[00:00:01] Speaker 01: Case number 24-50-04, Simon Etiba, appellant, versus Karine Jean-Pierre in her official capacity as press secretary to the President of the United States, et al. [00:00:12] Speaker 01: Mr. Dixon for the appellants, Mr. Myers for the appellees. [00:00:19] Speaker 04: Good morning, Mr. Dixon. [00:00:20] Speaker 06: Good morning, Your Honor. [00:00:20] Speaker 06: May it please the court? [00:00:23] Speaker 06: My name is Josh Dixon on behalf of appellant Simon Etiba. [00:00:30] Speaker 06: Under this court's decision in Sherrill against Knight, the White House may not draw arbitrary distinctions among journalists at areas the White House is open to the press. [00:00:40] Speaker 06: Nor may the White House regulate the press area in a way that forecloses effective judicial review. [00:00:46] Speaker 06: The White House's current hard pass regime violates this command in two ways. [00:00:51] Speaker 06: First, requiring journalists who want to cover the White House to obtain Supreme Court or congressional press credentials isn't constitutionally unreasonable. [00:01:01] Speaker 06: The Supreme Court has stated categorically, it will not issue credentials to White House correspondents. [00:01:06] Speaker 06: And under the daily press gallery rules to obtain congressional press credentials, journalists must show they have a need to access members of Congress. [00:01:16] Speaker 06: But there's no reason why a journalist who only wants to cover the White House should have to make such a showing. [00:01:23] Speaker 06: Second, the congressional press credentialing regime violates the unbridled discretion doctrine in three ways. [00:01:30] Speaker 06: One, the congressional credentialing regime gives the congressional press galleries unbridled discretion to deny an application based on their conclusion that an applicant is not sufficiently of repute in his profession. [00:01:43] Speaker 06: This is an utterly standardless standard and allows the press galleries to discriminate based on viewpoint. [00:01:50] Speaker 06: Two, the congressional credentialing regime does not allow for effective judicial review. [00:01:58] Speaker 06: The congressional press galleries are not required to issue a written decision. [00:02:02] Speaker 06: And under this court's consumer's union decision, the press galleries are immune from suit when adjudicating applications for press credentials. [00:02:12] Speaker 03: So there's one part of this case that I'm having some difficulty with, and that's sort of conceptualizing the injury to your client. [00:02:20] Speaker 03: Because this case strikes me as very different from all the precedents that are discussed in the briefs in that you want to have a hard pass, but at the same time, the daily pass is available. [00:02:35] Speaker 03: So it seems that the burden on your client is not [00:02:40] Speaker 03: the typical one in First Amendment context, because most of the cases deal with licensing programs or schemes where you're denied access if you don't get this license. [00:02:50] Speaker 03: But here, it's really the difference between a hard pass and a day pass. [00:02:54] Speaker 03: And it seems to me that the difference is, and correct me if I'm wrong, under either pass, once you get into the press area, you have all the exact same ability to express yourself and conduct and exercise your First Amendment rights. [00:03:10] Speaker 03: But under the day pass, which is the default way of getting in, you have to apply for the pass, and then you have to wait to be escorted to the room. [00:03:21] Speaker 03: But you can apply for the pass, like on Sunday, you can apply for a whole week's worth of passes. [00:03:25] Speaker 03: So you could make that into unfettered access, except for the fact that you might have to wait to be escorted, and you might have to wait up to 45 minutes. [00:03:34] Speaker 03: So that's really the only difference between the two passes, as far as I can tell. [00:03:40] Speaker 03: And then I'm wondering, is that a de minimis burden on your First Amendment right? [00:03:43] Speaker 03: Is that a cognizable injury that you just have to wait to be escorted? [00:03:47] Speaker 06: It's more you have accurately stated the facts. [00:03:50] Speaker 06: However, the injury is more significant. [00:03:53] Speaker 06: There's the de minimis injury in so far as because of that delay, which can sometimes be up to 45 minutes while other journalists are filtering in to the press room, which has limited availability. [00:04:06] Speaker 06: The journalists could miss the ability to enter the room entirely. [00:04:09] Speaker 03: Has that happened? [00:04:11] Speaker 06: It has not. [00:04:12] Speaker 06: It has not happened that Mr. Atiba has been excluded from the room over the past year. [00:04:18] Speaker 06: What has happened, though, is because of that delay, and this is not on the record, but what has happened is Mr. Atiba has missed the beginning of a meeting. [00:04:26] Speaker 06: And I would also point out that this is a facial challenge. [00:04:29] Speaker 06: And so whether that has actually happened to Mr. Atiba over the last year is not relevant for the facial challenge. [00:04:35] Speaker 06: The point is that if World War III were to break out tomorrow, God forbid, [00:04:39] Speaker 06: And every journalist near about a thousand of the last evidence that we have with a hard pass or that send on this press room with its forty nine seats and limited standing room because Mr. Attiba has to wait for the forty five minutes. [00:04:53] Speaker 03: He would be excluded for up to forty five minutes. [00:04:55] Speaker 03: How long does he typically really have to wait? [00:04:58] Speaker 06: The record doesn't contain that information. [00:05:00] Speaker 06: He can wait up to 45 minutes. [00:05:02] Speaker 06: And of course, on the day where the