In Friday’s AP v. Budowich, the D.C. Circuit stayed the preliminary injunction that required the White House to let the AP back into White House, Air Force One, and Mar-a-Lago briefings. Judge Neomi Rao, joined by Judge Greg Katsas, wrote a statement explaining the ruling; here’s a short excerpt from the 27-page opinion.
The Associated Press wants to be in the room where it happens. But in February 2025, White House officials excluded the AP from the Oval Office and other restricted spaces. Officials announced that access was denied because the AP continued to use the name Gulf of Mexico in its Stylebook, rather than the President’s preferred Gulf of America. The AP sued, alleging that its exclusion violated the First Amendment. The district court held the AP was likely to succeed on its constitutional claims, and it issued a preliminary injunction prohibiting White House officials from denying, on the basis of viewpoint, access to press events held in the Oval Office, on Air Force One, and at the President’s home in Mar-a-Lago.
We grant in part the government’s motion for a stay pending appeal. 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….
Reporters and photographers have long been permitted access to the White House complex to cover the President and his administration. The White House manages access by requiring journalists to obtain a press credential called a hard pass. More than one thousand journalists hold hard passes, through which they may access spaces such as the James S. Brady Briefing Room, where the White House Press Secretary delivers regular briefings.
Hard pass holders may also sign up via a reservation system to attend larger events hosted in the East Room, which is often used for meetings with foreign leaders, executive order signings, and press conferences. Because the White House has opened these press facilities “to all bona fide Washington-based journalists,” hard passes may not be denied arbitrarily or based on the content of a journalist’s speech. Sherrill v. Knight (D.C. Cir. 1977).
A small subset (around one percent) of hard pass holders is sometimes invited into even more restricted White House spaces, such as the Oval Office and the Cabinet Room. This group of privileged journalists, referred to as the “press pool,” has historically been selected by the White House Correspondents’ Association, a private organization of which the AP is a founding member. Since its inception, the press pool has had a relatively stable, although not fixed, membership. Journalists selected to be part of the press pool may travel with the President aboard Air Force One and attend small press events at the President’s home in Mar-a-Lago, usually to observe presidential speeches and events. For many years, the Correspondents’ Association offered the AP a standing invitation to send one reporter and one photographer to press pool events.
On February 11, 2025, White House Press Secretary Karoline Leavitt informed the AP that it would not be permitted in the Oval Office or press pool unless it revised its Stylebook to refer to the Gulf of America, which President Trump had recently renamed from the Gulf of Mexico. The President and other senior White House officials publicly stated that the reason for the AP’s exclusion was its continued use of the name Gulf of Mexico. The AP was similarly excluded from events in the East Room, despite signing up in advance through the reservation process. On February 25, the White House announced it would select journalists for participation in press pool events, instead of deferring to the selection made by the Correspondents’ Association….
The district court held the Oval Office, Air Force One, and similar restricted spaces are nonpublic fora when members of the press pool are present, and therefore the AP’s exclusion on the basis of viewpoint violates the First Amendment. We conclude the spaces to which the AP seeks access are not any type of forum. As such, the White House may consider journalists’ viewpoints when deciding whether to grant access….
“A nonpublic forum is government property that is not by tradition or designation a forum for public communication.” The government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Government property does not become a nonpublic forum unless and until the government takes some affirmative step to open the space for private communication. While the government need not open up property “that is not by tradition or designation a forum for public communication,” the government “creates a nonpublic forum when it provides selective access for individual speakers.” Until the government opens a restricted space to private speech between private parties, such a space is not a First Amendment forum at all.
Our cases provide guideposts for applying forum analysis to spaces in the White House. 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. Sherill v. Knight.
On the other hand, we have never suggested that there are any First Amendment restrictions on “the discretion of the President to grant interviews or briefings with selected journalists.” Sherrill. In deciding which journalists to speak with, the President may of course take into account their viewpoint. If President Trump sits down for an interview with Laura Ingraham, he is not required to do the same with Rachel Maddow. The First Amendment does not control the President’s discretion in choosing with whom to speak or to whom to provide personal access. It is a time honored and entirely mundane aspect of our competitive and free press that public officials “regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters’ expression.” The Baltimore Sun Co. v. Ehrlich (4th Cir. 2006).
These uncontested principles provide the framework for assessing the AP’s claim that the Oval Office and other restricted spaces become nonpublic fora when the White House selects a small group of journalists (such as the press pool) to be present for observational newsgathering and reporting.
