Judge in AP case says new White House press policy appears fair
A federal judge in D.C. declined on Friday to grant a motion from the Associated Press, which argued that the White House has disobeyed his order last week forcing the administration to stop banning the news organization’s journalists from attending presidential events because of its decision to continue using the name Gulf of Mexico in its news coverage.
District Court Judge Trevor N. McFadden seemed to agree with the government’s position that it has ceased discriminating against news organizations for viewpoint-based reasons—and that the administration should be given more time to prove that it is now putting the AP on the same footing as other news organizations.
On Tuesday, an AP reporter was granted entry to an event in the East Room of the White House. The AP’s photographers were granted entry to the press pool Thursday and Friday, for the first time since mid-February. And on Saturday, a print reporter is scheduled to be part of the press pool, another first since the ban began Feb. 11.
“It seems like one couldn’t say your client is being kept out in the way it was kept out before,” the judge told a lawyer for the AP.
Earlier this week, after the judge’s injunction overturning the ban went into effect, the White House announced a new policy for the press pool that it said was tailored to comply with the order. The new policy eliminated a dedicated spot for wire services but said those outlets would be eligible for selection for one of two print reporter spots.
Most significantly for the AP’s legal case, the White House said that “outlets will be eligible for participation in the Pool, irrespective of the substantive viewpoint expressed by an outlet.”
Despite the AP’s insistence that the policy is discriminatory because it reserves ultimate discretion for pool selection for the White House, McFadden said that he sees the policy as “facially neutral.”
“I’m not inclined to see anything wrong with it,” the judge said. “I’m inclined to presume that this policy is issued in good faith.”
Still, he said he would take action if there’s evidence that the AP is given less access than its fellow news wires.
“The proof is in the pudding,” he said. “If the AP is repeatedly receiving second-class treatment, especially compared to peer wire services, I think that would be pretty strong evidence here that the discrimination is ongoing. … If there was evidence of noncompliance that would be a very serious problem and there could be significant consequences.”
“We’re pleased the judge reinforced his order that the government cannot discriminate against AP based on our viewpoint,” AP spokesperson Lauren Easton said of the judge’s Friday ruling.
McFadden ruled on April 8 that the White House’s policy of excluding the AP for content-based reasons violated the Constitution and must be set aside while its lawsuit plays out.
On Friday, the judge said that he has no interest in “micromanaging” the process by which the White House selects reporters for the press pool.
Both sides were also in court a day earlier, when the White House requested that a three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit undo McFadden’s ruling overturning the ban while the administration’s appeal plays out.
The judges did not rule on the matter, but at least one, D.C. Circuit Court Judge Gregory G. Katsas, seemed to share McFadden’s view that the new White House press policy “is viewpoint-neutral on its face.”
But another judge, Cornelia T.L. Pillard, told a lawyer for the White House that the imposition of a new policy does not negate the fact that the AP was originally excluded.
Pillard also rebuffed the government’s argument that the Oval Office was a private space for the president that the press is not entitled to access. “The Oval Office suddenly seems like a place of private retreat,” she said. “And it’s clearly not.”
And she spoke broadly about the value of the press pool, which reports on the president from close proximity on behalf of the larger press corps. “I find that really impressive that we have a First Amendment that enables that kind of our observation of our chief executive,” she said.
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