Does the White House Blocking AP From Press Events Violate the First Amendment?

Latest developments - last updated Feb. 26

- On February 24, responding to a lawsuit brought by AP in response to the White House’s decision, U.S. District Judge Trevor N. McFadden opted not to immediately restore the AP’s access to presidential events but urged the White House to reconsider its decision, saying, “It seems pretty clearly viewpoint discrimination.”

- On February 25, White House press secretary Karoline Leavitt said that moving forward, the White House – not the independent White House Correspondents’ Association – will determine which outlets are included in the White House press pool, the rotating group of reporters who accompany the president.

- In a statement released February 25, White House Correspondents’ Association President Eugene Daniels said the White House decision “tears at the independence of a free press in the United States. It suggests the government will choose the journalists who cover the president. In a free country, leaders must not be able to choose their own press corps.”

Is the White House violating the First Amendment by barring Associated Press journalists from press events because AP has made the editorial decision not to adopt the phrase Gulf of America?

AP reporters are currently denied entrance to White House events attended by other journalists. On February 12, administration officials said that in their view, entrance to the Oval Office and other such press events at the executive mansion is at the discretion of the White House and that journalists have no legal right to entry.

White House press secretary Karoline Leavitt said the White House is barring AP from accessing these events because the news outlet is spreading “lies,” by not using President Donald Trump’s new name for the former Gulf of Mexico. For its part, the news agency says it “will refer to it by its original name while acknowledging the new name Trump has chosen” because AP is a global news organization, and Gulf of America is not globally recognized. The U.S. Board on Geographic Names has officially changed the name of the Gulf.

Julie Pace, the executive editor of The Associated Press, said Wednesday, in a letter to White House Chief of Staff Susie Wiles, that barring the reporters was “plainly intended to punish the AP for the content of its speech. It is among the most basic tenets for the First Amendment that government cannot retaliate against the public or the press for what they say. This is viewpoint discrimination based on a news organization’s editorial choices and a clear violation of the First Amendment.”

Do journalists have a First Amendment-based right to attend White House press events?

There are no U.S. Supreme Court opinions or lower court decisions as yet that specifically establish such a right, though a few appellate court rulings involve circumstances around the issue. So any court ruling in AP’s favor specifically on White House access would break new First Amendment ground. Legislative action is not likely to settle the matter, given the Constitution’s separation of powers.

AP’s letter contends the ban on its reporters violates a long-established general tenet of First Amendment rights, under which the government at any level cannot restrict the content of speech on any matter or punish a speaker for a viewpoint it dislikes. The White House statement, however, claims only to be acting against the spread of misinformation: the AP’s failure to use the new name for the Gulf.

Another argument journalists may present is that the First Amendment rights of free press and free speech must include a right to freely gather the news.

In 2009, during the Obama administration, the White House attempted to make a U.S. Treasury Department official available to a group of reporters in the network pool except for Fox News, a member of the pool. The administration rescinded its decision after the other networks in the pool said they would not participate if the White House blocked Fox News from the interview.

If AP files a lawsuit challenging the White House position, the courts will need to decide if “content or viewpoint discrimination” is involved, and whether a “right to gather the news” protects news media access to events, press conferences and briefings. Such a ruling likely will set out how and under what conditions media access can be limited in ways that are acceptable under the First Amendment — the size of the briefing room, for example.

The few press room access incidents during Trump’s first term, including a high-profile 2018 dispute involving then-CNN reporter Jim Acosta, were resolved around non-First Amendment considerations: due-process issues, including adherence to established press room rules, or lack of sufficient time for appeal of a decision that reduced or removed access to events and places within the White House.

A 1977 court case involving White House access and due process for reporter Robert Sherrill of The Nation magazine was an underlying factor in resolving the Acosta incident – and may well play a role in the ultimate resolution of the current dispute involving AP.

In Sherrill v. Knight, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the First Amendment limited the right of the White House to arbitrarily deny a press pass to a journalist. The court said because the White House had opened the opportunity for reporters to be credentialed and thus be present at briefings and such, it had obligated itself to establish and follow specific procedures for the issuance and denial of such passes. Sherill had been denied White House credentials several times over a decade. He decided after the appellate ruling not to apply again. The case never reached the Supreme Court.

The three-judge appeals court said, “White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the First Amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons.”

According to a Q&A posted by the White House Correspondents’ Association, "The White House Press Office issues hard passes to journalists who regularly cover the White House. These passes allow access to the White House campus, without having to apply for a temporary pass each day. To get a hard pass, journalists must submit an application to the White House Press Office and undergo a background screening by the Secret Service, which protects the President and is responsible for security at the White House. This process can take several months. The hard pass is not required to cover events or press briefings, but since it allows journalists to enter the complex without permission ahead of time, it’s an important convenience for those who regularly cover the White House."