thousand journalists descend on the press room, he would wait at least the 45 minutes just because of the hubbub of what's going on. [00:05:11] Speaker 06: And so I don't think it's quite right to characterize this as a de minimis injury. [00:05:15] Speaker 06: This is, on occasion, an exclusion. [00:05:18] Speaker 06: It is an actual exclusion from the room. [00:05:21] Speaker 03: I'm sorry. [00:05:21] Speaker 03: It's an exclusion from the room. [00:05:22] Speaker 03: How? [00:05:23] Speaker 06: Because by virtue of the 45 minutes, he would not have the room would be full by the time that 45 minutes happens. [00:05:31] Speaker 03: What typically happens if the room is full? [00:05:33] Speaker 03: I'm sorry? [00:05:34] Speaker 03: What typically happens if the room is full? [00:05:35] Speaker 03: What happens to the overflow journalists with passes? [00:05:39] Speaker 06: I don't know that that's not in the record. [00:05:41] Speaker 06: But what is in the record is that there are 49 assigned seats and then they're standing room only. [00:05:47] Speaker 06: That would not accommodate the 1,000 journalists who have a hard pass. [00:05:51] Speaker 03: It seems like that could be an important fact, if there's an overflow room, or you can, I don't know, here. [00:05:56] Speaker 06: I'm not aware of that. [00:05:58] Speaker 06: In the overflow room, he would not have the ability to engage, of course, with the press secretary. [00:06:02] Speaker 06: I'd also point out, Your Honor, that the government has admitted in footnote five of its brief that the exclusion from the press area cannot be based on viewpoint. [00:06:13] Speaker 06: And because of that admission, I think that that closes the door on the argument that there's no First Amendment injury here if it's significant enough to give rise to a retaliation. [00:06:24] Speaker 03: I think it's certainly a burden on. [00:06:27] Speaker 03: First Amendment right because it affects access to this forum. [00:06:31] Speaker 03: It's just like how much does it affect access is kind of what I've been struggling with. [00:06:36] Speaker 03: Is it enough of a burden for it to be cognizable? [00:06:39] Speaker 03: I think in context and it is a it's a right that depends on the rights that's being given to others because the only reason that's right. [00:06:46] Speaker 03: The only reason we're here is because there's two types of passes. [00:06:50] Speaker 03: You want the better one. [00:06:51] Speaker 03: And I just don't see a lot of analogous cases where that's the case. [00:06:57] Speaker 03: The closest one is this Wicomico case, which is from the Fourth Circuit. [00:07:02] Speaker 03: And that suggests that where we've given you a benefit and we've taken it away, and now you have this de minimis burden, [00:07:08] Speaker 03: There's no cognizable. [00:07:09] Speaker 06: I would point out that the chemical county case was not a designated press area. [00:07:13] Speaker 06: It was a jail and the ACLU had been given access to the jail. [00:07:17] Speaker 03: So this was different in so far as it was a First Amendment claim that you're you're intruding on our First Amendment right to petition the government, et cetera, et cetera. [00:07:24] Speaker 03: And they said. [00:07:25] Speaker 03: We gave you an accommodation. [00:07:27] Speaker 03: It was kind of like we gave you a press pass. [00:07:29] Speaker 03: That's an easier way to do your thing. [00:07:31] Speaker 03: We took it away. [00:07:32] Speaker 03: But the difference between you and all the other paralegals is the same. [00:07:37] Speaker 03: And it's de minimis that you're now inconvenienced. [00:07:41] Speaker 06: Let me also direct your honor to Mansky. [00:07:43] Speaker 06: And Mansky, that was a case that involved in Minnesota a prohibition on political attire. [00:07:49] Speaker 06: The way that that statute worked was there was an election judge that was stationed at the polling place and the judge would look at the clothing and determine whether it was political. [00:07:58] Speaker 06: If the judge made that determination, there was no prohibition. [00:08:02] Speaker 06: The individual was allowed to go in. [00:08:04] Speaker 06: It's just that the individual was referred to the authorities for handling. [00:08:09] Speaker 06: And so there was no prohibition on the right of the individuals in the Manskey case to speed to speed rather was just a burden on the entry delays and entry and then the possibility of having your name reported. [00:08:20] Speaker 06: I can also point your court your honor to the Forsyth County case. [00:08:24] Speaker 06: In that case, there was a permit regime. [00:08:27] Speaker 06: The administrator had determined that there would be $100 [00:08:31] Speaker 06: fee to cover administrative costs, and rather than pay the $100 fee, nationalist movement sued. [00:08:38] Speaker 06: And despite the de minimis nature of a $100 fee payment, the Supreme Court said, yes, we're still standing to bring a facial challenge to this permitting regime, despite the fact it's only $100. [00:08:48] Speaker 02: So let me ask you where the logic of your argument takes us. [00:08:55] Speaker 02: there are 49 seats and let's say there are 20 standing room spaces. [00:09:04] Speaker 02: So maybe you have 70 people in the room plus the press secretary. [00:09:12] Speaker 02: So having a hundred hard passes may be the maximum that you decide [00:09:26] Speaker 02: makes sense under this situation. [00:09:34] Speaker 02: And therefore, you set up a hard pass system that has a lot of qualifications, none of which have anything to do with your viewpoint. [00:09:52] Speaker 02: It may be that we want people who are married [00:09:57] Speaker 02: or people who have two children. [00:10:00] Speaker 02: It may simply be people who are admitted to the House and Senate, or maybe the Supreme