Digging deep into free-speech precedents in recent American history, a federal appeals panel handed The Associated Press an incremental loss on Friday in its continuing battle with the Trump administration over access by its journalists to cover presidential events.
By a 2-1 margin, judges on the three-judge U.S. Court of Appeals in Washington granted Trump a stay in enforcement of that the administration had improperly punished the AP for the content of its speech — in this case not renaming the Gulf of Mexico to Trump's liking.
The news outlet's access to events in the Oval Office and Air Force One was after the AP said it would continue referring to the Gulf of Mexico in its copy, while noting Trump's wishes that it instead be renamed the Gulf of America.
For decades, a reporter and photographer for the AP — a 179-year-old wire service whose material is sent to thousands of news outlets across the world and carried on its own , reaching billions of people — had been part of a “pool” that covers a president in places where space is limited.
The decision itself was aimed only at whether to continue the stay. But the majority and dissenting opinions together totaled 55 pages and delved deeply into First Amendment precedents and questions about whether places like the Oval Office and Air Force One were, in effect, private spaces.
Trump on the Truth Social platform shortly after the decision: “Big WIN over AP today. They refused to state the facts or the Truth on the GULF OF AMERICA. FAKE NEWS!!!” And White House press secretary Karoline Leavitt, one of the defendants in the AP's lawsuit, after the decision came down that it was a "VICTORY!" and would allow more media to access the president beyond the “failing legacy media.” She added: "And by the way, , it’s still the Gulf of America."
Patrick Maks, an AP spokesman, said that “we are disappointed in the court’s decisions and are reviewing our options.” One possibility is seeking an expedited review of the full case on its merits.
President given wide latitude by court majority
Judges Gregory G. Katsas and Neomi Rao agreed in Friday's ruling with Trump's assertion that it's up to the president to decide who gets into spaces like the Oval Office — and he can take into account the viewpoint of journalists he allows. That's related to AP's assertion that the ban amounts to a legal principle known as “viewpoint discrimination.”
“If the president sits down for an interview with (Fox News') Laura Ingraham, he is not required to do the same with (MSNBC's) Rachel Maddow,” Rao wrote in the opinion. “The First Amendment does not control the president's discretion in choosing with whom to speak or to whom to provide special access.”
In deciding on a stay, the judges considered the likelihood of which side would win the case when Trump's full appeal is taken up, probably not for a few months. In that situation, a different panel of appeals court judges will hear it.
Katsas and Rao were both appointed to the federal court by Trump in his first term. Judge Cornelia T.L. Pillard, who dissented on Friday, was appointed by former President Barack Obama. Pillard wrote that there's no principled basis for exempting the Oval Office from a requirement that a president not engage in viewpoint discrimination.
There's nothing to stop the majority's reasoning from being applied to the press corps as a whole, she wrote. In that case, it's not hard to see future Republican White Houses limiting the press covering them to the likes of Fox News, and Democrats to MSNBC, she wrote.
“More to the point, if the White House were privileged to exclude journalists based on viewpoint, each and every member of the White House press corps would hesitate to publish anything an incumbent administration might dislike,” Pillard wrote.
The bumpiness between Trump and the press is longstanding
Since the original ruling, the White House has installed a rotation system for access to small events. AP photographers are usually included, but text reporters are allowed in much less frequently.
A showed Trump has spoken to the press more often in the first 100 days of his administration than any of his predecessors back to Ronald Reagan. But he's much more likely to speak to a small group of reporters called into the Oval Office than at a formal briefing or press conference — to which AP journalists have been admitted.
Through Leavitt, the White House has opened up to many more conservative news outlets with a friendly attitude toward the president.
In her dissent, Pillard rejected the assertion by the White House and her colleagues that the president suffers damage if news outlets not aligned with his views are permitted into certain restricted spaces to watch the government function. The majority though, insisted that the president, as the head of the executive branch, has wide latitude in that respect.
Wrote Rao: “The Oval Office is the President’s office, over which he has absolute control and discretion to exclude the public or members of the press."
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David Bauder writes about media for the AP. Follow him at and .
