[00:00:00] Speaker 05:
Case number 25-5109, Associated Press vs. Taylor Budowich in his official capacity, White House Deputy Chief of Staff at-out balance.

[00:00:10] Speaker 05:
Mr. McArthur for the balance, Mr. Tobin for the appellee.

[00:00:14] Speaker 04:
Good morning, Mr. Ope.

[00:00:17] Speaker 04:
Good afternoon, Mr. McArthur.

[00:00:19] Speaker 03:
Good afternoon, Judge Pillard, and may it please the court.

[00:00:24] Speaker 03:
The district court in this case entered an unprecedented injunction

[00:00:29] Speaker 03:
that dictates the terms on which the White House must grant reporters access to the president in highly restricted spaces intended for the president's personal use, including the Oval Office and Air Force One.

[00:00:44] Speaker 03:
Because that injunction rests on a fundamental misapplication of the First Amendment and raises serious separation of powers concerns, the court should stay the injunction pending appeal.

[00:00:54] Speaker 03:
I want to start out with what I think is the key

[00:00:58] Speaker 03:
legal error on which this injunction rests, which is the district court's assumption that ordinary First Amendment forum analysis applies here as if we were dealing with an airport terminal.

[00:01:13] Speaker 03:
This court in Price, echoing the Supreme Court in Forbes, instructed that First Amendment public forum doctrine should not be extended in a mechanical way

[00:01:23] Speaker 03:
to contexts that differ from those in which the doctrine has traditionally been applied.

[00:01:28] Speaker 03:
But that is exactly what the district court did here.

[00:01:31] Speaker 06:
Mr. MacArthur, what is the best reason for not applying forum analysis?

[00:01:37] Speaker 06:
So it seems to me looking at the Supreme Court's cases, many of the cases that decline to apply forum analysis are cases involving government speech.

[00:01:48] Speaker 06:
But the government here is not arguing that government speech is at issue in the Oval Office.

[00:01:55] Speaker 03:
That's correct.

[00:01:56] Speaker 03:
I think this case does have elements of government speech, but we're not saying that it falls directly under that doctrine.

[00:02:02] Speaker 03:
To my mind, the best reason is because this is not a case in which someone is seeking access to a space.

[00:02:12] Speaker 03:
This is a case in which someone is seeking access primarily to a person.

[00:02:18] Speaker 03:
So if you think about a classic case that's about access to space, take the Supreme Court's decision in Widmar versus Vincent.

[00:02:25] Speaker 03:
That was a case where the Supreme Court held that if a university opens its facilities broadly to student groups, it can't exclude a student group based on their viewpoint.

[00:02:36] Speaker 03:
It must admit all student groups, regardless of viewpoint, to use the facilities for their expressive purposes.

[00:02:43] Speaker 03:
Here, unlike the student groups in Widmar, the AP is not seeking

[00:02:48] Speaker 03:
access to, for example, the Oval Office to use that space for some purpose of its own, independent of the president.

[00:02:57] Speaker 03:
They want access to that space because the president is there.

[00:03:01] Speaker 03:
They want to observe him in that space so they can record and report on what he is doing.

[00:03:07] Speaker 03:
And so I think that makes that fundamentally different than any sort of case in which the Supreme Court has addressed forum analysis.

[00:03:17] Speaker 06:
the finding of the district court that the AP is engaged in speech when it live streams or sends things over the internet to their editors or blogs or post something from the Oval Office directly.

[00:03:32] Speaker 03:
Right, so I think the district court's analysis there rested on a misapplication of this court's decision in price.

[00:03:40] Speaker 03:
The district court read price

[00:03:44] Speaker 03:
to hold that ordinary form analysis applies whenever reporters engage in communicative activity on public property.

[00:03:54] Speaker 03:
That is just not what Price holds.

[00:03:56] Speaker 03:
Price doesn't say anything like that.

[00:03:58] Speaker 03:
Price was about non-communicative activity.

[00:04:02] Speaker 04:
But Price concluded that even regulations on non-communicative

[00:04:09] Speaker 04:
First Amendment activity that the government cannot discriminate based on viewpoint.

[00:04:13] Speaker 04:
And there was no viewpoint discrimination at issue there.

[00:04:16] Speaker 04:
And Judge Henderson's separate concurrence is very emphatic that she joins because she understands the bar against viewpoint-based discrimination, even for non-communicated activity to be unaffected by the court's holdup.

[00:04:29] Speaker 03:
Right, so that was the rule in that context.

[00:04:31] Speaker 03:
I don't think that rule applies in this context.

[00:04:34] Speaker 03:
I think if you tried to apply that rule in this context, it would be,

[00:04:38] Speaker 03:
both over and under inclusive.

[00:04:40] Speaker 03:
If you're going to take the position that anytime someone is invited onto public property and is allowed to text their friends or take pictures and post them on social media, that means you can't engage in any sort of viewpoint discrimination.

[00:04:56] Speaker 03:
I think that's a rule that's simply not going to hold up.

[00:04:59] Speaker 03:
That would mean the president couldn't engage in viewpoint discrimination in deciding who he invites, say, to the State of the Union address.

[00:05:08] Speaker 01:
Go ahead.

[00:05:13] Speaker 01:
There's a lot of case law elaborating on the line between public forum and non-public forum.

[00:05:24] Speaker 01:
I haven't yet found a lot.

[00:05:27] Speaker 01:
And what's your best case, or how should I think about defining the line we need to talk about here, which is

[00:05:36] Speaker 01:
private form and not a form at all because if it's if it's a non-public form you lose.

[00:05:45] Speaker 03:
I think that's right Judge Katz.

[00:05:47] Speaker 03:
I think our best case is obviously the Fourth Circuit's decision in Baltimore Sun, but I actually think we're in sort of a zone where there isn't precedent.

[00:05:56] Speaker 03:
that speaks squarely to the question presented here, which is whether the First Amendment requires viewpoint neutrality when the White House is deciding whether and on what terms reporters are afforded access to the president to observe him in close quarters in personal spaces.

[00:06:13] Speaker 03:
And so I think you have to take this from first principles.

[00:06:18] Speaker 03:
And the first principle where I begin my analysis, and I think it's common ground undisputed, is

[00:06:25] Speaker 03:
that the president may consider viewpoint when deciding whether to grant an interview to a reporter or whether to answer a reporter's questions.

[00:06:37] Speaker 03:
So that's why there's no First Amendment violation when the president invites Laura Ingram to the Oval Office to do an exclusive interview without extending the same invitation to Rachel Maddow.

[00:06:48] Speaker 04:
And I don't take your friends on the other side to be disputing that.

[00:06:55] Speaker 04:
And a lot of the briefing from the government has overtones of, this is a very intimate space.

[00:07:03] Speaker 04:
This is the president.

[00:07:04] Speaker 04:
But there's no claim of a security problem, of a privacy violation.

[00:07:15] Speaker 04:
And it's in the hands of the government whether to authorize a press pool at all.

[00:07:22] Speaker 04:
And I don't take it that there's any dispute that at the time of the events in question,

[00:07:28] Speaker 04:
in this case, there was a press pool in place.

[00:07:32] Speaker 04:
So the notion that somehow the president is being forced to be observed by people he would rather not have there at all is just not this case.

[00:07:44] Speaker 04:
I think there's a dozen people there as a press pool.

[00:07:47] Speaker 04:
So he's agreed to have a press pool at that time, right?

[00:07:52] Speaker 03:
He has agreed to have a press pool, but I think that's begging the question.

[00:07:55] Speaker 03:
The question is whether he can

[00:07:57] Speaker 03:
based on his assessment of reporters' coverage, exclude a news outlet from the press pool.

[00:08:04] Speaker 03:
Right.

[00:08:05] Speaker 04:
And you rely, you say, principally on Baltimore Sun, but to me Baltimore Sun is, and Baltimore Sun says it's about the government's own speech.

[00:08:16] Speaker 04:
It's not applying, it's not saying to particular members of the press

[00:08:20] Speaker 04:
you can't call us, we won't interview you because of your viewpoint.

[00:08:25] Speaker 04:
It's saying to the, you know, I the governor don't want to speak to this person.

[00:08:32] Speaker 04:
I don't want my people who are my mouthpieces to answer the calls either.

[00:08:37] Speaker 04:
And here there is no relief sought that would require the president or anyone in the Oval Office or Air Force One

[00:08:48] Speaker 04:
to answer questions from the Associated Press or speak to the Associated Press.

[00:08:55] Speaker 04:
So that seems to be the principle distinction between Baltimore Sun and your case.

[00:09:01] Speaker 03:
So I don't read Baltimore Sun Judge Pillard to rest on the government speech doctrine.

[00:09:07] Speaker 03:
What I read that case to say is that because there is this mundane and pervasive practice in the journalism industry of government officials either granting or withholding access to information from reporters based on its assessment of their coverage, that that is simply a place in which the First Amendment doesn't intrude.

[00:09:30] Speaker 03:
And that is ultimately what this case is about.

[00:09:32] Speaker 03:
They want access to information about what the president is doing and saying behind those closed doors.

[00:09:40] Speaker 04:
So you argue that it doesn't implicate the First Amendment to grant some journalists better access than other journalists.

[00:09:49] Speaker 04:
And 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, whose viewpoints the president thinks are unflattering,

[00:10:11] Speaker 03:
No, I don't think so, Judge Pillard.

[00:10:12] Speaker 03:
Our position is about access to the president in personal spaces, spaces that are set aside for his personal use.

[00:10:19] Speaker 04:
I take something like- Well, personal use in his role as the president.

[00:10:23] Speaker 03:
For sure.

[00:10:24] Speaker 04:
Unfortunately, for people who are in high public office, the personal kind of fades away because they do so much that's

[00:10:31] Speaker 04:
They're basically reduced to public figures.

[00:10:35] Speaker 04:
Again, no privacy, no security concern.

[00:10:39] Speaker 04:
He wants to abolish the press pool.

[00:10:41] Speaker 04:
I mean, we'll hear from the other side, but I think he would be entitled to do that.

[00:10:46] Speaker 04:
But the question for you is really, once there is this setting up, this institution of the press pool,

[00:10:57] Speaker 04:
What is the basis for saying that there can be viewpoint discrimination?

[00:11:01] Speaker 04:
And I guess my specific question is, if you're distinguishing between the Oval Office and other areas of the White House or other places that hard pass holders are welcome, what's the doctrinal basis for that?

[00:11:16] Speaker 04:
What's the Oval Office boundary line?

[00:11:19] Speaker 04:
Is there any precedent we could look to that would place the Oval Office

[00:11:25] Speaker 04:
including when it's used for public events, public meaning, you know, outside people and governmental activities that would support that line.