Court. [00:10:10] Speaker 02: It's a way of filtering without getting into viewpoint discrimination, at least as it's traditionally been defined. [00:10:29] Speaker 02: So here, you don't argue, and I understand why, I think, that your client's viewpoint is what's at issue. [00:10:44] Speaker 02: Rather, you refer to what you've been discussing with Judge Pan, [00:10:54] Speaker 02: in terms of what's the nature of the First Amendment injury. [00:11:06] Speaker 02: And that's where I think we're all having trouble. [00:11:10] Speaker 02: And I understand from your client's point of view, it would be much nicer not to have to do this daily submission or weekly submission. [00:11:20] Speaker 02: And there seems to be a suggestion [00:11:24] Speaker 02: that if you had a hard pass, you might get called on more often. [00:11:29] Speaker 02: But I don't see anything to back that up. [00:11:34] Speaker 02: So your client does not like the fact that he has total access, but he has to do a bit more in the way of administrative matters. [00:11:53] Speaker 02: in order to get that access. [00:11:55] Speaker 02: And as you point out, he may miss the beginning or there may be a mad crush for the 70 seats and standing room that are available. [00:12:13] Speaker 02: But I don't see any argument here that this regime [00:12:23] Speaker 02: is based on some sort of impermissible standard in terms of viewpoint. [00:12:34] Speaker 02: Am I correct about that? [00:12:36] Speaker 06: Well, Your Honor. [00:12:39] Speaker 02: That's a yes or no. [00:12:43] Speaker 06: We do not allege in this proceeding that the hard pass program was adopted based on Mr. Atiba's viewpoint. [00:12:53] Speaker 06: We made that argument below, that was dismissed, and we have not appealed that. [00:12:57] Speaker 06: So. [00:12:58] Speaker 02: That is not before us. [00:13:00] Speaker 02: That's what I want to confirm. [00:13:02] Speaker 02: That is. [00:13:02] Speaker 02: So there is no claim that viewpoint is at issue here. [00:13:10] Speaker 02: We have. [00:13:10] Speaker 02: We totally claim [00:13:12] Speaker 02: as I understand it, subject to your answer to Judge Pan, is there's an administrative burden and you don't know what of repute means. [00:13:25] Speaker 06: We have argued that the lack of discretion or the abundance of discretion, I have to say, that the lack of ways to cabin the discretion of the congressional press galleries is de facto viewpoint discrimination because of the conclusion that... No, you just told me, counsel, you were not making a viewpoint discrimination argument. [00:13:49] Speaker 02: I need to be clear about that. [00:13:51] Speaker 02: And you can't come in the back door. [00:13:54] Speaker 02: We have said we want, and I gave you hypotheticals, people with two children, a boy and a girl, people who are married or only single people or people who've only gone to public schools. [00:14:08] Speaker 02: There's no viewpoint in your argument. [00:14:11] Speaker 02: You don't like the way the Senate selects its press people or the House. [00:14:21] Speaker 02: and you say you have no interest in the Supreme Court, so that's meaningless to you. [00:14:27] Speaker 06: Our argument, Your Honor, is not that it was on this proceeding, again, that he was targeted because of the viewpoint. [00:14:33] Speaker 06: However, our argument is because of the lack of procedural protections in the procedural, the congressional press gallery proceedings. [00:14:42] Speaker 06: Though that lack of adequate safeguards constitutes de facto viewpoint discrimination under the Child Evangelism Fourth Circuit case, the Kamanu Ninth Circuit case. [00:14:54] Speaker 06: And so we're not alleging he was targeted on this proceeding because of the viewpoint, but that the congressional press gallery rules are insufficiently protective [00:15:05] Speaker 06: of viewpoint discrimination. [00:15:07] Speaker 02: So I thought your argument there was your client has no interest whatsoever in covering anything in the House or Senate, which is a different argument from saying that there's something wrong with the way the House and Senate choose people for their press galleries. [00:15:33] Speaker 06: Those are separate arguments, yes, your honor. [00:15:35] Speaker 06: Our first argument, constitutional reasonableness, is that because Mr. Attiba's primary desire is to cover the White House, that it is constitutionally unreasonable to require him to obtain a press gallery, congressional credential to cover Congress or the Supreme Court. [00:15:55] Speaker 02: But what I'm getting at is you could make that argument the way you framed it about any set of criteria that is established for the hard pass. [00:16:15] Speaker 06: I don't believe that's correct, Your Honor. [00:16:16] Speaker 06: For example, your example about limiting the membership to the hard path program to those who are married. [00:16:24] Speaker 06: I think that would be constitutionally unreasonable. [00:16:26] Speaker 06: That has no bearing on coverage of the Supreme Court. [00:16:29] Speaker 02: Precisely my point for people who went to public schools. [00:16:35] Speaker 02: That's my point. [00:16:36] Speaker 02: Any set of criteria, you will say your client has no interest. [00:16:43] Speaker 02: It's irrelevant. [00:16:44] Speaker 02: He wants the hard pass. [00:16:46] Speaker 02: And I'm just trying to understand. [00:16:50] Speaker 02: What are the limits of your argument or are there no limits? [00:16:54] Speaker 02: And the only option available to the White House for the hard pass is, I'm not sure how you would define it. [00:17:05] Speaker 02: Come January 1, the first hundred people to arrive at the White House get a hard pass and that's it. [00:17:13] Speaker 06: That is not our position, Your Honor. [00:17:15] Speaker 06: I'm sorry I've misunderstood you until now. [00:17:16] Speaker 