The Associated Press Wins One

We wrote here about the fact that the Associated Press refused to rename the Gulf of Mexico the Gulf of America in its influential style book, and therefore was denied some limited access to the White House and President Trump. At the linked post, we described the lawsuit that the AP filed, alleging that this treatment violated its First Amendment rights.

U.S. District Court Judge Trevor McFadden, a Trump appointee, has now ruled in the AP’s favor, granting its motion for a preliminary injunction. As a practical matter, I expect his order will end this litigation.

Judge McFadden acknowledges that there is no constitutional right to be present in the Oval Office or ride on Air Force One:

[T]his injunction does not limit the various permissible reasons the Government may have for excluding journalists from limited-access events. It does not mandate that all eligible journalists, or indeed any journalists at all, be given access to the President or nonpublic government spaces. It does not prohibit government officials from freely choosing which journalists to sit down with for interviews or which ones’ questions they answer. And it certainly does not prevent senior officials from publicly expressing their own views.

That said, there is a considerable body of law indicating that government may not retaliate against anyone (journalists are not special) based on their exercise of First Amendment rights:

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.

In this case, there really wasn’t any doubt that this is what happened:

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.

So Judge McFadden’s ruling can’t be considered a surprise. This is what I wrote when the AP filed its complaint:

[I]n general, government entities can’t retaliate against people or companies on account of their exercising First Amendment rights, as the AP certainly was here.

So I expect the AP will win this case.

On the other hand, I credited the administration with not kowtowing to the AP’s inflated self-image:

[T]he White House does not cover itself in glory by using the “Gulf of America” question as the occasion for cracking down on the AP. But, no doubt, the administration wants to make a broader point: the AP’s description of itself as a nonpartisan and universally respected news outlet is more or less on a par with CNN’s claim to be the most trusted name in news. The AP was captured by the Left years ago, and its coverage now reflects left-wing biases on a daily basis. The administration is right to try to strip the veneer of objectivity off the AP, but this probably wasn’t the best way to do it.

I think the White House has made its point. Some of the orders that district court judges have issued against the administration’s actions will make their way to the Supreme Court, but this won’t be one of them.