On Thursday, a DC Circuit Court Judge pressed a Trump Administration attorney about the potential viewpoint discrimination in barring the Associated Press from the Oval Office.
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00:00So you argue that it doesn't implicate the First Amendment to grant some journalists better access than other journalists.
00:08And, you know, one question I have about that position is that wouldn't that authorize the White House to just rescind the hard passes of journalists whose coverage the president dislikes,
00:24whose viewpoints the president thinks are unflattering.
00:30No, I don't think so, Judge Pillard.
00:32Our position is about access to the president in personal spaces, spaces that are set aside for his personal use.
00:39I take something like personal use in his role as the president.
00:43For sure.
00:44Unfortunately for people who are in high public office, the personal kind of fades away because they do so much.
00:50That's, you know, they're basically reduced to public figures.
00:55Again, no privacy, no security concern.
00:59He wants to abolish the press pool.
01:01I mean, we'll hear from the other side, but I think he would be entitled to do that.
01:06But the question for you is really once there is this, you know, setting up this institution of the press pool,
01:15what is the basis for saying that there can be viewpoint discrimination?
01:21And I guess my specific question is if you're distinguishing between the Oval Office and other areas of the White House
01:29or other places that hard pass holders are welcome, what's the doctrinal basis for that?
01:36What's the Oval Office boundary lines that any precedent we could look to that would place the Oval Office,
01:45including when it's used for public events, public meaning, you know, outside people and governmental activities that would support that line?
01:54Right.
01:54So there's not a precedent I can point to just because I don't think there is a precedent that addresses this specific situation.
02:00But the line that I would propose to the court is to look to what the principal function of the space is.
02:06The Brady Briefing Room is a dedicated press facility.
02:10I'm happy to accept for purposes of this motion, this court held in Atiba,
02:16that that is a non-public forum to which a viewpoint neutrality requirement attaches.
02:22So I think you can put that on one side of the spectrum.
02:26For me, the thing that's on the other side of the spectrum is what I started to answer Judge Katzis about first principles is when the president invites someone for an exclusive interview in the Oval Office.
02:38Everyone agrees he can consider a viewpoint when he does that.
02:41So those are for me sort of the two fixed points in which I try to situate this case.
02:46And I think the question is whether the press pool events in the Oval Office are closer to the exclusive interview or are they closer to the Brady Briefing Room?
02:56And I think they are much closer to the exclusive interview.
02:59I think it is only a modest extension of that idea that we are asking about.
03:03So what's the test?
03:05If I'm writing an opinion and I want to say Oval is different, does it include Air Force One?
03:10Does it include a Mar-a-Lago space?
03:13And how do I know analytically what your test is?
03:17I think the test would be, is it a highly restricted space that is intended for the president's personal use?
03:28At least that, I think, is a rule.
03:29How do I know the use is personal when he might have a head of state sit with him there or be signing executive orders and doing other matters of importance and interest to the government and the public?
03:44That's still his workspace.
03:45And whether you think of it as private or quasi-private or personal or proprietary forum, it's still very distinguishable from something that is set aside specifically as a facility for the press.
04:00But I think the key concept here is one of autonomy, because if you ask the question, why is it the case that the president can engage in viewpoint discrimination when granting an exclusive interview?
04:14I think ultimately the answer is that we all recognize that that is a matter of personal autonomy for the president, who he chooses to reveal his mind to.