06: There are absolutely reasonable limits that the White House can place on those who are eligible for the hard pass. [00:17:23] Speaker 02: And who makes that decision? [00:17:26] Speaker 02: Because their argument is why wouldn't they rely on the other branches of government and just piggyback? [00:17:39] Speaker 06: If the White House were to make a rule, for example, that, as your Honor knows from the briefing, one of the requirements of the congressional press galleries is that they not be engaged in lobbying, the journalists not be engaged in lobbying. [00:17:52] Speaker 06: If the White House were to publish a set of standards that included not being engaged in lobbying, that would be permissible. [00:17:59] Speaker 06: It is permissible to restrict individuals who are there at the White House to cover the president or bona fide journalism. [00:18:08] Speaker 02: And if they're there to press a claim or be a claim, who knows what bona fide journalism means? [00:18:14] Speaker 02: You don't know what repute means. [00:18:19] Speaker 06: The requirement that a journalist not be engaged in lobbying is a way to filter out individuals who are not there for the purpose of engaging in journalism. [00:18:31] Speaker 06: And so that rule would be perfectly permissible. [00:18:34] Speaker 06: A rule limiting as the White House does now, for example, residents of the D.C. [00:18:40] Speaker 06: area [00:18:41] Speaker 06: You know, the purpose of that, I presume, is to ensure that an individual is showing up on a regular basis. [00:18:47] Speaker 06: We're not challenging that. [00:18:50] Speaker 06: But Your Honor, again, going back to Your Honor's hypothetical, married person, that has no bearing on coverage, just like requiring an individual to obtain a press pass to cover Congress has no bearing on whether they are covering the White House as a legitimate journalist. [00:19:07] Speaker 04: But I mean, OK, I understand your argument, but, you know, [00:19:11] Speaker 04: We as lawyers have to take a bar exam in order to have the ability and privilege to practice law. [00:19:19] Speaker 04: You know, it has lots of subjects on it. [00:19:23] Speaker 04: You know, I may not ever intend to work on trusts in the states or property. [00:19:30] Speaker 04: I just want to practice criminal law. [00:19:34] Speaker 04: They make me study that, learn it, pass it on the bar exam in order to practice, even though I'm not going to and have no intention of practicing in those areas. [00:19:46] Speaker 04: You know, life's, you know, you know, life's not fair. [00:19:54] Speaker 04: You know, he may not want to ask any questions in Congress [00:20:00] Speaker 04: the House and Senate. [00:20:02] Speaker 04: Okay, fine. [00:20:04] Speaker 04: How is that the First Amendment? [00:20:06] Speaker 04: How is that so unreasonable that that it's a constitutional violation and a facial challenge? [00:20:13] Speaker 06: Well, it's not just that he doesn't want to ask questions of Congress. [00:20:16] Speaker 06: It is that to get the press pass for Congress, he is required to demonstrate a need for access for members of Congress. [00:20:23] Speaker 06: And so that's much more restrictive than just [00:20:26] Speaker 06: you know, not wanting to cover Congress. [00:20:28] Speaker 06: But be that as it may, we don't license journalists in this country precisely because of the First Amendment considerations and what they're doing. [00:20:37] Speaker 06: I don't know specifically whether there's a First Amendment right to practice law. [00:20:41] Speaker 06: Maybe I have a right to speak right now like I don't know. [00:20:44] Speaker 06: But the point is that the bar exam measures a lawyer's overall fitness and ability to perform the tasks of that job. [00:20:53] Speaker 06: Whereas we're talking about a journalist, we're talking about speech, pure speech in a way that knowing trust in the States is just it's just very different. [00:21:04] Speaker 06: And I know my own practice, Your Honor, while I [00:21:09] Speaker 06: don't do trust in the state's law, there are absolutely occasions where having a baseline knowledge of trust in the state's law would come in handy in what I'm doing. [00:21:19] Speaker 06: And so I think it's perfectly reasonable for a licensor in the bar situation to assure a reasoned... [00:21:25] Speaker 06: well-rounded knowledge of the profession one is engaging in, whereas with journalism, again, pure speech, free speech, and there's no licensure in this country. [00:21:37] Speaker 04: Let's switch gears for a second to go back to where we started along the lines of Judge Pan's questioning. [00:21:44] Speaker 04: In a facial challenge in any context, whether it's facial over-breath, facial void for vagueness, [00:21:53] Speaker 04: kind of First Amendment context. [00:21:57] Speaker 04: There's always a substantiality aspect of, you can't win an over-breath challenge unless, because you can point out one or two hypothetical instances where, you know, a statute might restrict First Amendment expression. [00:22:17] Speaker 04: It's got to be substantially overbreath. [00:22:22] Speaker 04: Don't we have, doesn't the precedent require us to look at this challenge that you were making in the same fashion? [00:22:34] Speaker 04: And doesn't that yes or no to that? [00:22:40] Speaker 04: And then if yes, then doesn't that impact on whether we think that this injury is substantial enough [00:22:52] Speaker 04: to require us to proceed down the road of the merits, so to speak, of your First Amendment arguments. [00:23:04] Speaker 06: No, Your Honor, it does not. [00:23:06] Speaker 06: Substantiality or substantial overbreath is obviously required in the overbreath doctrine context. [00:23:12] Speaker 06: But that's not the claim we've alleged here. [00:23:14] Speaker 06: We've alleged a violation of the unbridled