[00:11:34] Speaker 03:
Right.

[00:11:34] Speaker 03:
So there's not a precedent I can point to just because I don't think there's a precedent that addresses this specific situation.

[00:11:40] Speaker 03:
But the line that I would propose to the court is to look to what the principal function of the space is.

[00:11:46] Speaker 03:
The Brady briefing room is a dedicated press facility.

[00:11:50] Speaker 03:
I'm happy to accept for purposes of this motion,

[00:11:54] Speaker 03:
this court held in Atiba that that is a non-public forum to which a viewpoint neutrality requirement attaches.

[00:12:02] Speaker 03:
So I think you can put that on one side of the spectrum.

[00:12:06] Speaker 03:
For me, the thing that's on the other side of the spectrum is what I started to answer Judge Katz's about first principles is when the president invites someone for an exclusive interview in the Oval Office, everyone agrees he can consider a viewpoint when he does that.

[00:12:21] Speaker 03:
So those are for me sort of the two fixed points in which I try to situate this case.

[00:12:26] Speaker 03:
And 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?

[00:12:36] Speaker 03:
And I think they are much closer.

[00:12:38] Speaker 03:
to the exclusive interview.

[00:12:39] Speaker 03:
I think it is only a modest extension of that idea that we are asking about.

[00:12:44] Speaker 04:
So what's the test?

[00:12:45] Speaker 04:
If I'm writing an opinion and I want to say Oval is different, does it include Air Force One?

[00:12:50] Speaker 04:
Does it include a Mar-a-Lago space?

[00:12:53] Speaker 04:
And how do I know, analytically, what your test is?

[00:12:57] Speaker 03:
I think the test would be, is it a highly restricted space that is intended for the president's

[00:13:06] Speaker 03:
personal use, at least that I think is a rule.

[00:13:09] Speaker 04:
We 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.

[00:13:24] Speaker 03:
That's still his workspace.

[00:13:26] Speaker 03:
And whether you think of it as private or quasi-private or personal or proprietary forum,

[00:13:34] Speaker 03:
it's still very distinguishable from something that is set aside specifically as a facility for the press.

[00:13:41] Speaker 03:
But I think the key concept here is one of autonomy.

[00:13:45] Speaker 03:
Because if you ask the question, why is it the case that the president can engage in viewpoint discrimination when granting an exclusive interview?

[00:13:55] Speaker 03:
I think ultimately the answer is that we all recognize that that is a matter of personal autonomy

[00:14:01] Speaker 03:
for the president, who he chooses to reveal his mind to.

[00:14:06] Speaker 06:
Mr. MacArthur, so you've you've focused on the space, you know, the type of space, the Oval Office, Air Force One.

[00:14:13] Speaker 06:
What about the nature of the press pool, which itself is a very highly selective, you know, a very small group of all hard pass holders?

[00:14:23] Speaker 06:
And I wonder if one analogy

[00:14:27] Speaker 06:
may not be a perfect analogy, is to Finley and American Library Association.

[00:14:32] Speaker 06:
Because in those cases, the Supreme Court said there's no forum, in part because, you know, in Finley, artists are given NEA grants on a highly selective basis and that's government speech.

[00:14:43] Speaker 06:
They didn't say it's government speech, but they said because it's highly selective, it's not a forum.

[00:14:49] Speaker 03:
I do think that is an additional factor that you should consider here.

[00:14:52] Speaker 06:
So if someone at the NEA or a librarian in American Library Association can exercise discretion in a highly selective way of what books to choose or what internet sites to allow in a library, would that principle extend to the president?

[00:15:10] Speaker 03:
I mean, I think the principle extends to the president in these private spaces where he has an interest in autonomy

[00:15:18] Speaker 04:
So you would apply the same Finley standard to the Oval Office?

[00:15:25] Speaker 03:
Which Finley standard?

[00:15:26] Speaker 04:
Allowing the government to control how it supports speakers the same way as in Finley, to the same degree under the First Amendment?

[00:15:36] Speaker 03:
I don't know if it's to the exact same degree, but I think that strand of thought is implicated here.

[00:15:42] Speaker 04:
The reason I ask is because Finley explicitly says viewpoint-based discrimination is not allowed in that context.

[00:15:50] Speaker 04:
And here, there was a finding that the action was taken for viewpoint reasons.

[00:15:57] Speaker 04:
And I don't see anything in your papers or presentation that chooses to challenge that.

[00:16:03] Speaker 04:
It's clearly erroneous, nor on this record could you.

[00:16:06] Speaker 03:
No, we're not disputing that.

[00:16:09] Speaker 04:
So in Finlay, what is your case that government, whether physical space or services like the second class mailing in Cornelius,

[00:16:25] Speaker 04:
copyright in Matal versus Tan, what is your case that the government can either restrict access to public space or restrict benefits to which someone would otherwise be entitled?

[00:16:42] Speaker 04:
We don't force people to be able to express themselves wherever they want.

[00:16:47] Speaker 04:
But if there's a program to which someone would otherwise be entitled, do you have any case that allows that to be conditioned?

[00:16:54] Speaker 04:
on a recipient's or a person seeking on their.

[00:17:00] Speaker 03:
Again, I don't.

[00:17:01] Speaker 03:
I don't have a case because I don't think there is one that addresses.

[00:17:04] Speaker 04:
There is no case.

[00:17:05] Speaker 03:
There is no case that addresses one way or the other.

[00:17:08] Speaker 04:
Oh, there are many cases that say no.

[00:17:10] Speaker 03:
Now this type of.

[00:17:12] Speaker 03:
And Finley and this is where one of this is one of the places where I think the district court went astray is simply assuming that all

[00:17:24] Speaker 03:
government property is created equal, or even all government spaces in a given government building are created equal.

[00:17:32] Speaker 03:
I think First Amendment analysis should be flexible enough to pick up distinctions between things like the Oval Office and the Brady briefing.

[00:17:40] Speaker 04:
So if I'm applying your test for what is this, why the Oval Office is different, it's that it's a highly restricted space intended for

[00:17:53] Speaker 04:
the president's personal use and not as a press facility that is not dedicated.

[00:17:58] Speaker 04:
That seems like a big so it's really what you're saying is any place in the White House that's not a press facility.

[00:18:05] Speaker 03:
I mean there there there may be other places in the White House that analysis would be different.

[00:18:10] Speaker 03:
You could look at for example the East Room.

[00:18:13] Speaker 03:
I think if you take

[00:18:14] Speaker 03:
You know, the spectrum that I outlined earlier where you've got the Brady Briefing Room on one side, the Oval Office on the other.

[00:18:20] Speaker 03:
I think the East Room is probably in between those two, but I... So how does your test apply to the East Room?

[00:18:26] Speaker 03:
I think the East Room would still fall on my side of the line because... You could exclude people based on their viewpoint.

[00:18:33] Speaker 03:
That's correct.

[00:18:33] Speaker 04:
Part pass holders.

[00:18:35] Speaker 03:
That's correct, because that again is a highly restricted space whose function is

[00:18:41] Speaker 03:
to host events, its function isn't as a press facility.

[00:18:45] Speaker 03:
And let me just give you an example here.

[00:18:47] Speaker 03:
I think it helps to make it concrete.

[00:18:50] Speaker 03:
So one of the events that they are complaining about having been excluded from was a reception in February in honor of Black History Month that was held in the East Room.

[00:19:03] Speaker 03:
Under the rule that they are proposing and under the rule adopted by the court below,

[00:19:09] Speaker 03:
The White House could not exclude from that event a news organization that is avowedly a white supremacist organization, because that would be engaging in viewpoint discrimination.

[00:19:21] Speaker 03:
Similarly, if the president decided to host the prime minister of Israel in the Oval Office, he could not, as long as he admitted other reporters to that event, he could not exclude a news organization that was avowedly anti-Semitic.

[00:19:38] Speaker 03:
That's why when I think about examples like this, the sort of government proprietary function idea does inform this analysis.

[00:19:48] Speaker 03:
There is a time and a place for wide open, no holds barred, all viewpoints represented coverage of the administration.

[00:19:56] Speaker 03:
And the White House has set aside space for that.

[00:19:59] Speaker 03:
That is the Brady briefing room.

[00:20:01] Speaker 03:
They have their 30 hard passes.

[00:20:03] Speaker 04:
I'm not sure.

[00:20:05] Speaker 04:
that you're characterizing the press pool's role, the way the record and the district judge has found it to operate.

[00:20:19] Speaker 04:
It's not a hurly-burly forum with all viewpoints.

[00:20:22] Speaker 04:
I mean, the press members of the pool are, I think the district court found, 20, 30 feet away.

[00:20:30] Speaker 04:
They are not particularly interacting.

[00:20:33] Speaker 04:
They're observing.

[00:20:35] Speaker 04:
important events and they want to observe, but they don't particularly interact.

[00:20:50] Speaker 04:
In fact, the discrimination here was not of a viewpoint that the AP representatives expressed in the forum.

[00:21:03] Speaker 04:
unlike your example of a white supremacist potentially meeting with and shaking hands with honored guests at a Black History Month event?

[00:21:15] Speaker 03:
No, my hypothetical doesn't assume that they would be saying we're doing anything in that situation.

[00:21:19] Speaker 03:
But I do think that is a time and a place in which the White House ought to be able to make that sort of judgment, that they shouldn't be present at this event.

[00:21:28] Speaker 03:
Because I think this is different from

[00:21:30] Speaker 03:
the Brady briefing room in the sense that the White House is trying to get out its own message.

[00:21:36] Speaker 03:
And it should be.

[00:21:37] Speaker 04:
But you've disavowed that this is government speech.

[00:21:40] Speaker 03:
I don't think it's a pure government speech case, but I do think that strand of thought informs how you should think about it here, because in settings like this, I do think they should have greater freedom to curate the message and to select the highly select group of reporters who are going to be in that space

[00:21:59] Speaker 03:
based on the degree to which they think those reporters will help amplify the message that the White House is trying to get out to the public.

[00:22:06] Speaker 06:
Mr. McArthur, you've said that the AP is not engaged in communicative activity when they're inside the Oval Office.

[00:22:14] Speaker 06:
So how should we understand what they're doing?

[00:22:16] Speaker 06:
Should we understand it as news gathering?

[00:22:21] Speaker 03:
If I said that I misspoke,

[00:22:26] Speaker 03:
The district court found that they were engaged in communicative activity because they could send essentially in real time things out like texts and pictures, but I I really don't think anything turns on that analysis here.