However, with the White House’s decision to take over management of the White House press pool, this process will likely change.

During press conferences, custom has generally determined which journalist or organization the White House official recognizes first during the question period of press conferences. Recognition after that was at the official’s discretion.

In 2006, the U.S. 4th Circuit Court of Appeals upheld an order by then-Maryland Gov. Robert L. Ehrlich instructing state officials not to speak with two Baltimore Sun journalists. The decision said the ban was just the “rough and tumble” of public debate. But the appeals court’s decision was predicated on the fact that other reporters for the newspaper were not covered by the order and thus could gather and report freely – unlike the current White House decision, which has been applied to an entire organization. The court also noted that the reporters had attended several government events where space was not limited, and the press were generally invited. Ehrlich also exempted from his order any state or federal legally required responses to Freedom of Information requests.

In 1974, speaking at the Yale University Law School, then-Supreme Court Justice Potter Stewart said that “so far as the Constitution goes,” the press is free to “do battle” with the government, but “there is no constitutional right to have access to particular government information, or to require openness from the bureaucracy.” The Constitution, in other words, establishes the contest, but not the resolution, Stewart said.

Who decides who is a journalist?

The First Amendment’s 45 words note that it protects “freedom ... of the press.” A firm definition beyond these words, and the authority to make such a decision, has vexed lawmakers. The concern is that any wording beyond “everyone is a journalist who says they are” either is limiting by naming only certain people, organizations or methods, or grants official recognition that could be withdrawn at the whim of the government.

In the last Congressional term, the PRESS ACT, a proposed shield law providing protections for journalists and confidential sources, used this definition: “A person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

Under this definition, AP’s reporters are no doubt journalists, but this doesn’t necessarily play a decisive part on whether a First Amendment violation has occurred.

Can the government compel a news organization – or anyone – to use specific wording or report only in a certain way?

No. The First Amendment prevents government from requiring speech just as it prevents government from limiting speech.

In 1943, in the Supreme Court decision in West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson wrote that freedom of speech protects the right not to speak as much as it protects the freedom to express ourselves. Jackson wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Courts may be asked to decide if the White House decision violates that “fixed star.”

When do access rules to any governmental event or place violate a journalist’s First Amendment rights?

Journalists have the same First Amendment rights regarding access to government officials – no more and no less – as the rest of us, and such rules are grounded in the concept that the press represents the public in holding the government accountable and reporting on policy, practice and performance, not as a special or separate class. The government has the right to deploy reasonable time, place and manner restrictions – such as the size of the press contingent given the size of a room involved or for demonstrable security purposes, for example.

But multiple court decisions through the years require the government to justify limits of any kind on First Amendment rights. As noted in AP’s letter to the White House, those rulings say officials cannot limit those freedoms because they disagree with the viewpoint or content of what journalists – or anyone else – write, say or post. The nation’s founders provided such strong protection based on the principle of the “marketplace of ideas,” where the test of truth is acceptance by the public, not by government edict.

The Trump White House argues AP’s refusal to use Gulf of America is spreading misinformation. Court decisions regarding speech and free press limits have required proof of "irreversible harm” such as a direct and immediate threat to national security, not simple disagreement or misinformation.

Historically, such constitutional collisions over free press rights involved attempts to silence the press, not the issue of forcing it to say something. The most famous attempt at restraining what a free press may report is New York Times Company v. United States (1971), the Pentagon Papers case in which the Nixon administration tried to bar two newspapers from publishing a classified Pentagon document on U.S. actions in Vietnam. The government’s case didn’t succeed there, the court said, because it failed to show “clear and present danger” to the nation.

What are other First Amendment implications in these incidents?

Congress and the courts have rejected various attempts by the government to license journalists in a manner that requires licenses for lawyers or doctors. The reasons such proposals have not been adopted are similar to those that prevent government from deciding without limit what qualifies as a religion, a political party or “good speech.” The First Amendment puts such things beyond the reach of our elected representatives to eliminate the possibility of censorship or control under the cover of issuing or withdrawing such licenses. That position extends back to colonial times and earlier, when the British crown used licensing power over printers in just that manner.

Also worth noting: The White House may use what President Theodore Roosevelt more than a century ago called its “bully pulpit” to publicly criticize AP’s style decision on the Gulf.

Ultimately, the courts – the traditional forum for determining how far and when First Amendment protections apply – may be the only way to resolve the matters of access or compelled speech. And as also has happened in the nation’s history, the standards, exceptions or limits determined in this relatively focused dispute could well have larger implications on issues as far-ranging as free expression rights for all and what constitutes presidential authority.

Editor's note: This story previously included incorrect information about the role of the White House Correspondents’ Association in the issuance of credentials to enter the White House campus. It has since been updated.