Associated Press v. Budowich
Not yet reported (2025)
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Rule of Law:
Under the First Amendment, if the government opens its doors to some journalists for newsgathering in a nonpublic forum, it cannot then exclude other journalists from access to those same events based on their viewpoint, nor can it retaliate against them for exercising their freedom of speech.
Facts:
- About two months before the lawsuit, President Donald Trump renamed the Gulf of Mexico the Gulf of America.
- The Associated Press (AP) made an editorial decision not to adopt the new name, continuing to refer to it as the Gulf of Mexico in its Stylebook (an influential writing and editing guide).
- On February 11, White House Press Secretary Karoline Leavitt informed AP Chief White House Correspondent Zeke Miller that, at President Trump’s direction, the AP would be barred from Oval Office press pool events until it revised its Stylebook to use 'Gulf of America'.
- Following this directive, an AP text journalist was barred from an Oval Office executive order signing, and an AP reporter was excluded from a Diplomatic Reception Room press pool event.
- Two days later, the AP was completely barred from three more Oval Office press pool events, and Deputy Chief of Staff Taylor Budowich publicly stated that the AP's 'right to irresponsible and dishonest reporting' did not ensure 'unfettered access to limited spaces'.
- On February 18, White House Chief of Staff Susan Wiles communicated that the AP’s Stylebook had 'misused, and at times weaponized' its influence and that its guidance on the Gulf of America should be appropriately reflected.
- The President publicly stated that the AP 'ha[d] been very, very wrong on the election, on Trump and the treatment of Trump,' and that 'they’re doing us no favors and I’m not doing them any favors,' during a press conference at Mar-a-Lago from which the AP had been barred.
- AP hard pass holders have been systematically and almost completely excluded from large, limited-access events open to the broader White House press corps since February 13, and its photographers have experienced more limited access compared to other hard pass holders.
Procedural Posture:
- The Associated Press (AP) filed suit on February 21, 2025, in the United States District Court for the District of Columbia against Taylor Budowich, White House Deputy Chief of Staff, and other officials, seeking a preliminary injunction.
- The AP filed a motion for a temporary restraining order (TRO).
- The District Court denied the AP's motion for a temporary restraining order, noting differences with prior cases and contested questions about the scope of the ban and its effect on the AP's business.
- The District Court then ordered expedited briefing for a preliminary injunction and allowed both parties to present up to two live witnesses.
- The AP presented two of its most senior hard pass holders as witnesses, while the Government offered no witnesses.
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Issue:
Does the First Amendment prohibit the White House from restricting an accredited news organization's access to press pool events and other limited-access media events within government facilities based on the organization's editorial viewpoint or in retaliation for its protected speech?
Opinions:
Majority - Trevor N. McFadden
Yes, the First Amendment prohibits the White House from restricting an accredited news organization's access to press pool events and other limited-access media events within government facilities based on its editorial viewpoint or in retaliation for its protected speech. The court found that when the Government opens nonpublic fora, such as the Oval Office or the East Room, to some journalists for newsgathering, it cannot then exclude others based on their viewpoint. This principle applies even in nonpublic fora where government control over access is at its zenith, as viewpoint discrimination is 'an egregious form of content discrimination,' citing Rosenberger v. Rector & Visitors of Univ. of Va. (1995). The court rejected the government's arguments that the media's activities were merely 'pre-speech' or analogous to interviews, emphasizing that AP journalists engage in real-time communication and newsgathering, distinguishing it from Price v. Garland (2022). The court also concluded that the Government's actions constituted unlawful retaliation for the AP's protected speech (its editorial decision), noting the significant adverse effects on the AP's reporting quality, competitive standing, and business model, which amounted to more than a 'de minimis inconvenience' found in Baltimore Sun Co. v. Ehrlich (2006). The loss of First Amendment freedoms and significant, unrecoverable economic harm were deemed to constitute irreparable harm, and the public interest was found to favor upholding constitutional rights, as 'enforcement of an unconstitutional law is always contrary to the public interest.'
Analysis:
This decision reinforces the critical role of the First Amendment's press protections, particularly against viewpoint discrimination, even within the executive branch's highly controlled spaces. By applying forum analysis to White House press access, the court limits the government's ability to selectively engage with journalists based on favorable coverage, preventing the creation of a 'friendly press corps.' The ruling broadens the understanding of 'newsgathering' as communicative activity subject to First Amendment protections and sets a precedent against viewpoint discrimination in selective media access, potentially impacting future interactions between government officials and critical media.