[00:22:39] Speaker 03:
I don't think the analysis would be any different if the rule in the overall Oval Office were no Internet.

[00:22:45] Speaker 03:
You can come in, you can observe, you can take notes, you can take pictures, but you can't transmit anything until you leave.

[00:22:52] Speaker 03:
I think if that were the rule, they would be making the exact same claim.

[00:22:54] Speaker 03:
We would be making the exact same defense.

[00:22:57] Speaker 03:
So I don't think anything turns on that.

[00:22:59] Speaker 03:
But I do think we are not restricting their ability to communicate, or at least we're restricting it only in the sense that we are denying them access to information.

[00:23:08] Speaker 06:
So that's what I'm wondering, though.

[00:23:10] Speaker 06:
So putting aside the access to the internet, if they're just observing,

[00:23:15] Speaker 06:
there's probably no communication and then they're doing something like news gathering is that activity does that activity have any first amendment protections.

[00:23:25] Speaker 03:
Yes, I think that is what discord and price talked about as sort of a pre communicative step in the creation of speech, I think it does have.

[00:23:34] Speaker 06:
Uh, it is First Amendment protected activity to agree with the government's position here.

[00:23:41] Speaker 06:
Would we have to say that news gathering is not covered by the First Amendment?

[00:23:47] Speaker 03:
Not at all.

[00:23:48] Speaker 03:
Not at all.

[00:23:48] Speaker 03:
I think you would have to say that in these particular circumstances where you're talking about access to a space that's in the president's immediate periphery that

[00:24:00] Speaker 03:
his interest in autonomy, just like in who he reveals his mind to override any First Amendment interest in access to him to observe him up close personally and record what he is doing and saying so that you can later report it.

[00:24:16] Speaker 03:
They can't force the president to answer their questions just because.

[00:24:20] Speaker 04:
And they're not claiming that they have any right to force the president to answer their questions.

[00:24:24] Speaker 03:
That's right.

[00:24:24] Speaker 04:
That they have any right without

[00:24:26] Speaker 04:
very exhaustive security examination, or that they have any right to say anything disruptive or distract him from his work, or that they have any right as the press pool as a whole to be invited at moments when the president wants to concentrate on his writing and his work.

[00:24:46] Speaker 04:
So it's a little unclear to me when you say a right of autonomy.

[00:24:55] Speaker 04:
the Oval Office suddenly seems like a place of silent retreat.

[00:25:02] Speaker 04:
And it's clearly not.

[00:25:05] Speaker 04:
He has a private study.

[00:25:06] Speaker 04:
And as I said, he can exclude people when he thinks his autonomy so requires people as a whole, but not based on viewpoint.

[00:25:16] Speaker 04:
So I guess I'm trying to understand the connection between the claimed prerogative

[00:25:23] Speaker 04:
to do not exclusion of humans or members of the press, but of people because of their viewpoint.

[00:25:33] Speaker 04:
How is that more challenging to the president's autonomy than just the ability to say nobody today at all?

[00:25:45] Speaker 03:
Because the president has speech and associational rights of his own, right?

[00:25:52] Speaker 03:
And so if you're looking at

[00:25:54] Speaker 03:
Can the president decline to answer any questions from the AP?

[00:25:58] Speaker 03:
Because he disagrees with the AP's editorial choices.

[00:26:02] Speaker 03:
Everyone agrees the answer to that is yes.

[00:26:04] Speaker 03:
The question is why?

[00:26:05] Speaker 03:
I think the answer is because the president has autonomy over his mind and who he chooses to reveal that information to.

[00:26:15] Speaker 04:
That is absolutely- Is the same thing true of a mayor and a governor?

[00:26:21] Speaker 03:
I think the same thing would be true of other government officials.

[00:26:25] Speaker 03:
Cabinet secretaries.

[00:26:30] Speaker 03:
On this point, yes, when you're talking about what's in their mind and whether they have to reveal that to someone or who they admit.

[00:26:38] Speaker 04:
Nobody's saying that the president has to reveal anything he doesn't want to reveal.

[00:26:44] Speaker 04:
It's only about whether somebody is allowed, when the president decides we're gonna have a press poll, allowed, notwithstanding viewpoint, to be a participant in that at the times when the president chooses to have the press poll present.

[00:27:00] Speaker 03:
What I'm trying to explain, Judge Pillard, apparently not very successfully, is that it's the same principle.

[00:27:05] Speaker 03:
The same principle that says the president can consider viewpoint in deciding to whom he discloses his mind

[00:27:13] Speaker 03:
should apply to this adjacent situation of whom he admits to his immediate periphery in private, personal, proprietary, whatever adjective you want to use to describe it, those sorts of spaces.

[00:27:27] Speaker 03:
He has associational rights just like he has speech rights.

[00:27:32] Speaker 01:
A couple of questions.

[00:27:37] Speaker 01:
Why did you

[00:27:40] Speaker 01:
Resist the government speech Caseline which seems to me very helpful for you this notion of autonomy.

[00:27:48] Speaker 01:
I mean you're sort of talking about autonomy and associational rights because You don't want to say what the most important interest here is which is the president's speech projected through journalists to the public

[00:28:03] Speaker 03:
Well, I think the projected through journalists is probably takes this out of at least the heartland of the government speech doctrine.

[00:28:12] Speaker 03:
That's what the district court said below is that the communicative activity that the reporters are engaging in in the Oval Office is their own speech, not the president's speech.

[00:28:22] Speaker 03:
And I think by and large, that's correct.

[00:28:25] Speaker 01:
But the reason the president has the reason why this feels different

[00:28:34] Speaker 01:
is because of the president's communicative interests, at least to me.

[00:28:40] Speaker 03:
Yes.

[00:28:40] Speaker 03:
And I do think that that is something that should inform the court's analysis here.

[00:28:46] Speaker 03:
But I also think the nature of the space and the president's interest in retaining control over whom he admits to those private spaces has to inform the analysis here.

[00:28:57] Speaker 03:
Because if you look at the Brady Room, again, the court held that's non-public forum.

[00:29:03] Speaker 03:
can't viewpoint discriminate there.

[00:29:05] Speaker 03:
So if the president went over to the Brady room, I don't think he could now say all of you here are now my organs to get my message out to the public and therefore I'm going to exclude anyone from this room who doesn't share my viewpoints.

[00:29:17] Speaker 03:
the nature of the space matters and helps inform where, when and where it is permissible to engage in that kind of discrimination to help get out the message that the president wants out to the American people.

[00:29:31] Speaker 06:
The nature of the space is also connected to the idea that the president and the Oval Office and Air Force One is engaging in government speech because the Oval Office, Air Force One are not

[00:29:43] Speaker 06:
places where other parties, journalists, or other people have any expectation to be able to speak themselves?

[00:29:52] Speaker 03:
I think that is true.

[00:29:53] Speaker 03:
I mean, the president, whenever he speaks, obviously he's engaging in government speech.

[00:30:00] Speaker 03:
But if you're talking just about sort of pre-communicative activity of observing what he says and does on Air Force One, I think that is

[00:30:13] Speaker 03:
a different sort of analysis that isn't pure government speech.

[00:30:17] Speaker 01:
Tell me what's wrong with this way of thinking about it, focusing on speakers rather than places or maybe incidentally addressing places, but really focusing on the speakers.

[00:30:34] Speaker 01:
There are two kinds of communication going on.

[00:30:41] Speaker 01:
in the White House press pool event.

[00:30:46] Speaker 01:
One is communication between the president and the journalists, and one is between journalists and members of the public.

[00:31:00] Speaker 01:
And you can sort of separate them and say, okay, the president communicating to journalists with you 100%,

[00:31:09] Speaker 01:
But the district court took care of that problem, making crystal clear, president doesn't have to engage with any journalist he doesn't want to engage with.

[00:31:21] Speaker 01:
Absolute discretion to pick who gets to ask questions and how he answers them viewpoint-based, like whatever he wants.

[00:31:31] Speaker 01:
And then the other level, the other level of communication is the journalists are,

[00:31:40] Speaker 01:
sort of their passive observers, and then they are broadcasting out that feels a little less intrusive.

[00:31:54] Speaker 01:
You know, sort of like if we admit press pool to this argument, they have no expectation of speaking.

[00:32:05] Speaker 01:
You're here to observe and and

[00:32:09] Speaker 01:
talk to the public.

[00:32:10] Speaker 01:
I mean, that's communicative.

[00:32:12] Speaker 01:
That's more communicative than the stuff in Price was.

[00:32:16] Speaker 01:
And that just doesn't implicate the president's speech interests in the same way.

[00:32:24] Speaker 03:
So I think I agree with that.

[00:32:25] Speaker 03:
Just catch us as to that step.

[00:32:27] Speaker 03:
Once they've got the information, once they've got the information and they are deciding to communicate it out to the public, they are engaged in their own speech.

[00:32:37] Speaker 03:
But there is the intermediate step of whether they are going to be granted access to that information in the first place.

[00:32:45] Speaker 03:
That's what we were talking about here, because what we're talking about is not admitting them to the space and then preventing them from communicating.

[00:32:53] Speaker 03:
The question is whether they get admitted to the space in the first place so that they can collect and gather that information.

[00:32:59] Speaker 03:
And that is, I do think, very much the analysis of the Fourth Circuit in Baltimore Sun.

[00:33:05] Speaker 03:
where the court said it is a routine aspect of this industry that government officials grant or withhold access to non-public information based on their assessment of reporter's coverage.

[00:33:21] Speaker 04:
So in a way, maybe another way that might be useful for us to think about your theory is through the lens of irreparable harm.

[00:33:36] Speaker 04:
It sounds like you're saying there's sort of an autonomy harm to the president.

[00:33:41] Speaker 04:
Is that a psychic harm?

[00:33:46] Speaker 04:
How would we find such a thing, such a phenomenon in law or in fact?

[00:33:55] Speaker 04:
Is it a factual question?

[00:33:58] Speaker 04:
I don't see anything in the case about

[00:34:01] Speaker 04:
association or affiliation, but it sounds like you're, that is sort of a conceptual kernel of your argument today.

[00:34:13] Speaker 03:
I think it is, and I think it is an injury to the autonomy of the president.

[00:34:18] Speaker 03:
The same way I think you would experience it as an injury to your own autonomy if you were being forced to admit people to your chambers who you didn't want to have there.

[00:34:26] Speaker 04:
Oh, no.

[00:34:27] Speaker 04:
Nobody's forcing him to have a press pool at all.

[00:34:32] Speaker 03:
Right, but he's many.

[00:34:33] Speaker 04:
If I wanted to have a press poll, sometimes we have groups that come and visit us, and they come and sit and talk to us.