discretion doctrine. [00:23:17] Speaker 06: And under the city of Lakewood and similar line of cases, a facial challenge is appropriate whenever [00:23:24] Speaker 06: the licensing regime could result in the chill of speech or could make it difficult for the plaintiff to demonstrate actual viewpoint discrimination. [00:23:34] Speaker 06: And the reason for that is because an individual who consciously chooses to chill their own speech based on the discretion that's been granted to a licensor [00:23:44] Speaker 06: That claim can never be brought. [00:23:46] Speaker 06: You can't bring a First Amendment challenge to your own chilling of speech. [00:23:49] Speaker 06: And so the Supreme Court said in the city of Lakewood, whenever there's an opportunity or possibility that a licensing regime will chill speech or conduct closely associated with speech, that's sufficient to bring the facial challenge. [00:24:03] Speaker 06: In the constitutional reasonable standpoint, it is our position that in every case, [00:24:14] Speaker 06: requiring an individual to demonstrate a need to cover a member of Congress is constitutionally unreasonable to cover the White House. [00:24:22] Speaker 06: And so our argument with respect to constitutional reason on us is that it is facially invalid because it is facially invalid in all of its applications. [00:24:31] Speaker 03: We have to look at that requirement in the context of what are the well established, I guess, procedures of this committee because it seems like [00:24:42] Speaker 03: They are allowing a lot of people who don't require access to the congressional galleries to have these passes. [00:24:48] Speaker 03: That's why there's a whole White House press corps that have the press gallery credential as well. [00:24:57] Speaker 03: And I mean, can we look at this? [00:24:59] Speaker 03: I know it's a facial challenge, but it says that all these rules have to be interpreted by this committee. [00:25:05] Speaker 03: And are they interpreting that committee broadly? [00:25:07] Speaker 03: Because they do credentialing for, like, conventions and other events that have nothing to do with access to the Senate gallery. [00:25:14] Speaker 06: Well, to be clear, with respect to the conventions and other credentialing, [00:25:18] Speaker 06: In those situations, the press galleries are not looking to whether the credentialees are wanting to cover members of Congress. [00:25:27] Speaker 03: So they don't apply these rules to credential those? [00:25:29] Speaker 06: They do not apply that requirement that the individual, for example, if an individual wants to cover the DNC, the congressional credentialing agencies are not evaluating whether they have a need to cover Congress. [00:25:42] Speaker 03: They're not required to by these rules? [00:25:46] Speaker 06: That is not in the record. [00:25:48] Speaker 06: I can tell, Your Honor, that I can't remember which of the four credentialing agencies it is. [00:25:54] Speaker 06: I believe it is radio and TV. [00:25:56] Speaker 06: It specifically says on the website for that agency, we do not require that you show you have a need to cover Congress. [00:26:02] Speaker 03: The point is... So I guess my question is, if they can do that with respect to conventions, we're going to remove this requirement for conventions. [00:26:10] Speaker 03: Can't they do that with respect to the White House? [00:26:12] Speaker 03: Absolutely. [00:26:13] Speaker 03: And aren't they, in fact, doing that? [00:26:14] Speaker 03: Because they are credentialing people to be in the White House press corps who are not primarily covering Congress. [00:26:20] Speaker 03: And isn't that consistent with the rules? [00:26:22] Speaker 03: Because it says the rules shall be interpreted and administered by the standing committee. [00:26:26] Speaker 03: So maybe they're interpreting and administering it in this well-established way. [00:26:29] Speaker 06: The fact that the rules are, if the rules are, in fact, being administered in a way that they're not written, that's its own problem. [00:26:39] Speaker 06: I mean, this court said, your honor, in the arch-sciesis of Washington case, that the inequitable or differential application of rules itself is constitutionally unreasonable. [00:26:51] Speaker 06: And so if they have this written requirement that they're not applying or not requiring for, you know, esteemed journalists, that's a bigger problem because that demonstrates that they are just- That's actually the problem that you don't like. [00:27:03] Speaker 03: And if they're ignoring it, you think that's bad too. [00:27:06] Speaker 06: If they're ignoring it for some people, yes, I do think that's bad. [00:27:09] Speaker 03: What if they're ignoring it for everybody? [00:27:10] Speaker 03: They are allowed to interpret it and administer the rules and say they're interpreting this not to require this, because it doesn't work as a practical matter. [00:27:19] Speaker 03: They've been doing this since 1888. [00:27:21] Speaker 03: They can change their ways of doing this. [00:27:23] Speaker 06: There's no record evidence that they are doing that. [00:27:28] Speaker 06: All we know is that there are some members of the White House Correspondents Association who also have their congressional press pass. [00:27:34] Speaker 06: But if they are doing that, then that creates its own unbridled discretion doctrine. [00:27:38] Speaker 06: What we know is that the rules say [00:27:40] Speaker 06: And if they are interpreting the rules in a way, for some people, where they're winking a nod, brushing under the carpet, that's its own problem. [00:27:50] Speaker 03: So my issue with your unvital discretion argument is as follows. [00:27:54] Speaker 03: So basically, we're talking about a non-public forum, whether it's limited or non-public. [00:27:57] Speaker 03: It's