This week, CNN, MS NOW and Politico challenged the Trump White House‘s latest effort to punish the press: restricting them from access to areas like Air Force One and the Oval Office.
Already, a federal judge, Timothy Kelly, has ruled that the president’s wider ban on the three outlets, which barred access to the White House grounds, likely violated their due process and First Amendment rights. But the Trump administration has continued to prohibit CNN, MS NOW and Politico from such things as presidential travel or other pool assignments, the outlets say in the most recent legal filing.
The question of access to the smaller and more exclusive spaces of the presidency is a related but slightly different matter, but one that Theodore Boutrous Jr., the lead attorney representing the news organizations, thinks is essential to challenge. He noted the administration’s other press restrictions, including access to the Pentagon, and expressed concerns that could spread to other areas of the federal government.
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The White House’s position is that access is a privilege and that no journalist has a First Amendment right to these areas. “No person and no journalist has a constitutional right” to the Oval Office, Air Force One or other areas, a White House official said.
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Yet in their lawsuit, CNN, MS NOW and Politico make the argument that the Oval Office and Air Force One have become press areas, given that Trump frequently uses such spaces to take questions from reporters — more than 250 times this term. “They’ve turned those areas into press briefing rooms, and so that, we believe, that triggers First Amendment protection, forbids viewpoint discrimination, forbids unreasonable restrictions on access by journalists,” Boutrous said.
In a separate case, a judge ruled last year in favor of the Associated Press after it was banned from areas like the Oval Office because the news organization did not change references of the Gulf of Mexico to Trump’s preferred name, the Gulf of America. The judge, Trevor McFadden, concluded that “under the First Amendment, if the Government opens its doors to some journalists — be it to the Oval Office, the East Room, or elsewhere — it cannot then shut those doors to other journalists because of their viewpoints.” A D.C. Circuit panel stayed McFadden’s decision as the case is appealed, meaning that the AP ban could resume, but a broader ruling is pending.
Boutrous has represented numerous other media outlets as they challenged press restrictions, including another Trump White House effort in 2018 to revoke the hard pass of then-CNN Chief White House Correspondent Jim Acosta. Kelly, who oversaw that case, also ruled in the network’s favor back then.
Deadline spoke to Boutrous about why the latest case is so important, why Trump’s ban already has had a chilling effect, and what will happen if the president tries to boot the entire press corps from the White House grounds.
DEADLINE: I wanted to start with the latest filing, which was about these news outlets being shut out of places like Air Force One and the Oval Office. Why should the average American care?
THEODORE BOUTROUS JR: Air Force One, the Oval Office and other White House and presidential-related physical spaces belong to the American people. Journalists who are allowed in to cover those those places are doing it for the American people, and they’re serving as the eyes and ears of the American people. So it’s really important for the access that has been allowed for decades to continue without viewpoint discrimination, which is really what’s going on, retaliation against journalists and news organizations that President Trump and his administration don’t like because of what they report. So it’s very important, and we’re glad to be now able to fight that.
DEADLINE: Why was it important to amend the lawsuit? The AP case is still awaiting appeal.
BOUTROUS: We wanted to directly challenge the exclusions from Air Force One — from their vow to exclude CNN and Politico and MS NOW from the Oval Office, their disruption [from] both the print and the television pools. So that’s that’s why we amended, just to update the factual information, all the things that have had occurred since we first filed the complaint, and to make more direct arguments regarding why those exclusions violate both the First Amendment and the Fifth Amendment.
Judge McFadden in the district court in the AP case took evidence, made very detailed, careful findings that places like the Oval Office and Air Force One are forums for First Amendment activity because of the access that the White House has given to journalists. That is up on appeal, and the stay order in that case that allowed that exclusion of the Associated Press to continue. We think it just got it wrong. It’s not precedential. It’s a non-binding order from the panel on the D.C. Circuit who heard the stay. So we haven’t heard from the merits panel. We don’t know what the D.C. Circuit is going to rule. Hopefully, they will affirm Judge McFadden.
DEADLINE: Isn’t it rooted in the idea that that … once you Invite some credentialed media [to the Oval Office], you can’t use viewpoint discrimination to exclude others.
BOUTROUS: Exactly. The credentialing process itself is objective and requires a security clearance and some other criteria be met that are objective, that have nothing to do with the content or viewpoint of reporting. Once that’s allowed — and [Judge Kelly’s] preliminary injunction order agrees with us — that means there can’t be viewpoint discrimination to exclude reporters from those areas where selected reporters are invited in, and that is what exactly is happening in the Oval Office and Air Force One. And yes, there are restrictions in terms of how many reporters can come in. The necessity is to have a smaller group. That we agree with, and that’s not the problem. The problem is the president and the White House excluding reporters because they purportedly don’t like what the reporters are reporting, and that is just viewpoint discrimination, pure and simple. It’s retaliation for speech. That violates the First Amendment. We also made a due process argument too, that this has been going on for decades and decades, and the hard passes embody that access. We laid out the property interest, too, for CNN, which has invested all sorts of funds to be part of the pool. The five networks, for example, share the costs [of the TV pool], and that’s a benefit to the American people. So they’re funding the pool arrangements, which allow the the television network pool to capture images, capture sound, engage in journalism for the benefit of all the news organizations and the American people. [The other members of the TV pool are ABC News, CBS News, Fox News and NBC News.]
DEADLINE: It sounds like a lot of the case hinges on whether the judge determines that areas like Air Force One and the Oval Office are non-public forums. Could you explain what that is?
