Court Weighs White House Press Access in High-Stakes First Amendment Case
Appeals Judges Question Whether President Can Bar Journalists Based on Viewpoint
WASHINGTON — In a closely watched First Amendment case that could reshape presidential press relations, a federal appeals court on Thursday heard arguments over whether the White House can exclude journalists from the press pool based on their viewpoints.
The oral argument in United States v. Associated Press was heard by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. The panel consisted of Judge Cornelia Pillard1, appointed by President Barack Obama; Judge Gregory Katsas2, appointed by President Donald Trump; and Judge Neomi Rao3, also appointed by President Trump.
The case centers on the Associated Press, which was barred from the White House press pool for reportedly using the term "Gulf of Mexico" in its style guide — a term that apparently displeased the president.
"We are so concerned that for two months now the White House has brazenly excluded the AP from opportunities offered to other journalists," argued Charles Tobin, the AP's attorney, calling it clear "viewpoint discrimination under the law."
The White House, represented by Deputy Chief of Staff Mr. MacArthur, contended that the president has autonomy over who enters his "personal spaces" like the Oval Office, suggesting these areas fundamentally differ from dedicated press facilities like the Brady Briefing Room.
"This is not a case in which someone is seeking access to a space," MacArthur told the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. "This is a case in which someone is seeking access primarily to a person."
The judges appeared skeptical of the government's broad claims. Judge Pillard questioned the characterization of the Oval Office as a personal retreat, noting press pools have historically been present even during presidential scandals and crises.
"It's a little unclear to me when you say a right of autonomy," Judge Pillard said. "The Oval Office suddenly seems like a place of silent retreat, and it's clearly not."
Judge Katsus probed whether the court could distinguish between the president's own communications — which all parties agreed could be selective — and journalists' activities of observing and reporting.
The case highlights tensions between presidential discretion and First Amendment protections. A lower court had already issued an injunction requiring the White House to readmit the AP to the press pool, which the administration is seeking to stay pending appeal.
The outcome could establish new boundaries for how administrations interact with the press corps in spaces beyond formal briefing rooms. The court did not indicate when it would rule.
Signs the Court May Be Leaning Toward the Associated Press
The judges appeared skeptical of the government's position in several key moments:
Judge Pillard directly challenged the characterization of the Oval Office as a "personal space," pointing out that it regularly hosts official business and already accommodates press pool members.
The court expressed concern about the breadth of the government's position, which would allow viewpoint discrimination in virtually any White House space outside the Brady Briefing Room.
Judge Pillard questioned the seriousness of the claimed "irreparable harm" to the president, noting press pools have historically operated throughout presidential scandals and crises, including Watergate.
The judges appeared receptive to distinguishing between direct presidential communications (where viewpoint selection is allowed) and journalists' observation activities in the press pool.
The court seemed unconvinced by the vague claims about presidential "autonomy" over who enters spaces like the Oval Office.
Signs the Court May Be Leaning Toward the White House
However, the court did show some receptivity to the government's arguments:
The judges acknowledged difficulties in drawing doctrinal lines between different spaces within the White House complex.
They expressed some concern about courts becoming excessively involved in daily White House press operations and the potential for "micromanaging" decisions.
The court recognized that the President has significant discretion in how he interacts with the press in certain contexts, particularly one-on-one interviews.
The administration's disavowal of the "government speech" doctrine – potentially a stronger argument – suggests a recognition of its weak position. Instead, it relied on claims about presidential autonomy that found little purchase with the judges.
The AP's attorney effectively argued that once the president establishes a press pool system, constitutional principles prevent viewpoint discrimination in selecting participants. His distinctions between one-on-one interviews and established press pools seemed to resonate with the panel.
We should expect a ruling that preserves the president's ability to choose interview subjects while preventing the weaponization of press access to punish unfavorable coverage. Such a balanced approach would serve both presidential and First Amendment interests – and ultimately, the public's right to know.
Judge Cornelia Pillard was appointed by President Barack Obama in 2013. A former Georgetown law professor and civil rights litigator, she is generally viewed as a liberal jurist supportive of regulatory agencies and individual rights claims, particularly in civil liberties and gender equality.
Judge Gregory Katsas was appointed to the D.C. Circuit by President Donald J. Trump in 2017. A former White House legal adviser and clerk to Justice Clarence Thomas, he is considered a staunch conservative, typically deferential to executive authority and skeptical of expansive regulatory power.
Judge Neomi Rao was appointed by President Donald J. Trump in 2019. Formerly head of the Office of Information and Regulatory Affairs, she is known for her libertarian-leaning views and strong skepticism of the administrative state, often favoring limits on agency discretion and expanding presidential authority.