non-public. [00:27:58] Speaker 03: And so the White House just has to be reasonable and viewpoint neutral. [00:28:03] Speaker 03: And you're saying, well, they're not being reasonable because they're [00:28:06] Speaker 03: farming this out to a committee that has unbridled discretion. [00:28:10] Speaker 03: So I kind of understand your argument to be the White House is exercising unbridled discretion because they're kind of delegating their authority, or this committee is like their agent, so the White House is exercising unbridled authority. [00:28:21] Speaker 03: But then you look at the rules that govern what this committee has to do, and it is so different from the cases involving unbridled discretion. [00:28:28] Speaker 03: where really you've got government officials who really have no limits on how they do things. [00:28:34] Speaker 03: And you look at these rules, and they're pretty specific, and they kind of support the idea that we want people who are going to come into our White House press area or congressional gallery to be journalists, not lobbyists. [00:28:48] Speaker 03: So when they say bonafide journalists of repute under such rules as a standing committee [00:28:55] Speaker 03: of course, on the shelf prescribed, they're just saying, we want you to be a journalist and not a lobbyist, somebody who actually is here for the purpose that you say you're here for, because there's stuff in the record about people pretending to be journalists when they're really lobbyists, things of that nature. [00:29:10] Speaker 03: And it's reasonable because the White House doesn't have a credentialing apparatus. [00:29:15] Speaker 03: They are not the ones interviewing these people to see if they're real journalists. [00:29:21] Speaker 03: They're just going to [00:29:22] Speaker 03: adopt whatever this committee decides. [00:29:26] Speaker 03: Congress has also delegated its authority to this committee, and they're journalists, so they're the ones who can decide. [00:29:33] Speaker 03: Why isn't that reasonable? [00:29:35] Speaker 03: And why is it not an unbiased discretion? [00:29:37] Speaker 03: Because there are a whole bunch of rules and regulations about what they're trying to do and how to do it. [00:29:41] Speaker 06: To two points, if I may, your honor, the White House does not currently credential applicants, but it did for the first half of the Biden administration. [00:29:50] Speaker 06: So the White House has the capability to do this. [00:29:54] Speaker 06: There's also the White House Correspondence Association, which they didn't. [00:29:59] Speaker 03: They did not rely on Congress to do this, but we don't know what they were doing. [00:30:04] Speaker 03: And now they're saying, we're trying to rationalize this process. [00:30:07] Speaker 03: There are too many hard passes. [00:30:09] Speaker 03: We want you to be a real journalist. [00:30:10] Speaker 03: Maybe they weren't checking to see if you're a real journalist before, but now they want to. [00:30:14] Speaker 03: And it's very consistent with their history of doing things. [00:30:16] Speaker 03: There's only two years in which they didn't do this, apparently, in recent history. [00:30:20] Speaker 03: But I just don't know why it's not reasonable. [00:30:22] Speaker 03: and viewpoint neutral, which is all we need to decide. [00:30:24] Speaker 06: It is permissible, we believe, for the White House to delegate the task to, it could delegate the task to the White House Correspondence Association. [00:30:33] Speaker 06: The problem is, number one, that does not cure the risk of viewpoint discrimination for reasons we've put in the brief. [00:30:41] Speaker 06: The bigger problem with the of repute standard, though, is your honor's absolutely right. [00:30:45] Speaker 06: There are five or six credentials that the congressional press calories apply. [00:30:50] Speaker 03: But it's not a freestanding of repute requirement. [00:30:52] Speaker 03: Of repute, under such rules as the standing committee of correspondence shall prescribe. [00:30:58] Speaker 03: And I'm assuming that the standing committee has to abide by these rules. [00:31:03] Speaker 03: I was curious about this. [00:31:05] Speaker 03: These rules are by who? [00:31:07] Speaker 06: Those rules were created by the committee. [00:31:09] Speaker 03: Right, the Committee on Rules and Administration, not by this. [00:31:13] Speaker 06: No, they're approved by the Committee on Rules and Administration, but they were promulgated by the Senate Daily Press Gallery. [00:31:20] Speaker 03: Okay, so how come, Judge Bates said we have to look at this requirement of repute in light of all these other requirements that are in this rule. [00:31:30] Speaker 03: And if this whole rule was interpreted in, I'm sorry, [00:31:36] Speaker 03: prescribed by the committee, then you don't just look at a repute. [00:31:40] Speaker 03: You have to look at the whole thing. [00:31:41] Speaker 06: That's absolutely correct. [00:31:42] Speaker 06: I mean, if an individual is a lobbyist, for example, they're out. [00:31:46] Speaker 06: We have no problem with that. [00:31:48] Speaker 06: The problem is that one. [00:31:49] Speaker 03: That's not unbridled discretion. [00:31:51] Speaker 03: There's a whole bunch of detailed rules here. [00:31:53] Speaker 06: But one of the rules requires that the journalist be a journalist of repute, which basically means have a good reputation. [00:32:01] Speaker 03: And so because that necessarily it means, I think it means that you're a real journalist. [00:32:06] Speaker 06: That's what bonafide means, Your Honor. [00:32:08] Speaker 06: We don't take issue with the word bonafide. [00:32:11] Speaker 06: Our issue is with the word of repute, which means that you have to be a journalist that has a good reputation, which it doesn't matter how many other rules, cabin, discretion. [00:32:21] Speaker 