In response to a request by various news outlets to restore their access to the White House, US President Donald Trump’s administration on Tuesday countered that “access to the White House is a privilege—not a right.”
First, the Department of Justice (DOJ) said that the journalists’ argument that they have been subject to viewpoint-based discrimination should fail. The nonpublic forum doctrine deals with government-owned or government-operated property that has not historically been opened for expressive use by members of the general public. In nonpublic forums, the government may engage in speaker-based and content-based distinctions so long as the distinctions are reasonable and viewpoint neutral. The government may also prohibit external speakers’ expression entirely so long as they meet those same minimum standards of reasonableness and viewpoint neutrality.
The DOJ traces a line of cases to argue that the White House should not be classified as a nonpublic forum because access to the White House has always been “tightly controlled and highly selective.” And when access is this selective, “considerations of viewpoint may be permissible.”
Second, the government contends that it has a “compelling interest” in granting access only to journalists who satisfy “the minimum requirements of professionalism.” That conclusion comes from Sherrill v. Knight, in which the Court of Appeals for the DC Circuit mandated that “access not be denied arbitrarily or for less than compelling reasons.” The DOJ says that the three media outlets have failed to comply with these requirements: “[I]t is a significant violation of decorum to publish classified and sensitive national security information.” The government goes on to emphasize that it has a “compelling interest in national security.”
Third, according to the DOJ, plaintiffs are likely to fail on their First Amendment retaliation claim because they have failed to show that their protected speech was the but-for cause of Trump’s decision to ban the organizations. In other words, Trump would have taken the same action regardless of the plaintiffs’ exercise of their First Amendment rights because of the reasons outlined above.
Finally, the government states that there is no “constitutionally protected liberty interest in access to the White House” and no corresponding First Amendment right to enter the White House. Therefore, per the DOJ, the plaintiffs’ due process claim must fail.
The DOJ’s filing comes after Trump banned journalists from three news organizations—CNN, MS NOW and Politico—from the White House, claiming that they were propagating “fake news.” Trump stated that media outlets should not be able to spread “fiction and lies.” In response, the news outlets sued the Trump administration, arguing that the ban violates their rights to free speech and due process of law under the First and Fifth Amendments, respectively.
The government has requested that the court deny the plaintiffs’ motion for a temporary restraining order.
