from the bringing-free-speech-back dept
For someone who claims he single-handedly “brought free speech back,” Donald Trump sure spends a lot of time trying to silence speech he doesn’t like. His latest attempt just got demolished by one of his own hand-picked judges, as Judge Trevor McFadden ruled against the administration for its blatantly retaliatory ban of Associated Press reporters who refused to use Trump’s preferred proper nouns for the Gulf of Mexico.
Yes, yes, we know: the Trump administration claims that any judge ruling against the administration is a “far leftist radical Marxist who dreams of Mao” or whatever. But they’re going to have a wee bit of trouble making that argument with McFadden.
He isn’t just a Trump-appointed judge (he is), but he’s one of the Trumpiest judges on the bench, who has repeatedly ruled in ways supportive of Trump. When Trump tried to divert billions of dollars to his stupid Mexican wall project, Congress sued to block him, and McFadden ruled that Congress lacked standing (later overturned). In other words, if anyone was going to rule in favor of the White House here, it was likely Judge McFadden. Instead, he finds for the AP, and rather easily too. He notes, obviously, that the White House has the power to block access, but if it is opening up sessions to the media, it can’t block access on the basis of the media org’s expression:
So while the AP does not have a constitutional right to enter the Oval Office, it does have a right to not be excluded because of its viewpoint. And the AP says that is exactly what is happening….
The Court agrees. Indeed, the Government has been brazen about this. Several high-ranking officials have repeatedly said that they are restricting the AP’s access precisely because of the organization’s viewpoint. See supra Section I.A. Government counsel admitted that the AP was not being chosen for access, despite its “eligibility,” because of its viewpoint…. The Government offers no other plausible explanation for its treatment of the AP. The Constitution forbids viewpoint discrimination, even in a nonpublic forum like the Oval Office.
Judge McFadden goes on to point out that the cases the White House raises in response are obviously inapplicable, and the argument in favor of the AP being discriminated against for its speech is so obvious it’s barely worth highlighting.
In sum, precedent is unequivocal that the press does not enjoy any standalone right of access to highly restricted government locations like the Oval Office. Instead, forum analysis applies because the Government has chosen to open the Oval Office to some reporters for newsgathering. Under forum analysis, the Oval Office is a nonpublic forum, so the Government enjoys wide latitude on its restrictions, if they are viewpoint neutral. The AP presented evidence that the Government has discriminated against it based on its viewpoint, a claim the Government all but concedes. The AP is thus likely to succeed on its claim that its exclusion from eligibility to access the Oval Office violates its First Amendment rights.
The White House will likely appeal, though it’s hard to imagine it being successful (though, these days the Roberts Court would probably dream up some nonsense procedural argument for why Trump can do what he wants, while insisting it’s just ruling narrowly and people shouldn’t read anything more into the ruling).
What’s particularly notable here is how clearly McFadden lays out the constitutional principle at stake: the government can limit press access, but it cannot do so based on what reporters say or how they say it.
So the next time Trump or his supporters claim he’s a champion of free speech while simultaneously trying to punish media outlets for their editorial choices, remember: even his own hand-picked judges recognize this for what it is — unconstitutional censorship dressed up as “free speech advocacy.”
Filed Under: 1st amendment, donald trump, press pool, trevor mcfadden, viewpoint discrimination
Companies: associated press