[00:34:40] Speaker 04:
And if we invite them in, I mean, I assume many people have visited me in my official capacity, whose viewpoints I don't share, possibly whose viewpoints I abhor.

[00:34:55] Speaker 03:
So yeah, I'm trying to get, I suppose the question is whether it would be an injury to your autonomy if you were compelled to do that over your objection.

[00:35:03] Speaker 03:
Just because you admitted one group of one particular ideological persuasion, now you're going to be compelled to admit to your private chambers some other group whose ideology you abhor and who you do not want there.

[00:35:17] Speaker 03:
I think you would experience that as an injury to your autonomy.

[00:35:20] Speaker 03:
And that is the exact kind of injury that we are talking about here for the president.

[00:35:25] Speaker 03:
Having to admit people to his personal spaces to observe him up close and personal.

[00:35:32] Speaker 06:
So what though, the district court's decision and injunction

[00:35:39] Speaker 06:
It's quite explicit that it leaves open many different avenues for the White House to control who is in the press pool.

[00:35:48] Speaker 06:
Says it cannot be based on viewpoint, but recognizes that the press pool is highly selective and there could be many different reasons for

[00:35:56] Speaker 06:
including a particular journalist or excluding them.

[00:36:03] Speaker 06:
So in that context where the White House still has substantial discretion over who is part of the press pool, what's the irreparable harm in those circumstances?

[00:36:14] Speaker 03:
I think the irreparable harm is the inability to exclude people that the president wants to exclude because- Based on viewpoint.

[00:36:21] Speaker 03:
because he disagrees with their viewpoint or their coverage and doesn't want them in his personal spaces observing.

[00:36:28] Speaker 04:
Just to be clear about the facts here.

[00:36:31] Speaker 04:
It wasn't even the AP's coverage.

[00:36:34] Speaker 04:
It was because their style book used words that the president didn't like to describe a certain body of water.

[00:36:45] Speaker 03:
It was based on their viewpoint, and I don't know that the president has publicly explained why that particular editorial choice bothers him, but it could well be that he doesn't trust this organization to report on him fairly because of that.

[00:36:59] Speaker 03:
And so that's not the news outlet that he wants to be in the Oval Office when he does have some interest in using those events in his personal workspace to get his message out to the American people.

[00:37:12] Speaker 04:
strikes me and I think it was your brief that talks about the hurly-burly of the press and the press should be able to take it and it is a bit of a two-way street you know that their president is in a position in which there's a certain amount of hurly-burly and he is gradually required and the White House the White House has created a space for that again the AP still has their front row seat

[00:37:34] Speaker 03:
in the Brady briefing room.

[00:37:36] Speaker 03:
We are talking about different sorts of spaces where I do think the White House has a greater interest in curating the coverage to make sure that the message it wants to get out is being amplified by the highly select group of reporters that are being admitted to those highly restricted spaces.

[00:37:54] Speaker 03:
There is one other idea that we haven't touched on here.

[00:37:56] Speaker 03:
I mentioned it at the outset.

[00:37:58] Speaker 01:
Before you move on, on selectivity, I think it's something like

[00:38:03] Speaker 01:
20 reporters in the oval, 13 on Air Force One, something like that.

[00:38:09] Speaker 01:
But that's selected from a pool of eligible reporters.

[00:38:15] Speaker 01:
So how large is that?

[00:38:17] Speaker 03:
I haven't seen a number in the record.

[00:38:19] Speaker 03:
What I've seen is that it's one to 2% of the overall White House correspondent pool.

[00:38:26] Speaker 03:
So it is a highly select group.

[00:38:29] Speaker 01:
I mean, 100?

[00:38:31] Speaker 01:
Let's say it's 100.

[00:38:36] Speaker 01:
Should we think of this as only 10 or 15 get to go in at any one time because the physical space is small, but really it's a special level of access provided to 100.

[00:38:52] Speaker 01:
And 100 to me starts to sound more like

[00:38:59] Speaker 01:
the East Room event than like the one-on-one interview?

[00:39:03] Speaker 03:
So I think of it more in terms of the small group of 20 that's there at a time, but I don't only think that that distinction will matter.

[00:39:12] Speaker 03:
Again, I think the East Room falls on our side of the line because that's not a dedicated press facility.

[00:39:18] Speaker 03:
It's there to host events for the event's own sake.

[00:39:22] Speaker 03:
The press coverage that happens there is incidental to the primary function of that space.

[00:39:27] Speaker 03:
The one idea, I know I'm...

[00:39:29] Speaker 03:
over time.

[00:39:30] Speaker 03:
But the one idea I did want to touch on here is in response to your question, Judge Piller, about I think much of the analysis about the interests of a government official in autonomy do apply to government officials.

[00:39:44] Speaker 03:
But I do think there is an extra layer in this case because we are talking about the President of the United States.

[00:39:50] Speaker 03:
And there are serious separation of powers concerns that I do think should inform how you think about this, because

[00:39:57] Speaker 03:
A judicial decree forcing the president to admit individuals into the kinds of spaces we're talking about here does give us a lack of the respect due to a coordinate branch of government.

[00:40:10] Speaker 03:
And it invites litigation that will often turn on intrusive inquiries into the president's state of mind.

[00:40:18] Speaker 03:
And if you want a preview of what's coming, if you uphold the district court's decision, you need look no further

[00:40:25] Speaker 03:
Then the motion to enforce that the AP filed yesterday after this injunction had been enforced for 2 days.

[00:40:33] Speaker 03:
They've now gone to the district court and said that we're in violation.

[00:40:37] Speaker 03:
They say they are continuing to be excluded based on their viewpoint.

[00:40:42] Speaker 03:
We say, no, it wasn't your turn.

[00:40:44] Speaker 03:
We put you back in the rotation, but it wasn't your turn on those two days.

[00:40:48] Speaker 03:
And those are the kinds of disputes that courts are going to be called upon to wade into.

[00:40:53] Speaker 03:
And this injunction doesn't do anything more than impose the sorts of obligations that the district court thinks that the First Amendment imposes of its own force.

[00:41:03] Speaker 03:
So you don't need an injunction to bring these kinds of claims

[00:41:06] Speaker 03:
You can come straight into court and start micromanaging on a daily basis decisions that the White House is making about who gets access to the Oval Office.

[00:41:15] Speaker 04:
So, Mr. McCarthy, you talked about the government's interest in having its message conveyed through the press.

[00:41:23] Speaker 04:
And I just want to have a clear understanding of how you think that might affect the hard passes.

[00:41:31] Speaker 04:
My understanding is that the broader press corps has maybe 1,000 members.

[00:41:36] Speaker 04:
And they are on a more rotating basis, you know, allowed to RSVP for and get invited to certain things.

[00:41:45] Speaker 04:
And I assume they're all allowed to come to, you know, Q and A's in the Brady Rum.

[00:41:52] Speaker 04:
But under your theory, also the president's prerogative to issue or restrict issue press passes based on the nature of the

[00:42:06] Speaker 04:
pass coverage.

[00:42:07] Speaker 03:
I don't think anything in our position here touches the hard passes.

[00:42:11] Speaker 04:
No, it doesn't touch the hard passes.

[00:42:12] Speaker 04:
No viewpoint based wedge in there.

[00:42:17] Speaker 03:
Yes, we accept that the

[00:42:18] Speaker 03:
dedicated press facilities in the White House, including the Brady briefing room, are, as this court held in ATIBA, non-public forums to which a viewpoint neutrality requirement attaches.

[00:42:29] Speaker 03:
And therefore, I don't think you could exclude any reporters from that space based on their viewpoints.

[00:42:35] Speaker 04:
What about invitations?

[00:42:37] Speaker 04:
You mentioned, you know, topical events and whether people could be screened, not based on security, but based on viewpoint.

[00:42:48] Speaker 04:
So is it your position that the president also has the ability, for example, RSVP events, you know, who's going to come in and heads of state are coming and meeting with the president and he's allowing a certain number of members of the press corps to be present viewpoint based screening permissible there or not?

[00:43:08] Speaker 03:
I think so.

[00:43:08] Speaker 03:
If we're on the same, if we're on the same wavelength here, because what I have in my mind when you describe that as something like the East room event,

[00:43:16] Speaker 03:
that was held to commemorate Black History Month.

[00:43:19] Speaker 03:
I do think that sort of event, where it's by invitation, and they admit members of the press pool, is a time and a space where they can- Or a meeting with President Zelensky or- Correct.

[00:43:30] Speaker 04:
Or any other head of state.

[00:43:33] Speaker 03:
Those could be viewpoint-based in your- Yes, if they're being held in these sorts of spaces.

[00:43:42] Speaker 03:
I see that I am well over my 13 minutes.

[00:43:45] Speaker 03:
There are no further questions.

[00:43:58] Speaker 04:
Good afternoon, Mr Tobin.

[00:43:59] Speaker 04:
You may proceed when you're ready.

[00:44:01] Speaker 00:
Good afternoon, Your Honor.

[00:44:02] Speaker 00:
Your Honors, thank you for the opportunity for the argument today.

[00:44:05] Speaker 00:
My name is Charles Tobin with the law firm of Ballard Spar.

[00:44:08] Speaker 00:
With me at council table is my co-counsel, Sasha Dudding.

[00:44:12] Speaker 00:
Your Honors, I wanted to just

[00:44:15] Speaker 00:
mention a quote that I had come across in preparing for this case.

[00:44:20] Speaker 00:
It's from Mark Twain.

[00:44:21] Speaker 00:
He said that there are only two forces that can carry light to all corners of the globe, the sun and the heavens and the Associated Press down here.

[00:44:31] Speaker 00:
I think that's a point way to explain why we are so concerned that for two months now the White House has brazenly excluded the AP from opportunities offered to other journalists in the White House just because the AP's expression, as you all were discussing with my friend government counsel,

[00:44:52] Speaker 00:
It's all about the adherence to the designation of Gulf of Mexico that the President does not like and expressly wants to control and that the trial court correctly termed viewpoint discrimination under the law.

[00:45:05] Speaker 00:
Your Honours, the District Court found that exclusion violates the First Amendment and causes the wire service irreparable harm and it did the balancing of the interests and it appropriately and very narrowly tailored

[00:45:15] Speaker 00:
an injunction the order simply rescinds orders the White House to rescind viewpoint discrimination violation of the First Amendment in providing the opportunities to the Associated Press offer to others in the pool or others invited to RSP if you can respond to the point that Mr. MacArthur just made at the end which is if this court were to recognize that president cannot discriminate on abuse basis of viewpoint for the press

[00:45:45] Speaker 06:
But then the president reconstitutes the press pool for some other non viewpoint based reason.

