The White House has been wrongly emboldened by Monday’s District Court decision denying a request by the Associated Press to immediately restore its full access to the White House press pool. The White House pulled AP’s access because the news organization continues to employ the term “Gulf of Mexico” rather than Trump’s preferred “Gulf of America.”
In the wake of the decision, press secretary Karoline Leavitt announced a general policy of the White House determining which news outlets can staff the pool. The change breaks with a practice of over 100 years in which the White House Correspondents’ Association determined the press pool membership. New York Times White House correspondent Peter Baker, one of the most eminent reporters in the country, wrote on social media, “Having served as a Moscow correspondent in the early days of Putin’s reign, this reminds me of how the Kremlin took over its own press pool and made sure that only compliant journalists were given access.”
All this was after White House spokesman Stephen Cheung had ridiculed AP’s lawsuit as frivolous. Cheung said that the AP was “clearly suffering from a severe, debilitating case of Trump Derangement Syndrome that has rotted their peanut-sized brains.” He added: “We will defeat them in court just like we crushed their leftist reporters at the ballot box.”
Cheung would do well to tone down his brassiness, not only because it’s jerky, but also because it’s quite likely that he is going to have to eat his words.
In denying the requested relief, Judge Trevor McFadden of the U.S. District Court for the District of Columbia reasoned that the White House had not denied AP access to all press areas completely, just the preferred ones of the Oval Office and Air Force One. Even then, the judge merely declined to order the White House to reinstate the AP while he decides the overall claim, which he indicated has strong support in the controlling case law.
That’s an understatement. In fact, the White House’s punishment of the AP for not genuflecting at Trump’s name change was a raw violation of the most fundamental First Amendment principle—namely, that government can’t tell newspapers or people what to think or say.
To quote the ringing words of Justice Robert Jackson in his 1943 opinion for the majority in West Virginia Board of Education v. Barnette, “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.”
The administration’s characteristically bullying tactics stepped directly on the third rail of First Amendment doctrine. The Supreme Court, as well as the D.C. Court of Appeals that stands above Judge McFadden, have spelled out the governing principle in categorical terms. With narrow exceptions not present here, it is unconstitutional to penalize news organizations based on the content of their publications. The government can’t discriminate based on media organizations’ content, period, full stop.
To frame it in lawyers’ terms, the White House would need a compelling interest to strip the AP of its press pool privileges, and disagreement with the AP’s decision to adhere to “Gulf of Mexico”—i.e., disagreement with a content decision—as a matter of law cannot be a compelling interest. Even though the AP didn’t secure an injunction, the White House is going to lose this case.
I also think it’s likely that the crass treatment of the AP has materially harmed the White House’s chances to get away with the new general policy that Leavitt announced on Monday. That policy would arrogate to the White House the choices for all the members of the press pool, who rotate among them to ensure overall national coverage. As reported by The New York Times, the new policy “would allow President Trump and his aides to handpick which reporters and media personalities were granted the ability to ask him questions and observe his behavior at specific events.”
Leavitt noted that the new policy was to permit “new media” outlets to have a greater role in the pool. “We are going to give the power back to the people who read your papers, who watch your television shows, and who listen to your radio stations,” she crowed.
That populist justification might sound defensible, but here when it’s challenged in court, it will be against the backdrop of the AP shakedown. And it will fall to the White House to explain under a high burden of proof why the open-ended discretion won’t amount to content discrimination in practice. Looking at Trump’s track record with the AP, a court is likely to conclude that the policy is designed to reward outlets that curry favor with the president and parrot his views, while penalizing those who don’t.
In other words, if you want to have access for your readers, you better play ball. That simply can’t fly, not without a revolution in First Amendment principles and doctrine.
Given the rock-solid First Amendment doctrine in play, McFadden’s refusal to order the White House to reinstate the AP’s access up front is hard to fathom. Stripping the Associated Press of its membership in the press pool imposed a real penalty, and one based on content, any way you look at it.
But overall, the country’s District Courts have performed commendably, rising to the challenge of pushing back against Trump’s outlandish power grabs. With the Republicans in Congress browbeaten and indolent, and at least many in the legacy media cowed by Trump’s thuggish tactics, we have to look to the courts to hold the line.
And they have, by and large. In just the last few days, trial-level federal courts have blocked Trump’s federal funding freeze, immigration raids at certain houses of worship, withdrawal of support for certain diversity, equity, and inclusion programs, and more.
Those heartening rulings have to stand up on appeal, including potentially to the U.S. Supreme Court, to effectively repulse Trump’s breathtaking self-aggrandizement. That doesn’t mean that we can look to the District Courts to always get it right. There will be judges who issue wacky rulings and others, far fewer fortunately, who will issue tendentious pro-Trump decisions.
The adjudication of the press pool exclusions will be a major test of the courts and not just district judges like Judge McFadden but the Courts of Appeals, where the issue will be decided. And if those courts, including the Supreme Court, fail to come through and issue lawless rulings upholding Trump’s tyrannical moves, our best hopes were already misplaced.
On the other hand, even if the courts remain the bulwark against executive overreach that the Framers designed them to be, we will still crash and burn as a constitutional democracy if Trump becomes the first president in our history to openly defy them. That means that it will be impossible to lower our guard so long as an inveterate tyrant remains in the White House.
