have offered here on this topic. I’ve stated my opinion and given my reasons for my opinion. I may be right and I may be wrong.
I really hope this one gets to the Supreme Court and I honestly don’t think it’s quite as cut and dried a many think it is.
Regardless of what SCOTUS does with this, I hope that Alan Dershowitz takes my suggestion to give a legal seminar on this particular topic, I think this particular controversy is fascinating. Dershowitz does a fabulous job evaluating based on the words and the intent of the Constitution and, as far as I can tell, he is very neutral with the opinions he shares, it’s pure unbiased Constitution law and as a genuine Constitution scholar he explains it really well. If he does a seminar on this, I will make sure to share a link to it here.
Finally; if I’m wrong, then I’m wrong and I’ll learn from it.
Thanks everyone for the debate, we may disagree on some points but I really do appreciate it.
But this is tricky, you have to admit. What if a news outfit lied in all it’s stories? Lies are protected speech if they don’t amount to fraud. Can’t the government make qualitative assessments of who gets a pass?
As I’m understanding this, we’re not talking about a pass, as in “Press Pass” credentials, were talking about special privilege’s that are beyond what a simple Press Pass gets the reporter – as I’m understanding it entering the Oval Office is an invitation only kinda thing.
Correct. I mean “pass” as in “we’ll let you get away with this because we have to.” Unlike Hinderaker, I’m not so sure the WH can’t legitimately say it’s reacting negatively to conduct: unethical journalism.
Can’t the government make qualitative assessments of who gets a pass
Yes but not in this situation because the WH was very explicit (as in dumb) and made it clear that they were banning the AP because of the Gulf of America thing. So it fell under a first amendment violation.
The WH’s comments made it easy for the AP to win.
Not that easy.One question is whether what the AP is pure speech or conduct. Is deliberately dead-naming the Gulf deliberate misinformation? The the argument is that AP isn’t a legitimate news organization. What if, out of spite, it insisted in its style book that reporters call Trump “President Stinky.” Or just “Mr. Grabthembythepussy”? Or “President Nixon”? And the White House said openly this was why they had been deemed unworthy of the benefit of being able to attend press briefings?
Well you have to look at the facts. The AP was enough of a legitimate news organization to join WH events for 100 years until they refused to call it the Gulf of America and the WH banned them, claiming that they were banned for not updating their style book. The WH was super transparent here. Whoops.
The conduct the AP was banned for was speech, which is protected under the first amendment since the AP gave a legitimate editorial reason for not updating their style guide since the international name for the Gulf of America is still Gulf of Mexico and their a “wire” news outlet read all over the world.
I don’t know what would happen in the scenarios you mentioned, but I think if they did start writing crap like that, the courts might consider whether it’s still acting as a legitimate press organization or veering into satire.
You’re still glossing over the issue. What the AP was for a hundred years isn’t relevant: it is now a partisan, dishonest, untrustworthy operation. Practicing unethical journalism is conduct, and the administration has a colorable argument that the act of ignoring the President’s EO—he has the power to rename the Gulf in the US—is a deliberate political act. Not every organization can be present in White House press functions, so the AP’s presence is a privilege and not a right. Is the decision to exclude the AP based on mere speech or triggered by a demonstration of a lack of competence and trustworthiness?
It’s a closer call than you’re making it out to be.
it is now a partisan, dishonest, untrustworthy operation.
Irrelevant since that still falls under the first amendment AND I dont agree. AND that’s not what the WH explicitly said why they were banning the AP.
Practicing unethical journalism is conduct, and the administration has a colorable argument that the act of ignoring the President’s EO—he has the power to rename the Gulf in the US—is a deliberate political act.
Disagree and also irrelevant since political speech falls under the first amendment.
The AP explained why they didn’t change their style guide. Trump does NOT have the power to rename it internationally. The AP is read internationally. Thats why they didn’t change it. Has nothing to with politics.
Not every organization can be present in White House press functions, so the AP’s presence is a privilege and not a right.
Absolutely. But the WH made it very clear WHY they were banning the AP. That’s why they lost.
Is the decision to exclude the AP based on mere speech or triggered by a demonstration of a lack of competence and trustworthiness?
Speech. Since that’s exactly what the WH said.
It’s a closer call than you’re making it out to be.
Dont agree. Very straight forward since the WH made it clear.
OK, I now understand your mode of debate. Just repeat the same thing over and over without dealing with opposing arguments. Got it. I don’t waste time with commenters who argue this way. Example: “Speech. Since that’s exactly what the WH said.” The speech described could also be fairly considered conduct. AS I SAID, I am willing to conclude that it was just below the line, but saying “I disagree” is not an argument. The White House can decide that the statement is an example of the AP deliberately choosing to undercut the President. That would be conduct. Citing the act/speech that led the WH to decide the AP was no longer worthy does not automatically pigeonhole it as pure speech Similarly
“Practicing unethical journalism is conduct, and the administration has a colorable argument that the act of ignoring the President’s EO—he has the power to rename the Gulf in the US—is a deliberate political act.”
“Disagree and also irrelevant since political speech falls under the first amendment.” Disagree with what? That unethical journalism is conduct? It is definitely conduct: journalism involves speech, but it is not only speech. Disagree that Trump has the power to rename the Gulf in the US? He sure does. Disagree that ostentatiously demonstrating that an organization doesn’t recognize the power of POTUS is a political act? It is more act than speech: what’s the political statement inherent in using the word “Mexico”? It’s the act of refusing to follow the Presidential order…and that’s an act.
I know, you “disagree.” If you can’t do better than that, I don’t care.
it’s not conduct because it’s words written down in their newspapers and style guide book. It’s clearly speech
Here’s an out of the box thought Marisa, maybe it’s both conduct and speech. My opinion is that it simply doesn’t matter because it’s completely irrelevant to the issue of privaledged invitation only access to the Oval Office.
Here are two very important yes or no questions, and yes of course they are pointed;
1. Does an Associated Press reporter have a constitutional right to attend special events in the Oval Office?
2. Does the President of the United States have the right as President of the United States to choose who he allows in the Oval Office, which is the Office of the President of the United States?
No elaboration is required, just a simple unconditional yes or no.
I figure that it’s a fact that the President changed the name to Gulf of America. If the AP wishes to… er… deadname the Gulf, then it’s printing disinformation. Constitutionally, they are allowed to do that, but if the White House elects to use reliable sources to distribute information instead of certifiably unreliable ones, good for the white house.