[00:45:51] Speaker 06:
Doesn't that just open up the White House to retext claims on the basis of viewpoint and lead to a problem where the courts are going to be micromanaging the decisions of the White House as to who can be part of the press

[00:46:07] Speaker 00:
Your honor, the answer is going to be the lawyer's dodge.

[00:46:09] Speaker 00:
It depends on the facts.

[00:46:11] Speaker 00:
It will depend on what the White House articulates as the reasons for the new selection criteria.

[00:46:17] Speaker 01:
If it's security... It's already happened.

[00:46:21] Speaker 01:
They've issued a new policy.

[00:46:23] Speaker 01:
It's viewpoint neutral.

[00:46:25] Speaker 01:
on its face and you're running into district court to enforce this injunction.

[00:46:31] Speaker 00:
But we were told we have a varied in the injunction in the motion to enforce papers.

[00:46:37] Speaker 00:
And I might add the judge very quickly said a hearing for tomorrow.

[00:46:41] Speaker 00:
So prima facie, whatever we put in those papers was of enough concern to have a busy judge.

[00:46:48] Speaker 00:
But I'm happy.

[00:46:50] Speaker 06:
We're not going to constantly be micromanaging.

[00:46:53] Speaker 00:
And I'm happy to answer your question, Your Honor.

[00:46:55] Speaker 00:
What the White House did in the new policy, just to go there first, is it said that the overarching rule is that the President retains absolute discretion over Oval Office access to the Oval Office.

[00:47:08] Speaker 00:
That's exactly the type of issue that was before the judge previously, and the judge said the President's discretion is capped in by the First Amendment.

[00:47:16] Speaker 00:
So that answers the main concern that we're going to argue tomorrow.

[00:47:20] Speaker 00:
with the judge in terms of other criteria.

[00:47:23] Speaker 01:
That was a poke in the eye.

[00:47:24] Speaker 01:
No doubt about it, but the new policy on its face is viewpoint neutral.

[00:47:32] Speaker 00:
But I would disagree with that with all due respect, Your Honor, because if it says

[00:47:37] Speaker 00:
Here's all the viewpoint mutual reasons.

[00:47:42] Speaker 00:
But the president reserved absolute discretion and within absolute discretion has to live viewpoint discrimination or else there is no discretion.

[00:47:50] Speaker 06:
So then a court needs to say the president does not have absolute discretion.

[00:47:55] Speaker 00:
Court needs to say the president's discretion is cabined by the Constitution, an issue that's obviously playing out in many different cases in this courthouse today.

[00:48:04] Speaker 00:
President of the United States does not have absolute discretion to violate the Constitution, and the district court found after two hearings, one of them all day,

[00:48:13] Speaker 00:
listening to two associated press witnesses, the White House choosing not to bring a witness to explain their criteria after finding there was a contradiction between the White House's written explanations in the declarations.

[00:48:27] Speaker 00:
One declaration said that we were eligible for admission.

[00:48:30] Speaker 00:
The other declaration said we would not have admission.

[00:48:33] Speaker 00:
Council was asked by Judge McFadden, what do you mean by eligibility?

[00:48:37] Speaker 00:
And his answer was, well, I'm eligible to play for the Washington Nationals, but they're never going to accept me to play.

[00:48:43] Speaker 00:
And the president is not going to let the Associated Press in because of its viewpoint.

[00:48:47] Speaker 00:
And so I'm sorry, Your Honor.

[00:48:49] Speaker 01:
Suppose it's the same policy without that poke in the eye sentence at the end.

[00:48:55] Speaker 01:
We're just eliminating the wire service, replacing the wire service seat with something else.

[00:49:02] Speaker 00:
Your Honor, there's also discretion allowed for the White House Press Secretary.

[00:49:08] Speaker 00:
And with respect, Your Honor, these are fair questions for me to be asked, but they're questions that we should be resolving in the district court because this particular policy.

[00:49:18] Speaker 01:
Day to day, the district judge is going to be probing the motive of

[00:49:25] Speaker 01:
senior White House aides, if not the president himself.

[00:49:30] Speaker 00:
If a White House aide tells one of these reporters, you're not getting in because of viewpoint discrimination, I would suggest that they have every right to come to the court and to say that we have a constitutional problem here that the court needs to address.

[00:49:46] Speaker 00:
If you have the appropriate evidence, Your Honor, you should bring a claim in court.

[00:49:50] Speaker 00:
Everybody has the right to do that.

[00:49:52] Speaker 00:
We did not willy-nilly bring a claim here.

[00:49:55] Speaker 00:
We put before the court abundant evidence, undisputed, largely undisputed, two witnesses all day filled with testimony.

[00:50:05] Speaker 00:
And the court came to the correct conclusion because the White House has conceded that this is all about trying to control the message, trying to control the viewpoint, if you will, of the associated progress.

[00:50:15] Speaker 01:
There are a series of presidential immunity

[00:50:22] Speaker 01:
not directly controlling here, but built into every one of those doctrines is that courts can't probe the motivation of the president because that would be debilitating and inappropriate.

[00:50:42] Speaker 01:
That's what has to happen here.

[00:50:46] Speaker 00:
Well, if that becomes the rule, then the doctrine of viewpoint discrimination will no longer apply to the president.

[00:50:53] Speaker 00:
And we know clearly that it does apply to at least the White House.

[00:50:56] Speaker 00:
I might add we didn't sue the president because of the carve out in, I believe it was the Karam case where I think it was Judge Taylor said, one of the judges said you can't sue the president.

[00:51:07] Speaker 00:
So the injunction was not enforceable as to the president.

[00:51:11] Speaker 00:
but it was enforceable as to the White House.

[00:51:13] Speaker 00:
So as to the White House- Far about as broadly or narrowly, I mean- But the case did apply to the White House, and it did say, Karam says it, Ataiba is the most recent case that says it, Sherrill is the progenitor case that says it, Price doesn't say this to the White House, but it says it in general.

[00:51:32] Speaker 00:
It stands for the proposition that viewpoint discrimination, even in the White House.

[00:51:37] Speaker 01:
It says courts will police viewpoint discrimination for something like the Brady Room.

[00:51:45] Speaker 00:
Well, it's very different.

[00:51:48] Speaker 00:
What makes it difficult is this president's bold position that he can discriminate because of viewpoint.

[00:51:55] Speaker 01:
I take your point on that.

[00:52:00] Speaker 01:
And

[00:52:01] Speaker 01:
You know, the first iteration of this case was very easy factually because White House was quite open about that.

[00:52:11] Speaker 01:
But the legal principle that the district court has established here is not in any obvious way, cabinable to cases with smoking gun direct evidence.

[00:52:24] Speaker 00:
Well, it's cabinable to cases where the

[00:52:26] Speaker 00:
The president exercises viewpoint discrimination or reserves to himself the right to exercise viewpoint discrimination if he were to declare it tomorrow.

[00:52:36] Speaker 00:
that I'm going to exclude any press that doesn't report that the tariff policy of the United States is wonderful.

[00:52:43] Speaker 00:
That's viewpoint discrimination.

[00:52:46] Speaker 00:
And any journalist who's excluded on that basis should and would have a right to bring a claim.

[00:52:52] Speaker 06:
I mean, it's one thing to just talk about viewpoint discrimination generally, but we do have to focus specifically on what type of activity is occurring.

[00:53:01] Speaker 06:
the AP concedes that if the president were to schedule a one on one interview or even a small group interview, he could, he could choose journalists based on viewpoint.

[00:53:11] Speaker 00:
That's correct.

[00:53:12] Speaker 06:
Right.

[00:53:12] Speaker 06:
And so, I mean, the real question, you know, as we were discussing with your friend on the other side is where this falls along that continuum, right?

[00:53:20] Speaker 06:
This is not the Oval Office is I think, but obviously not the Brady Press Room.

[00:53:26] Speaker 06:
And the press poll is not exactly like a one on one interview because

[00:53:30] Speaker 06:
members of the press were not interacting with the president.

[00:53:32] Speaker 06:
But I think you have to say why this is more like the Brady Press Room than like a one-on-one interview.

[00:53:38] Speaker 06:
And when you're talking about 10 or 12 journalists who are in the president's office or in the president's airplane or in his home in Mar-a-Lago, why is that not more like a one-on-one interview?

[00:53:51] Speaker 00:
Because your honor, it is part of an established system.

[00:53:54] Speaker 00:
I think you asked the question, what about the pool itself?

[00:53:57] Speaker 00:
There is a system established called the pool.

[00:54:00] Speaker 00:
The White House has decided to accede and now control that system, take over the selection pool.

[00:54:06] Speaker 00:
Once you have a system

[00:54:07] Speaker 00:
called the pool or whatever you want to call it.

[00:54:10] Speaker 00:
And you invite on a daily basis members of that pool to come in and observe and in real time report out the news that's happening in the White House.

[00:54:20] Speaker 00:
And you're not interacting with the president.

[00:54:21] Speaker 00:
The purpose is not for an interview, whether it's one on one or two on one and three on one.

[00:54:26] Speaker 00:
It's to observe and report.

[00:54:27] Speaker 00:
That's exactly where the distinction lies.

[00:54:32] Speaker 00:
And that's what the district court found.

[00:54:33] Speaker 00:
The court itself asked questions of my witnesses, the AP's witnesses, in order to draw out that distinction.

[00:54:40] Speaker 06:
But the pool doesn't have any kind of mythical status.

[00:54:44] Speaker 06:
I mean, presumably, presidents have a press pool for their own purposes, for their own reasons, in terms of how they want to get their message out to the American public.

[00:54:54] Speaker 06:
And presumably, a White House president could constitute the press pool in any way that they thought was useful.

[00:55:02] Speaker 00:
Your honor, I would just point the court to the other settings which a press pool and the words press pool appear in all of the decision have been found to be bound by the Sherrill doctrine, the hard pass holder doctrine, which is there is no viewpoint discrimination, only allowance for neutral, reasonable criteria.

[00:55:19] Speaker 06:
The pool is just a narrow subset of hard pass holders.

[00:55:22] Speaker 00:
That's correct.

[00:55:23] Speaker 06:
I mean, a very small set, right?

[00:55:25] Speaker 06:
I mean, there were some 1,500 hard pass holders, something like that.

[00:55:28] Speaker 06:
1,300, your honor.

[00:55:31] Speaker 06:
fraction, 1% of that in the Oval Office.

[00:55:35] Speaker 00:
Right, Your Honor, but they are selected on it, have been selected and are still selected on the new policy ostensibly on a rotating basis by entity, not by reporter.