{While viewpoint discrimination is often unconstitutional, we reject the dissent’s primary argument that the White House’s viewpoint-based exclusion of the AP is per se unconstitutional. This blanket conclusion finds no support in our First Amendment jurisprudence, which carefully assesses the type of government property at issue and recognizes that some government spaces are not fora at all and therefore are not subject to prohibitions on viewpoint discrimination.} …
The Oval Office is the President’s office, over which he has absolute control and discretion to exclude the public or members of the press. As the district court explained, the Oval Office “is a highly controlled location … shrouded behind a labyrinth of security protocols,” which “few members of the public will ever” enter. The President uses the space for myriad purposes, including speeches, signing ceremonies, and meetings with senior officials or heads of state. When events in the Oval Office are broadcast to the public, they feature the President’s speech and expressive activity.
It hardly needs to be said that the Oval Office, Air Force One, or even the East Room are not places “traditionally open to assembly and debate,” nor are they open to the public for expressive activity. The parties agree the White House could, consistent with the First Amendment, exclude press from these spaces entirely.
The AP’s primary contention, however, is that when the Oval Office and similar spaces are opened to the press pool, they become nonpublic fora and therefore the White House may not withhold access on the basis of viewpoint. We disagree….
[T]he press events to which the AP seeks access do not involve the type of communicative activities that transform a restricted government space into a nonpublic forum. “[F]orum analysis applies only to communicative activities.” In each of the Supreme Court’s forum analysis cases, the activity triggering application of the doctrine involved “assembly, the exchange of ideas to and among citizens, the discussion of public issues, the dissemination of information and opinion, and debate—all of which are communicative activities.” Where, as here, a small group of journalists is permitted to attend events in restricted White House spaces like the Oval Office, the primary activity is observational newsgathering…. Newsgathering may enjoy some First Amendment protections from government interference. But newsgathering is not itself a communicative activity. When journalists are invited to observe events in the Oval Office, they are gathering information for their reporting, which is “a noncommunicative step in the production of speech.” …
[T]hese spaces should [also] not be classified as nonpublic fora because access to them is tightly controlled and highly selective. Only about one percent of hard pass holders can fit in spaces like the Oval Office. When access to government property is very limited, considerations of viewpoint may be permissible….
{Both the AP and the district court at various points suggest that if the White House maintains something like the press pool, it must allow access on a viewpoint neutral basis. For the reasons already explained, a group of journalists observing presidential events is not a forum of any sort. Accordingly, the White House should not have to choose between excluding all journalists and admitting journalists under the restrictions of a nonpublic forum. By recognizing the distinctions between different fora “we encourage the government to open its property to some expressive activity in cases where, if faced with an all-or-nothing choice, it might not open the property at all.”}
Finally, the fact that the President is communicating at these events further distances this context from forum analysis. When the government is speaking, forum analysis is usually inapplicable because while the First Amendment “restricts government regulation of private speech[,] it does not regulate government speech.”
Although the White House disclaims primary reliance on the government speech doctrine, the events to which the AP seeks access by their nature involve presidential, i.e. government, speech. The messages conveyed in the Oval Office are government speech and opportunities for the President’s administration to express its message. “When government speech is involved, forum analysis does not apply and the Government may favor or espouse a particular viewpoint.” Forum analysis is also inappropriate when government speech occurs within a limited space, such as the Oval Office, the “essential function” of which would be defeated by compelling the President to support private speech on a viewpoint-neutral basis.
{The district court relied heavily on a Seventh Circuit decision, which concluded that an “invitation-only, limited-access press event” hosted by the governor of Wisconsin was a nonpublic forum. See John K. MacIver Inst. for Public Policy, Inc. v. Evers (7th Cir. 2021). In that case, however, while the Governor argued that his press events were likely not a forum at all, he acknowledged that nonpublic forum analysis “might apply” under the circumstances. Without explanation, the Seventh Circuit held “the non-public forum analysis is the appropriate one” and concluded that the Governor’s access policies were constitutional even under this more demanding standard. The case is therefore of limited relevance to the inquiry here, where the parties dispute whether these spaces are fora at all.}
The panel majority’s opinion also rejected, for similar reasons, the AP’s claim that it was impermissibly retaliated against based on its viewpoint:
Choosing who may observe or possibly speak with the President in these spaces is not the type of action that supports a retaliation claim. Rather, it is more akin to a decision about how the President wields the bully pulpit.