06: The problem is this one rule undoes all of that and says, if this journalist ticks all these boxes, we conclude they're not sufficiently of repute. [00:32:29] Speaker 03: Only if we agree with you that of repute is a freestanding requirement that is not informed by everything else. [00:32:37] Speaker 06: That is correct, though there's no evidence that the press gallery is applying that rule to be informed by the other. [00:32:47] Speaker 03: But the rule requires them to. [00:32:48] Speaker 03: It's of repute under such rules as the standing committee shall prescribe. [00:32:52] Speaker 03: And you agree that they prescribed all of these rules. [00:32:55] Speaker 03: Yes, Your Honor, but that reads... But of repute, it's very explicit. [00:33:00] Speaker 06: Under the rules. [00:33:02] Speaker 06: We don't read it that way. [00:33:03] Speaker 06: We believe that the of repute requirement is its own standalone requirement. [00:33:09] Speaker 03: But that's contrary to what is actually written in the rule. [00:33:11] Speaker 03: It says of repute under the rules prescribed by the standing. [00:33:15] Speaker 06: If you look at the House rule, for example, rule six, it doesn't define of repute in this way. [00:33:23] Speaker 06: It just is its own standalone requirement. [00:33:25] Speaker 06: I don't believe that. [00:33:26] Speaker 03: That's not the one you're challenging. [00:33:27] Speaker 03: You're challenging this. [00:33:28] Speaker 06: Well, that's the one that gives the galleries authority to do this. [00:33:33] Speaker 06: OK. [00:33:33] Speaker 06: Yeah. [00:33:33] Speaker 06: So I would also point out, Your Honor, before I let my time run too far over, that in addition to the unbridled discretion argument vis-a-vis the of-repute requirement, there's also the problem that there's no possibility of judicial review. [00:33:47] Speaker 06: There's also the possibility that there are no timelines. [00:33:51] Speaker 06: And so even putting aside the of-repute requirement, [00:33:54] Speaker 06: The Supreme Court has made very clear that when speech is being licensed, there has to be a mechanism for judicial review and they're simply not under the specific circumstances here. [00:34:04] Speaker 03: I can see why those requirements might be important if we're talking about. [00:34:09] Speaker 03: a licensing scheme that says you can or cannot express yourself. [00:34:12] Speaker 03: But we're not talking about that here. [00:34:14] Speaker 03: We're talking about, can you get in 45 minutes earlier? [00:34:17] Speaker 03: Under those circumstances, why isn't this whole scheme reasonable? [00:34:22] Speaker 03: I mean, I just think that you have to look at the injury that is being allegedly inflicted on your client. [00:34:30] Speaker 06: That takes us back to your honor's first set of questions. [00:34:33] Speaker 03: I think it just informs, though, the reasonableness of all of this. [00:34:37] Speaker 06: Well, I would simply submit, Your Honor, that requiring an individual to wait 45 minutes and run the risk that if a significant news event occurs, they're not going to be able to get in that room with their competitors and ask the questions they're entitled to ask. [00:34:50] Speaker 03: Well, I understand that. [00:34:51] Speaker 03: And given that that is the only injury that we're talking about. [00:34:54] Speaker 03: It is, I agree that it's a burden on his First Amendment rights, but it's a pretty small one. [00:34:59] Speaker 03: I'm not sure if it's de minimis or insignificant, but it's a pretty small one. [00:35:03] Speaker 03: And given that that's all it is, it seems to me that all the cases that talk about time limits and things of that nature aren't really as relevant because those are talking about, we better give you an answer because if we don't give you an answer, you can't exercise your First Amendment rights at all. [00:35:19] Speaker 03: It's not that you have to wait 45 minutes to exercise them. [00:35:21] Speaker 03: If you cannot exercise them at all, we better give you an answer on that. [00:35:25] Speaker 06: That's different. [00:35:26] Speaker 06: I would point your arm to the Seattle affiliate case. [00:35:28] Speaker 06: That's the Ninth Circuit case. [00:35:29] Speaker 06: We cited in our brief. [00:35:30] Speaker 06: In that case, there was a permit requirement to march on the streets, but individuals could march on the side even without a permit. [00:35:37] Speaker 03: And what was the name of that case? [00:35:38] Speaker 06: Seattle affiliate. [00:35:42] Speaker 06: permit to march in the streets, no permit required to march on the sidewalks. [00:35:47] Speaker 06: And applicant applied and made a facial challenge and the Ninth Circuit addressed this precise question, I don't remember the footnote four or five, said specifically that even though they can march on the sidewalks, [00:36:01] Speaker 06: The fact that they are prohibited from marching in the streets is a significant enough First Amendment injury to give rise to these protections that apply in speech licensing regimes. [00:36:13] Speaker 06: We would submit that the same type of analysis apply here. [00:36:16] Speaker 06: Is it a complete prohibition of speech on a day to day basis? [00:36:20] Speaker 06: It is not. [00:36:21] Speaker 06: But there is a circumstance under which Mr. T is a march on the street. [00:36:24] Speaker 03: We have to get back to you in time for you to be able to march so that I can see why there's more of a time constraint in that case that doesn't apply here. [00:36:33] Speaker 06: Potentially, although Mr. Atiba is current, I mean, he's had his application pending for 16 months. [00:36:39] Speaker 06: So during that time period, like I said, there have been times when he has tried to enter the room, and he has been able to, but he was late and he missed the