[00:55:44] Speaker 00:
And Your Honor, that's the system that- And not by viewpoint.

[00:55:48] Speaker 00:
And not by viewpoint.

[00:55:49] Speaker 00:
Well, ostensibly not by viewpoint, but that's an issue that the District Court found

[00:55:55] Speaker 00:
against the government on in the previous iteration policy.

[00:55:58] Speaker 04:
Let me ask you about just sort of the underlying doctrine that we're working with here.

[00:56:04] Speaker 04:
We have traditional public fora, we have limited or designated public fora, we have non-public fora and the district judge in this case held that the Oval Office in Air Force One and the relevant part of Mar-a-Lago is a non-public

[00:56:20] Speaker 04:
public forum.

[00:56:21] Speaker 04:
Are there some types of government property or some uses of government property that are not forums at all?

[00:56:31] Speaker 04:
And how do we think about that for First Amendment purposes?

[00:56:36] Speaker 00:
Yes, I think Judge McFadden answered that in denying the stay.

[00:56:40] Speaker 00:
that the extended stay that was requested.

[00:56:42] Speaker 00:
So, for example, the president has a private office, a smaller office off of the Oval Office that he retreats to.

[00:56:50] Speaker 00:
The court found that that is not, is separate and distinct from the Oval Office when it's used for press spray purposes.

[00:56:59] Speaker 00:
The president's suite in Air Force One.

[00:57:02] Speaker 04:
I guess I'm still trying to figure out what work the forum, even non-public forum designation is doing

[00:57:10] Speaker 04:
Because there are broader doctrines about people who would otherwise be eligible, cannot be excluded, denied, deprived of the thing for which they're otherwise

[00:57:28] Speaker 04:
you know, eligible based on viewpoint.

[00:57:31] Speaker 04:
And I'm just trying to understand, like, presumably that does not apply if the president wants to convene a meeting of, you know, even if it's gonna be in the, let's say he uses the press room as the space, but he wants to have a meeting of experts on the criminal justice system and he really only wants people who are oriented to reducing mass incarceration.

[00:57:55] Speaker 04:
Can the president in that kind of situation, you know, it's public space, invite people to the meeting based on viewpoint?

[00:58:05] Speaker 04:
Or, I mean, there's language in some of the cases like Cornelius and Price that say identity of the speaker and the content related to the event, but seem to suggest that viewpoint discrimination will be barred, but I find that hard to,

[00:58:23] Speaker 04:
to accept that that would be true.

[00:58:24] Speaker 04:
What's your view?

[00:58:26] Speaker 04:
Help us out on that.

[00:58:28] Speaker 00:
Well, if it were a designated pooled event, if it were, you know... No, no, no.

[00:58:32] Speaker 04:
I'm not talking about the press pool.

[00:58:33] Speaker 04:
I'm talking about a meeting.

[00:58:35] Speaker 04:
And if the president wants to convene a meeting, he can invite people to the meeting based on viewpoint.

[00:58:41] Speaker 00:
He can invite Fox, I'll just pick as a logical... He can invite professors, I'm not even talking about press.

[00:58:48] Speaker 00:
That's correct.

[00:58:49] Speaker 04:
People who are specialists, who are corporate leaders, who are professors, who are engineers, whatever.

[00:58:55] Speaker 00:
Certainly.

[00:58:55] Speaker 04:
So that kind of convening, it can be based on viewpoint.

[00:58:58] Speaker 04:
And that's because it's not even a non-public forum, it's not a forum at all.

[00:59:02] Speaker 00:
It's it is not a public form in the sense that it is not a place open up for First Amendment protected activity.

[00:59:11] Speaker 00:
The reason the Oval Office is a natural extension.

[00:59:13] Speaker 01:
Not even a private.

[00:59:16] Speaker 01:
Even a non public.

[00:59:19] Speaker 00:
At that point.

[00:59:21] Speaker 00:
It's not a form.

[00:59:23] Speaker 00:
It is a non-public form in the sense that there's no activity.

[00:59:27] Speaker 00:
It's non-public.

[00:59:29] Speaker 01:
It's subject to a prohibition on viewpoint discrimination.

[00:59:34] Speaker 01:
So he wants to have an event in the cabinet room and invite.

[00:59:40] Speaker 01:
He has some policy in mind that he cares a lot about, and he wants to invite

[00:59:51] Speaker 01:
members of the public and press who support the policy and and only people on that side of the issue.

[00:59:58] Speaker 01:
Can you do that?

[01:00:00] Speaker 00:
Not if it's not if it is selecting from among the hard pass holders are part of the press pool in the White House.

[01:00:07] Speaker 00:
If he is inviting and I was I thought that's what Judge Proler was asking me.

[01:00:12] Speaker 00:
He's inviting one favorite journalist in to sit down and witness, you know, a cabinet

[01:00:17] Speaker 00:
or something like that.

[01:00:19] Speaker 00:
I would say that's probably closer to an individual selective interview than it is a press pool event.

[01:00:25] Speaker 01:
No, he's inviting, he wants to develop the case for, I don't know, higher tariffs.

[01:00:36] Speaker 01:
And he invites union leaders who support higher tariffs, academics who support higher tariffs, public intellectuals,

[01:00:48] Speaker 01:
and they're doing an event, they're doing a give and take in the cabinet room, totally viewpoint based.

[01:00:57] Speaker 01:
Is that okay?

[01:00:58] Speaker 00:
Yes, I mean, that's the development of discussion among leaders in developing policy.

[01:01:06] Speaker 01:
It's not a communicative activity.

[01:01:09] Speaker 01:
But then, so those are the people at the table, but then they want five, he wants five press people

[01:01:17] Speaker 01:
kind of on the chairs and back at the edge, but he can't discriminate based on viewpoint or the reporters who are witnesses.

[01:01:30] Speaker 00:
If he goes out, if the White House press secretary were to go out and tap people on the shoulder and say, the president wants to talk to you, come on into the Oval Office, and it's a small group of people, I think he's perfectly entitled to do that.

[01:01:44] Speaker 00:
Once you designate it,

[01:01:46] Speaker 00:
event, once you have a system, which we discussed a minute ago, of rotation, that's where the entire notion of viewpoint discrimination becomes an anathema.

[01:01:56] Speaker 00:
And the court got there by the analysis, by analogizing this to the non-public forum setting.

[01:02:01] Speaker 00:
I personally think it's closer to a limited public forum in that setting.

[01:02:05] Speaker 06:
Is there a real rotation in the pool?

[01:02:06] Speaker 06:
I mean, the AP is concerned that it used to always be part of the press pool.

[01:02:11] Speaker 06:
It's not rotation.

[01:02:12] Speaker 06:
I mean, you're making it sound as though, I mean, if they were in the natural rotation, then they would

[01:02:17] Speaker 06:
of hard pass holders or organizations, they would rarely be in the Oval.

[01:02:22] Speaker 00:
Well, we were we were happy to have the White House recognize the unique role that the AP holds both historically and in the First Amendment.

[01:02:31] Speaker 00:
No, but I am trying to answer your question, Your Honor.

[01:02:34] Speaker 00:
We were happy to have that.

[01:02:35] Speaker 00:
I would not stand here and argue that we have a right to be the line leader.

[01:02:39] Speaker 00:
And I said that to Judge McFadden.

[01:02:41] Speaker 00:
We were pleased that we were, but now we're completely shut out.

[01:02:45] Speaker 00:
We're not even in the rotation.

[01:02:47] Speaker 00:
At least we weren't in the record before the district board.

[01:02:50] Speaker 00:
I'm not convinced that we are yet.

[01:02:52] Speaker 00:
But that's an issue I want to work out with the district.

[01:02:54] Speaker 06:
Also, I'm interested from AP's perspective, what is the communicative activity that AP or any other member of the press pool is engaged in when they are watching or observing events in the Oval Office or Air Force?

[01:03:11] Speaker 00:
Sure, I have two answers to that, one's in the law and one's in the facts.

[01:03:15] Speaker 00:
Under the law, the Sherrill Doctrine, which this court, the district court did apply in this case, the Sherrill Doctrine is that the present public

[01:03:25] Speaker 00:
have an interest protected by the First Amendment in ensuring that restrictions on news gathering be no more arduous than necessary.

[01:03:33] Speaker 00:
So that was a question you asked my friend on the other side earlier.

[01:03:37] Speaker 00:
What is this news gathering all about and what are the definitions?

[01:03:40] Speaker 00:
The law in this circuit protects news gathering.

[01:03:43] Speaker 00:
News gathering means both developing the information and taking it in and communicating it out.

[01:03:49] Speaker 06:
So granted, news gathering has some First Amendment protection, but is it

[01:03:53] Speaker 06:
communicative activity, news gathering itself.

[01:03:56] Speaker 00:
And that's where the fact, that's where the facts themselves come in.

[01:03:59] Speaker 00:
Because the clear record in this case is that what's going on from the White House is live reporting both by photograph and by text and dot com means the reporters for the AP are reporting live from the White House.

[01:04:13] Speaker 00:
We all get push notifications from the AP on our phones.

[01:04:16] Speaker 06:
So does that turn any government space in which a reporter or anyone else, and I think Judge Casas asked a similar question earlier,

[01:04:23] Speaker 06:
You know, any space, any government space where someone has a cell phone and post something on their blog or, you know, whatever, it makes any kind of communication to the outside world, then that's a non-public forum.

[01:04:36] Speaker 06:
Does the internet transform all physical spaces into non-public fora?

[01:04:41] Speaker 00:
I would narrow the limiting principle by saying that anywhere the government opens up for news gathering, certainly if there's an affirmative act, the answer has to be yes.

[01:04:52] Speaker 00:
And here there's the affirmative act of inviting the press pool into the Oval Office to observe and report out in real time the news.

[01:05:00] Speaker 00:
And that makes it a protected First Amendment.

[01:05:02] Speaker 06:
So if you open the forum, not necessarily specifically for communication, but for news gathering,

[01:05:08] Speaker 06:
And part of that includes accessing the internet, not communicating in the forum directly.

[01:05:15] Speaker 00:
Not communicating with the people staging the event.

[01:05:18] Speaker 06:
Well, because the traditional all-fora analysis stems from the traditional public forum, parks, sidewalks, things like that, where the forum and the speech are intimately connected.

[01:05:29] Speaker 06:
But where communication exists only on the internet or through electronic transmissions of some type,

[01:05:37] Speaker 06:
There's no connection between that type of electronic transmission and, say, the Oval Office in the way there is between a sidewalk outside the Supreme Court where someone might want to picket the Supreme Court because they don't like a particular decision.