{Our dissenting colleague emphasizes that the denial of a government benefit based on speech is often actionable. While this is generally true, the press pool is in no way a government benefit program. Denying unemployment benefits, tax exemptions, or trademarks on the basis of viewpoint can support a First Amendment retaliation claim. Denying access to observe or speak with the President in his private spaces cannot. The dissent acknowledges that the President may take viewpoint into account when granting interviews to select journalists. Our holding today reflects the fact that granting access to spaces such as the Oval Office is more like granting interviews than like denying unemployment benefits.}
Furthermore, in determining whether a First Amendment retaliation claim is actionable, courts may be guided by “long settled and established practice[s].” White House staff, not to mention the President, often form relationships with reporters who cover the administration. Hard pass holders and press pool members daily jockey for access to certain privileged spaces and to senior administration officials. As the AP acknowledges (and the district court recognized), the White House can and does reward journalists with advantages like interviews with the President and the opportunity to ask questions at press events. Such viewpoint-based preferences occur at every level of government in the relationship between elected officials and the press. These pervasive practices simply do not give rise to a retaliation claim, regardless of how valuable the access may be….
Judge Nina Pillard dissented; a short excerpt from her opinion (which is also 27 pages long):
Defendants have not made the showing critical to their stay application that they are likely to succeed in establishing that the First Amendment allows them to oust journalists from the White House Press Pool based on their employing organization’s viewpoint. Forum analysis readily confirms that failure. My colleagues’ effort to distinguish forum analysis is nonetheless beside the point because the bar on viewpoint discrimination in nonpublic forums for private speech is but one iteration of a broader First Amendment principle strongly supportive of the AP’s claims.
The majority’s defense of defendants’ viewpoint-based exclusion of the AP from the Press Pool utterly disregards that broader principle. So, too, does its assumption that the AP’s retaliation claim is likely to fail. Denial of a tangible benefit in retaliation for a recipient’s own viewpoint expressed elsewhere violates the First Amendment….
The prohibition on viewpoint discrimination applies equally to the imposition of penalties and the denial of benefits. The government may not condition receipt of any otherwise-available benefit or opportunity on a recipient’s endorsement or avoidance of a particular viewpoint. That rule applies to government benefits generally, including federal funding, tax exemptions, trademarks, government contracts, and public-sector employment. Even where a government program is designed to support a small number of speakers selected on discretionary, aesthetic criteria, it may not impose restrictions intended to punish “certain ideas or viewpoints.” NEA v. Finley (1998). And even discretionary support to public broadcasters cannot be allocated to “curtail expression of a particular point of view.” FCC v. League of Women Voters (1984)….
The President’s use of the Oval Office as a platform for his official speech does not entail governmental authority to impose viewpoint restrictions on the Press Pool. Even where the government funds private organizations to advance official policy and therefore can control the viewpoint expressed within the funded program, it may not deny support based on disapproval of the recipient’s speech outside that program. The government may not require private participants to “adopt—as their own—the Government’s view on an issue of public concern as a condition of funding.” That is why the Supreme Court in Agency for International Development held that the government violated the First Amendment rights of an organization receiving public support to advance the government’s HIV/AIDS prevention mission when it required the organization to echo the government’s opposition to prostitution in the organization’s own work with its own funds. Id. at 218-21. The rule that public funds may be limited to the purpose for which they are granted does not empower the government to impose viewpoint restrictions on grantees’ private speech.
Whatever my colleagues mean by emphasizing that Oval Office events “involve” governmental speech because the President typically speaks there, the Press Pool’s coverage of those events—let alone the content of the AP’s Stylebook—is not governmental speech legitimately subject to official viewpoint control. My colleagues are also wrong that the “essential function” of the Oval Office is “defeated” by the presence of a Press Pool free from viewpoint discrimination. The Press Pool has operated without viewpoint control for almost a century during which presidents have communicated directly from the Oval Office. The purpose of the Press Pool has never been to propagandize for the President, but only to enable reliable news coverage of his leadership. Public officials’ prerogative to speak for the government does not include any ability to control private parties’ speech on their own behalf, even when that speech relates to the government’s message….
Defendants’ (and the majority’s) principal argument is that the President has unlimited discretion to pick “which journalists to grant special access unavailable to other members of the press corps.” Their sole precedent is Baltimore Sun Co. v. Ehrlich (4th Cir. 2006), which is both inapposite and not binding on this court. The plaintiff journalists in Baltimore Sun objected to government officials’ refusal to grant them interviews or return their calls. Judicial relief would have required the defendants to speak with certain reporters. Any such command would have strained the basic principle that “[t]he First Amendment’s Free Speech Clause does not prevent the government from declining to express a view,” and that the government may choose for itself “what to say and what not to say.”
The AP does not assert a right to have the President return its phone calls, or to “interact and speak with government officials.” What the AP challenges is its reporters’ and photographers’ exclusion from a government program for which it is otherwise fully eligible and has long participated, based solely on the AP’s own expression in its Stylebook and reporting….
The government is represented by lawyers Daniel Tenny, Eric Dean McArthur, Mark Reiling Freeman, and Steven Andrew Myers (Justice Department) and Jane M. Lyons (D.C. U.S. Attorney’s Office).