BOUTROUS: So there are various types of speech-related forums that courts have recognized. The most obvious is a public forum. [For example,] a park where there’s a speakers corner, and it’s really fostered for the public to engage in speech. There’s a limited public forum, which is where the government allows certain types of speech activity. And then there’s what’s called a non-public forum, which is a bit of a misnomer because it’s still a forum for speech. But it really refers to areas that ordinarily aren’t opened up to unrestricted access for the public to engage in speech activities, but the government selectively allows journalists or members of the public access to engage in First Amendment activities. The D.C. Circuit has already held that places like the White House Briefing Room and related press areas in the White House are non-public forums. That triggers First Amendment protection, and that means there cannot be viewpoint discrimination or unreasonable restrictions that are inconsistent with the speech activities imposed on the journalists.
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You are right that the the core questionfor the Oval Office and Air Force One and the pool access to those places is whether they are non-public forums, and we think they clearly are. They have become the dominant form for President Trump himself to engage with reporters to take their questions to parry back and forth with reporters, and reporters are not just standing there like potted plants. They’re asking questions. They’re reporting instantaneously from the Oval Office, from Air Force One, from the tarmac. They’re engaged in news gathering and news reporting. That is a classic non-public forum that triggers First Amendment protection.
DEADLINE: Going back to September 18th, when Trump announced the ban, did that surprise you?
BOUTROUS: It did surprise me. It came completely out of the blue. I think it surprised everybody else who worked in the White House, other than President Trump, because it seemed just so disconnected from any events that had occurred that day or near that day. In fact, when a reporter asked President Trump in the Oval Office what caused this, why did you do this, he said nothing. It’s just cumulative reporting. So I was very surprised. Also surprised because it’s so counterproductive to start singling out journalists, news organizations based on their content and their reporting, and using government power to try to exclude them. It’s not good for the president, it’s not good for the White House or the American public.
DEADLINE: Even though the judge ruled in your favor, has the damage already been done? Do you think it’s already had a chilling effect — maybe not reporters for some of these top networks, but smaller outlets are thinking twice about what they write for worry of losing their hard pass.
BOUTROUS: We believe that harm has been inflicted, the second that ban went into effect, both because it did exclude 78 reporters and three major news organizations for five days or so. That is harm. It’s irreparable harm. The chilling effect is immense. Even though we do have the preliminary injunction, which we’re very grateful for, because reporters from other news organizations know that they could wake up one day and the White House could announce they are banned from the White House. I think that’s the point of it, as the president himself has said he wants reporters to straighten themselves out and report in ways that are more supportive and positive about his administration’s accomplishments. So it really does have harm. Even when we get judicial relief, the White House has continued to try to engage in maneuvers to retaliate against reporters because they don’t like the coverage.
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So it’s really unfortunate, and I’m concerned that this is an example of something that’s going on throughout the the government, that it could become just more prevalent. We’ve seen it in the Pentagon, and it really is harmful to the great tradition in America of allowing public access, including journalist access, to these government buildings and in spaces where the government is doing its business. The public should have the right to to witness that, and that’s what reporters are doing on their behalf.
DEADLINE: In the initial days after the the ban on White House access, other members of the TV pool declined to participate after CNN was excluded. Then the Justice Department has followed up, raising this whole idea that it may be an antitrust violation. What did you think of that?
BOUTROUS: It’s not in any way, shape or form an antitrust issue or a boycott. It’s journalists engaging in First Amendment activity and associating together in a way to exert their First Amendment rights. And I think it’s very important. The pool is still respecting CNN’s position … by refusing to substitute in another network when it’s CNN’s assigned day or days as the pooler. So that is still very important, and we really are grateful for that. And at the same time, launching government investigations into First Amendment activity chills speech and news gathering, and it’s just very, very unfortunate.
DEADLINE: What about the White House’s response [on Wednesday]? They said no person and no journalist has a constitutional right to access the president’s Oval Office, Air Force One or other sensitive and private facilities.
BOUTROUS: That’s just a legally incorrect statement. First of all, we’re not asking for unrestricted access or anything like that, obviously. Second, where the White House has opened up physical spaces to journalists for them to engage in First Amendment activity, that triggers the First Amendment and bars the White House from engaging in viewpoint discrimination. And the First Amendment independently bars the White House from retaliating against speech and press activity that it doesn’t like.
DEADLINE: I hear it said often: Why don’t journalists just walk out when the president attacks them? Why aren’t there more points of solidarity?
BOUTROUS: I think there’s a tension. On the one hand, the journalist’s role is to gather information, and so walking out or not covering news events poses a difficult conundrum. And at the same time, I just don’t want to understate how important it has been that there’s been such solidarity. In our case, the Reporters’ Committee [amicus] brief was joined by 77 news organizations, and so that’s really that’s really meaningful.
DEADLINE: Where do you think this goes? The Trump administration is appealing, and the president has already said he’s thinking of booting the press corps from the West Wing, maybe even from the White House grounds itself. Is that a scenario that is within the realm of possibility if courts continue to rule against him?
BOUTROUS: We have been proceeding under the assumption that anything is possible, that the government is going to try so many different things to thwart independent, fact-based journalism. The appeal is pending. Notably, they didn’t seek to stay, so the reporters are back on the White House grounds, back in the Briefing Room. But then they started excluding our clients from Air Force One and other events. So it seems like they’re going to be relentless. The bottom line is, it’s not good for the president, the presidency, the White House, to go to battle like that. It’s better to speak to reporters, engage with reporters, provide them information, state your case. I hope that we can get back to that standard here in the near future.
DEADLINE: Could the president do that, and say, “Well, we’re going to boot the the press corps from the West Wing.”
BOUTROUS: I think there would be First Amendment issues given the long tradition of access, but it’s never been done before. So it really would be shattering such a long-standing tradition, and it has been a non-public forum. The D.C. Circuit has said that once government property has been opened up as a government forum, ending it and changing it for viewpoint discriminatory reasons raises serious First Amendment questions. So we shall see.