[01:05:53] Speaker 06:
So there's no connection.

[01:05:55] Speaker 06:
In all the fora analysis, there's always a connection between the communication that people are aiming for and the type of fora.

[01:06:04] Speaker 06:
A charity wants to be part of the capital campaign so they can get their message out to government workers in Cornelius or something like that.

[01:06:11] Speaker 06:
All the traditional public fora cases are like this.

[01:06:14] Speaker 06:
So here, there's not the same connection.

[01:06:17] Speaker 00:
But that was the rule, that was the same, broadly speaking, set of facts in the Sheryl V. Knight case, which is access to the White House in order to be able to report information, to gather the news.

[01:06:29] Speaker 00:
And the circuit did find that there was, and reaffirmed it in Ataiba and in Karam, that there was a First Amendment interest in that news gathering activity.

[01:06:38] Speaker 06:
News gathering in the press room.

[01:06:40] Speaker 00:
Didn't say that.

[01:06:41] Speaker 00:
And Karam arose out of the Rose Garden.

[01:06:46] Speaker 00:
Itaber rose out of the Brady Press Room.

[01:06:48] Speaker 00:
Sherrill rose out of getting into the White House at all.

[01:06:51] Speaker 00:
And the same doctrine was applied across all three.

[01:06:54] Speaker 06:
And there is no- I think those are identical to the president himself inviting a small group of journalists.

[01:07:01] Speaker 00:
Inviting a designated pool in which is supposed to be a rotating system, if you're going to agree with us that it has to be non-discriminatory, non-viewpoint discriminatory.

[01:07:12] Speaker 00:
Yes, Your Honor.

[01:07:12] Speaker 04:
So that seems the strongest.

[01:07:16] Speaker 04:
part of your case, there was a pool, there has been a pool, and whether you look at the Knight Institute, dates back to 1881, or you look at the National Journal Declaration, certainly filed in the district court, dates back to the 40s, there has been a press pool, and it has been a non-viewpoint-based opportunity for the press.

[01:07:44] Speaker 04:
If the facts of this case had never occurred and the president had just decided he wants to abolish the press poll entirely, let's just not have anybody coming into the Oval, any members of the press on Air Force One.

[01:08:01] Speaker 04:
First Amendment problem or no?

[01:08:04] Speaker 00:
I would need to understand a little more facts and namely I need to know what is replaced with and I need to know no reporters in those places because the president feels his autonomy would be hampered.

[01:08:19] Speaker 04:
He doesn't want to associate with journalists who he finds pesky.

[01:08:24] Speaker 00:
I think it would be a tougher argument under Zemo versus Rusk to say that the president couldn't exclude the press entirely from the Oval Office or even the White House.

[01:08:33] Speaker 00:
I want to know a little more about the facts.

[01:08:36] Speaker 00:
I want to study up on that a little more, but my answer standing at the podium is that the

[01:08:42] Speaker 00:
district court got the limitations correct, that the president can't be ordered to speak to somebody, the president can't be ordered to hold a press event.

[01:08:52] Speaker 00:
But once he decides to do those things in a pool setting, in an established pool setting, he can't do it in a viewpoint discriminatory way.

[01:09:00] Speaker 00:
And I just wanted to just point the court out to four other settings

[01:09:05] Speaker 00:
where the district courts, the federal district courts, have each said that a pool setting in areas that may be counterintuitive to all of us, embedding with the military central command in Gulf War I, Nation Magazine versus DOD in the Southern District of New York, the press pool had to be selected based on non-viewpoint discriminatory reasons.

[01:09:28] Speaker 00:
Flights to Guantanamo Bay, where the press were invited and there were only 20 seats.

[01:09:33] Speaker 00:
That was in this courthouse, Getty Images, News Services versus Department of Defense.

[01:09:38] Speaker 00:
Those 20 seats had to be selected on viewpoint neutral criteria.

[01:09:43] Speaker 00:
The Congressional Press Galleries, also in this court.

[01:09:46] Speaker 00:
Consumers Union of the U.S.

[01:09:48] Speaker 00:
versus the Periodicals Correspondents Association.

[01:09:51] Speaker 00:
Also, I said in the district court here.

[01:09:54] Speaker 00:
And then the White House pool itself was adjudicated by the Northern District of Georgia in 1981 in CNN versus ABC Inc.

[01:10:03] Speaker 00:
as a forum in which you could not have discrimination based on viewpoint when they were trying to exclude all of the television stations from the pool.

[01:10:13] Speaker 00:
Those are four areas.

[01:10:16] Speaker 00:
And the fourth one actually supports very directly the district court's reasoning in this case.

[01:10:21] Speaker 00:
But those are areas where you might have some real qualms if you're looking at this fresh until you start to apply the notion that viewpoint discrimination is anathema.

[01:10:32] Speaker 00:
And once you open up an area to a group of people, this is basic to us, basic fundamental American doctrine, Your Honors.

[01:10:39] Speaker 00:
And we would ask the court at least not to stay.

[01:10:43] Speaker 00:
We'll obviously have a more fulsome argument if the government proceeds with its appeal.

[01:10:48] Speaker 00:
We do have issues to sort out with the district court.

[01:10:51] Speaker 00:
But in terms of a stay, they have not sufficiently established the grounds that they need.

[01:10:56] Speaker 04:
So, Mr. Trevett, oh, go ahead.

[01:10:59] Speaker 01:
So you concede the one-on-one interview, right?

[01:11:03] Speaker 01:
So why is it then, what is the doctrinal basis for saying the president wants to open up the Oval Office to bring in a journalist

[01:11:20] Speaker 01:
to project his views.

[01:11:24] Speaker 01:
If it's one-on-one, he can do that on a viewpoint-based criteria.

[01:11:29] Speaker 00:
That's Baltimore Sun.

[01:11:30] Speaker 00:
Why can he do that?

[01:11:32] Speaker 00:
That's Baltimore Sun versus Ehrlich, which was my case, Your Honor.

[01:11:35] Speaker 00:
I had the privilege of arguing that case in the Fourth Circuit.

[01:11:38] Speaker 00:
In Baltimore Sun versus Ehrlich, the court held that there was no First Amendment right to demand a one-on-one interview with the president.

[01:11:46] Speaker 00:
Therefore, the president could be selective.

[01:11:48] Speaker 01:
How about five-on?

[01:11:50] Speaker 00:
If he goes out and taps them on the shoulder and says, come on into my office, that was part of the fact pattern in Baltimore Sun versus Ehrlich, press secretary for Governor Ehrlich did exactly that with one press gaggle briefing in a small conference room.

[01:12:08] Speaker 00:
This is fundamentally different, Your Honor, and we think that Judge

[01:12:13] Speaker 00:
McFadden got it absolutely right in that this is- Because he's starting from the full pool and then subtracting rather than- Starting from the full pool and then discriminating based on viewpoint.

[01:12:24] Speaker 01:
Rather than just adding, if he just goes down the list, and he keeps a list of reporters he likes and doesn't, and goes down and, all right, there are 20 seats in the Oval, I'm calling in my favorite 20, and not surprisingly, that's a viewpoint-based judgment.

[01:12:43] Speaker 00:
That would be a violation under Cheryl versus Knight and all of the other cases.

[01:12:47] Speaker 00:
To do it as a way of narrowing the pool, if he did it just by calling people up.

[01:12:53] Speaker 01:
No, no, no.

[01:12:53] Speaker 01:
He's just picking his favorite.

[01:12:57] Speaker 00:
Then he's not excluding people.

[01:12:59] Speaker 00:
He's inviting.

[01:12:59] Speaker 01:
One, three, or 20.

[01:13:01] Speaker 00:
Then he's not excluding people.

[01:13:02] Speaker 00:
He's inviting people.

[01:13:03] Speaker 00:
And the doc.

[01:13:05] Speaker 01:
He can invite his favorite 20 journalists into the Oval on a viewpoint basis.

[01:13:11] Speaker 00:
Yes, Your Honor, so long as he is not staging it as a pool event, he can do individual events like that.

[01:13:18] Speaker 00:
And Your Honor, I can't do any better.

[01:13:19] Speaker 01:
It seems awfully close to what's happening here.

[01:13:25] Speaker 00:
I can point to, just as persuasive authority, the State Democracy Defenders brief that was filed in the district court as an amicus brief, 23 former office holders, some of them former press secretaries to the White House, many of them in the current president's party, one of them, Judge Ludwig from the Fourth Circuit, who was on the panel that voted against the Baltimore Sun and Ehrlich

[01:13:50] Speaker 00:
And all of them have drawn a sharp distinction between, as Judge McFadden did, based on the record evidence of my reporter's testimony, that there is a fundamental distinction in the way the White House operates between holding a pool spray type of event and inviting reporters in one by one for individual interviews.

[01:14:11] Speaker 01:
Let me ask you two more just to try to pin down what's doing work and what's not.

[01:14:16] Speaker 01:
So same analysis.

[01:14:18] Speaker 01:
trying to take out the access dimension from the speak with the president dimension.

[01:14:24] Speaker 01:
So he's picking journalists who will be not allowed to speak with him, but just follow him around and observe him in order to write articles.

[01:14:38] Speaker 01:
He can do that on a view.

[01:14:40] Speaker 01:
He can pick his favorite one or two or five reporters based on viewpoint.

[01:14:46] Speaker 00:
He can pick, uh, same, same, same.

[01:14:49] Speaker 00:
Yeah, sure.

[01:14:49] Speaker 00:
He can pick a couple of people and say, follow me for the day.

[01:14:53] Speaker 01:
Absolutely.

[01:14:53] Speaker 01:
And another one tests whether retaliation works differently from forum.

[01:15:00] Speaker 01:
Um, he has a one-on-one scheduled with a favorite reporter.

[01:15:07] Speaker 01:
That reporter then says something the president doesn't like and the president cancels, cancels the interview because of that, because of the statement.

[01:15:18] Speaker 01:
Is that, is that permissible?

[01:15:22] Speaker 01:
Or is that, you know, it's a viewpoint-based retaliation, but in the president's intimate association with journalists.

[01:15:31] Speaker 00:
The retaliation has to be an incursion into a First Amendment right held by the plaintiff in the case.

[01:15:37] Speaker 00:
In the case that you just posited, I don't think the journalist had a First Amendment right to be invited to the one-on-one interview.

[01:15:45] Speaker 00:
And so the president's cancellation based on not liking what the journalist said doesn't incur into their First Amendment right.

[01:15:52] Speaker 01:
If you just mechanistically apply the elements of

[01:15:59] Speaker 01:
First Amendment retaliation law or unconstitutional conditions law, it doesn't matter that he didn't have that right in the first place.

