Associated Press v. Taylor Budowich
Filed On: June 6, 2025 (Order) (2025)
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Rule of Law:
Highly restricted presidential spaces are not First Amendment public fora, allowing the White House to consider viewpoint when granting press access, and exclusion from such spaces does not constitute a 'materially adverse action' for a First Amendment retaliation claim.
Facts:
- In January 2025, President Trump issued Executive Order 14172, renaming the 'Gulf of Mexico' to the 'Gulf of America'.
- The Associated Press (AP) acknowledged the renaming in its reporting but continued to use 'Gulf of Mexico' in its Stylebook and other publications.
- In February 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'.
- President Trump and other senior White House officials publicly stated that the AP’s exclusion was due to its continued use of the name 'Gulf of Mexico'.
- The AP was also 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 itself, instead of deferring to the White House Correspondents’ Association.
Procedural Posture:
- The Associated Press (AP) brought suit against White House officials in district court, alleging that its exclusion from press access violated its First Amendment rights through viewpoint discrimination and retaliation.
- The district court held that the AP was likely to succeed on the merits of its First Amendment claims and issued a preliminary injunction.
- The preliminary injunction prohibited White House officials from denying, on the basis of viewpoint, the AP’s access to press events held in the Oval Office, on Air Force One, at the President’s home in Mar-a-Lago, and to events open to all credentialed White House journalists (including the East Room).
- The White House moved for emergency relief in the D.C. Circuit, seeking a stay of the district court’s preliminary injunction pending appeal.
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Issue:
Should the district court's preliminary injunction, which prohibited the White House from denying press access to restricted presidential spaces based on viewpoint, be stayed pending appeal?
Opinions:
Concurring - Rao, Circuit Judge, joined by Katsas, Circuit Judge
Yes, the district court's preliminary injunction should be stayed pending appeal, except as it applies to the East Room. The White House is likely to succeed on the merits because highly restricted presidential spaces such as the Oval Office, Air Force One, and Mar-a-Lago are not First Amendment fora (traditional, designated, or nonpublic). Forum analysis applies only to communicative activities, and the primary activity for journalists in these spaces is observational newsgathering, which is a non-communicative step in the production of speech, lacking the necessary nexus to the forum itself. The mere possibility of communicating with the outside world (e.g., via smartphone) from a government space does not transform it into a forum. Access to these spaces is tightly controlled and highly selective, resembling the President's discretion in choosing who to interview, where viewpoint considerations are permissible. Furthermore, the exclusion of the AP from these limited-access events does not constitute a 'materially adverse action' for a First Amendment retaliation claim. Such a claim typically involves deprivation of property rights or liberty interests (like employment or a license), not the President's choice of who to observe or speak with, which is more akin to wielding the 'bully pulpit.' The government would suffer irreparable harm without a stay, as the injunction impinges on the President’s independence and control over his private workspaces. The public interest also favors protecting the independence of the Executive Branch and its core executive powers. The injunction regarding the East Room, however, should not be stayed, as the identified harms are less clear for that space.
Dissenting - Pillard, Circuit Judge
No, the district court's preliminary injunction should not be stayed pending appeal. The White House’s viewpoint-based exclusion of the AP from the Press Pool violates a fundamental First Amendment principle that the government cannot deny a benefit or exclude from a government-created program based on a participant's viewpoint expressed outside that program. Viewpoint discrimination is particularly harmful. The White House Press Pool, when it convenes in spaces like the Oval Office, is at least a nonpublic forum, as spaces opened for newsgathering and non-governmental communication are consistently treated as such. Even in nonpublic fora, viewpoint discrimination is strictly prohibited. Newsgathering is a communicative activity, as journalists in the pool communicate text and photos in real-time, and the audience does not need to be physically present in the forum. The government has explicitly disavowed that the AP’s Stylebook constitutes government speech, meaning the AP’s references to the 'Gulf of Mexico' are private speech, protected from official viewpoint control. The exclusion of the AP is a 'materially adverse action' for a First Amendment retaliation claim because it is a denial of a tangible benefit based on speech, akin to other government benefits that cannot be conditioned on viewpoint. The government has not demonstrated irreparable harm; presidents have tolerated the presence of unaligned reporters for generations, and the injunction only prevents viewpoint suppression, not legitimate security or space limitations. The public interest strongly favors press freedom and the ability of news organizations to report on public officials without fear of punishment for disfavored viewpoints, which can lead to self-censorship and undermine an informed citizenry.
Analysis:
This case significantly narrows the application of First Amendment public forum doctrine to highly restricted executive branch spaces, distinguishing observational newsgathering from communicative activity and granting the President broad discretion in selecting who may access such areas. It also limits the scope of 'materially adverse action' in First Amendment retaliation claims against the executive concerning access to presidential events. The ruling empowers future administrations to be more selective in granting close-range access to certain journalists, potentially chilling critical reporting from those who fear being excluded from these high-profile events, thereby impacting the public's access to diverse perspectives on presidential actions.