[01:16:09] Speaker 01:
If he's being denied a benefit for a bad reason, that's unlawful retaliation.

[01:16:17] Speaker 01:
And yet, we still have this instinct, like of course he can cancel that interview.

[01:16:22] Speaker 00:
And my instinct is the same as yours.

[01:16:25] Speaker 00:
But I come at it from the facts of this case, First Amendment standpoint.

[01:16:30] Speaker 00:
The First Amendment applies here because there is a public forum that is designated from time to time for pool opportunity.

[01:16:37] Speaker 00:
I'm sorry, a government office that is designated a non-public forum from time to time

[01:16:43] Speaker 00:
for press opportunities on a rotating basis by the pool.

[01:16:47] Speaker 00:
A First Amendment right attaches to those opportunities, number one.

[01:16:51] Speaker 00:
Number two, my reporters are part of a press pool who are being denied opportunities for retaliatory reasons, and that attaches their first, that attacks their First Amendment right to gather news under Sheryl versus Knight in a setting in which they possess a First Amendment right.

[01:17:08] Speaker 00:
That's what distinguishes it from the one-on-one interviews.

[01:17:11] Speaker 00:
And I would urge the court to look no further than the State Democracy Defender's brief, just end my reporter's testimony for the factual record of why those two fundamentally different things.

[01:17:23] Speaker 04:
So thank you.

[01:17:23] Speaker 00:
Thank you, Your Honor.

[01:17:26] Speaker 04:
Thank you.

[01:17:26] Speaker 00:
Thank you very much.

[01:17:30] Speaker 04:
Mr. MacArthur has reserved two minutes for rebuttal.

[01:17:38] Speaker 03:
Just a few points.

[01:17:39] Speaker 03:
To your question, Judge Pillard, about the long-standing existence of the pool.

[01:17:44] Speaker 03:
The thing about forums that are created by the government is they can be clawed back.

[01:17:49] Speaker 03:
President Trump is under no obligation to run the press pool the way his predecessors did or even the way he himself did in his first administration.

[01:17:56] Speaker 03:
If he wanted to reconstitute the press pool as his 20 favorite reporters, which I heard

[01:18:02] Speaker 03:
my friend on the other side to concede, he can do that.

[01:18:05] Speaker 03:
And I think that concedes the case because if he can make it 20 that he most prefers, most prefers based on their viewpoints, he can certainly exclude one based on viewpoint.

[01:18:17] Speaker 03:
To the line of questions about where this case fits in public forum existing case law, it doesn't because there is no case

[01:18:26] Speaker 03:
addressing a space like this one in the president's immediate periphery in a highly restricted space.

[01:18:32] Speaker 03:
This space is not like a polling place.

[01:18:34] Speaker 03:
It's not like an airport terminal.

[01:18:36] Speaker 04:
Just to be clear, this space, you're talking about the Oval Office, but also Air Force One and also the Mar-a-Lago space?

[01:18:42] Speaker 03:
Yes, I think the Oval Office is sort of the paradigmatic one, the focus of the case, as Judge McFadden said, but I think the principle applies

[01:18:49] Speaker 03:
the other spaces as well.

[01:18:52] Speaker 03:
Whether you think of it as simply not a forum at all or as a different kind of forum, we need a new box for this.

[01:18:59] Speaker 03:
I tend to think of it as something like a proprietary forum.

[01:19:03] Speaker 03:
It doesn't fit within the existing case law on forums.

[01:19:06] Speaker 04:
What do you mean by proprietary forum?

[01:19:09] Speaker 03:
I mean it's a zone of discretion where

[01:19:12] Speaker 03:
President gets to choose, including based on viewpoint, who he admits to those spaces, just like he gets to choose based on viewpoint, who he discloses his mind to in answering questions or giving an exclusive interview.

[01:19:26] Speaker 03:
Although the case doesn't fit in the forum cases, I do think it would be a mistake to too hastily dismiss Baltimore Sun.

[01:19:33] Speaker 03:
That case was not about government speech.

[01:19:35] Speaker 03:
Read it carefully, Judge Billard.

[01:19:38] Speaker 03:
There is a part at the end that's about government speech that addresses a comment the governor had made.

[01:19:43] Speaker 03:
The heart of the analysis in the case

[01:19:46] Speaker 03:
the court conceives of as denial of access to discretionarily afforded information.

[01:19:52] Speaker 03:
If you give information to some reporters, you have to give it to others.

[01:19:56] Speaker 03:
That is what this case is about.

[01:19:58] Speaker 03:
They want information about what is happening behind those closed doors with the president and his guests in those restricted spaces.

[01:20:08] Speaker 04:
But isn't that sort of circular?

[01:20:10] Speaker 04:
Because there, everybody agreed that it was discretionarily afforded because

[01:20:16] Speaker 04:
a government official doesn't have to return a reporter's phone call and a government official has complete discretion on who he or she invites in for an interview.

[01:20:26] Speaker 04:
So that's why that was discretion afforded.

[01:20:28] Speaker 04:
Whereas you're a little bit bootstrapping or arguing in a circle if you say, well, here it's discretionary.

[01:20:35] Speaker 04:
Whereas, in fact, the courts and the press and the White House have understood the pool not to be discretionary in the sense

[01:20:45] Speaker 04:
that it really entails government speech, or just putting that aside because I understand you dispute that, they have not seen this as a place where the White House has discretion to pick and choose based on viewpoint.

[01:21:03] Speaker 04:
And so I'm not sure what discretionary... Whether they've seen it that way or not, what I'm saying is... Discretionarily afforded information gets you except to assume that you win and then say that you win.

[01:21:12] Speaker 03:
Well, I don't think it's assume that I win.

[01:21:14] Speaker 03:
What I'm trying to say is that it's the same principle, the same principle whereby a government official doesn't have to answer questions from reporters whose coverage he doesn't like, should be modestly extended to cover this very analogous situation of do you have to admit someone to your personal space to observe what you are saying

[01:21:32] Speaker 03:
and doing there so they can report on you just because you've given that access to some other reporters and the key insight I think from Baltimore Sun.

[01:21:41] Speaker 03:
is that this is routine in this industry and that should inform how you think about the First Amendment.

[01:21:47] Speaker 03:
The court said, government officials frequently and without liability evaluate reporters and reward them with advantages of access.

[01:21:56] Speaker 04:
But Mr. McArthur, if you go by what is routine in the industry, what is routine in the press pool and the press core is actually quite different from what is routine in answering phone calls or inviting individual or small groups of

[01:22:11] Speaker 04:
journalists in for conversations with a public official.

[01:22:17] Speaker 04:
So what is routine actually cuts against you?

[01:22:21] Speaker 04:
Let me ask you, is it the government's position that the president has abolished the press pool?

[01:22:29] Speaker 03:
No, I don't think he's abolished the press pool.

[01:22:32] Speaker 03:
He hasn't.

[01:22:33] Speaker ?:
No.

[01:22:34] Speaker 03:
Just one final point, if I may.

[01:22:37] Speaker 03:
Judge Katzis, I did not hear an answer to the question of how you can cabin this legal principle so that we aren't going to have constant inquiries into the president's state of mind about who he is choosing to admit to these spaces.

[01:22:51] Speaker 03:
And again, this is precisely what the court in Baltimore Sun warned against, that if you accept this principle, you are going to plant the seed of a constitutional case in everyday interaction.

[01:23:04] Speaker 01:
I am worried about that.

[01:23:07] Speaker 01:
Let me give you a couple of competing considerations.

[01:23:12] Speaker 01:
To me, these are harm points.

[01:23:16] Speaker 01:
One is, we've seen a lot of cases lately where the executive branch is claiming interim harm to support stays.

[01:23:29] Speaker 01:
Many of them involve

[01:23:32] Speaker 01:
injunctions that direct how the president performs official duties, recognizing inferior officers, spending money.

[01:23:44] Speaker 01:
We don't have that here.

[01:23:47] Speaker 01:
It's dignitary in a sense, but it's more abstract in that sense.

[01:23:54] Speaker 01:
And then in terms of what's going to happen in the

[01:24:02] Speaker 01:
however long it takes to adjudicate the appeal on the merits, no doubt will stick in the White House's craw, but it is the same arrangement that people have been living under.

[01:24:25] Speaker 01:
And the merits point that he can claw it back

[01:24:29] Speaker 01:
is maybe a little bit different from the harm point that, you know, this will not imperil the presidency if it persists for a few months or however many months while the appeal is pending.

[01:24:43] Speaker 03:
So I do think it is a species of dignitary harm, but I would not minimize it.

[01:24:48] Speaker 03:
I do think it is a serious dignitary harm.

[01:24:50] Speaker 03:
It is not far off from a judicial decree ordering the president to answer a specific reporter's question.

[01:24:56] Speaker 04:
It's so interesting to me that you make that argument.

[01:24:59] Speaker 04:
The record in this case is really edifying in the sense that during the Watergate period, the press pool was right in there with President Nixon.

[01:25:11] Speaker 04:
During the scandals with President Clinton, the press pool was right in there.

[01:25:19] Speaker 04:
When various presidents were ailing and dying, the press pool was right in there with them.

[01:25:27] Speaker 04:
And this is the tradition when you talk about what's routine in your reference to Baltimore Sun.

[01:25:35] Speaker 04:
To me, I mean, I found that really impressive that we have a First Amendment that enables that kind of observation of our chief executive.

[01:25:53] Speaker 04:
And to me, that does affect the claim of irreparable injury that's made here.

[01:26:00] Speaker 03:
So I think what is routine, what the Baltimore Sun Court said is routine, is government officials choosing who they give access to information to based on reasons of their own, including their assessment of the coverage.

[01:26:14] Speaker 04:
Who they themselves are willing to speak to.

[01:26:17] Speaker 03:
Or to give information to.

[01:26:18] Speaker 03:
I don't think it was just about answering questions in Baltimore Sun.

[01:26:21] Speaker 03:
It was about

[01:26:22] Speaker 03:
giving information, and it was a far more exclusionary policy than what we have here.

[01:26:25] Speaker 03:
The governor has said, everyone in the executive branch can't talk to or give information to these two reporters, okay?

[01:26:31] Speaker 03:
And so what the president has done has taken that routine aspect of this industry, where there's jockeying for access and granting of information based on assessments of reporters and their coverage and extended it to this space, which he is entitled to do.

[01:26:47] Speaker 03:
He is under no obligation to run the press pool the way it has historically been run.

[01:26:55] Speaker 04:
Thank you both very much.

[01:26:56] Speaker 04:
The case is submitted.