briefing. [00:36:48] Speaker 06: So that we believe all of that constitutes First Amendment injury sufficient to kick in these procedural protections under the unbridled discretion doctrine. [00:36:56] Speaker 04: All right. [00:36:57] Speaker 04: Any other questions at this point? [00:37:00] Speaker 04: Disjuncture? [00:37:01] Speaker 04: Judge Rogers? [00:37:02] Speaker 02: No, thank you. [00:37:03] Speaker 04: All right, your time is up. [00:37:06] Speaker 04: We'll give you a little bit on rebuttal. [00:37:07] Speaker 04: Let's hear from the government, Mr. Myers. [00:37:14] Speaker 05: Good morning, Your Honors. [00:37:15] Speaker 05: May it please the court, Stephen Myers, on behalf of the government. [00:37:18] Speaker 05: This lawsuit is an attempt to stack First Amendment doctrine upon First Amendment doctrine to ultimately invalidate permitting system or a credentialing system, I should say, that's been working for decades or longer to distinguish between journalists on the one hand and lobbyists or other individuals who would find it convenient to have access to senior government officials on the other. [00:37:41] Speaker 05: We think the lawsuit fails at every single step, whether that's the nature of the injury or the nature of forum. [00:37:47] Speaker 05: But probably the easiest way is just to recognize that the criteria at issue in this case are longstanding, clear, reasonable, and viewpoint neutral. [00:37:58] Speaker 05: And in fact, Mr. Atiba has pointed to no time when the congressional galleries have ever abused their authority to discriminate either on the basis of viewpoint or against their economic competitors. [00:38:10] Speaker 05: You know, for the court to sort of agree with Mr. Atiba at every contested step of the analysis, to get to a point where the court is saying that Congress has been breaking the law for 136 years would really be quite extraordinary. [00:38:23] Speaker 05: And so I want to emphasize that, you know, the requirement that a journalist be bona fide dates to 1859. [00:38:29] Speaker 05: This of repute requirement dates to 1888. [00:38:34] Speaker 05: And again, the speculation aside, like we're here on summary judgments, [00:38:38] Speaker 05: And Mr. Atiba has just not pointed to any evidence of times when this system has broken down and hasn't worked. [00:38:47] Speaker 05: With respect to what the rules say, Judge Pan, I think Your Honor is thinking about it exactly the right way. [00:38:53] Speaker 05: So paragraph three of the Senate rules is sort of setting out what the role is of the standing committee. [00:38:59] Speaker 05: So it's their role is to do the screening of bona fide journalists of repute, [00:39:05] Speaker 05: under such rules as the standing committee shall prescribe. [00:39:10] Speaker 05: And then the question is, well, what are those rules? [00:39:12] Speaker 05: And those are listed in the next paragraph. [00:39:14] Speaker 05: That's in paragraph four. [00:39:16] Speaker 05: And those are the things like being a full-time correspondent who resides in Washington, is independent of a lobbying organization, et cetera. [00:39:26] Speaker 05: Again, this court's cases in Zuckerman, the Supreme Court, in City of Lakewood, [00:39:31] Speaker 05: tells us that we can look to well-established practice. [00:39:34] Speaker 05: Here, the well-established practice is that legitimate journalists who want to report the news are not being discriminated against. [00:39:42] Speaker 05: And so for that reason, there's no reason for this court to be skeptical of this system that has been working. [00:39:49] Speaker 04: But what about the argument that you don't get any sort of written decision, there's no deadlines, [00:39:58] Speaker 04: It's essentially an invitation for arbitrary action. [00:40:06] Speaker 05: I think a number of responses, Judge Wilkins. [00:40:08] Speaker 05: One is that, again, there is no evidence of arbitrary action. [00:40:11] Speaker 05: That's simply not what's happening. [00:40:13] Speaker 05: If you look to this court's decision in the consumer's union case, the court said the purpose of this requirement is just to ensure that, consistent with space limitations, [00:40:23] Speaker 05: You know, these spaces will be used by bonafide reporters. [00:40:27] Speaker 05: But in terms of those heightened procedural protections to which your honor was referring, the Supreme Court's cases and this court's cases make clear that those are needed when we're talking about prior restraints on expression. [00:40:39] Speaker 05: And this is different from that sort of case. [00:40:42] Speaker 05: I think for at least two reasons. [00:40:44] Speaker 05: The first is that no one is telling Mr. Atiba what he can say. [00:40:48] Speaker 05: Like put aside the existence of the day pass program entirely for a moment. [00:40:53] Speaker 05: This is just about entering the White House. [00:40:55] Speaker 05: It's not saying you can't engage in sort of [00:40:58] Speaker 05: or First Amendment activity. [00:41:00] Speaker 05: But then layer on that the fact that the day pass program is available. [00:41:04] Speaker 05: And then you recognize that Mr. Atiba still can enter the White House. [00:41:10] Speaker 05: And that is further weakening any First Amendment interests that might be at play here. [00:41:15] Speaker 05: On that point, I want to return to an issue that [00:41:19] Speaker 05: The court was discussing earlier with my colleague about the burden on entering with a day pass and this 45 minute issue. [00:41:26] Speaker 05: If you look in the record, it's ECF 17-2. [00:41:29] Speaker 05: This is an email from the press office to Mr. Atiba explaining that the escorts [00:41:34] Speaker 05: To enter the press facilities are available at the top of every hour when the White House is open to journalists. [00:41:41] Speaker 05: So, you know, eight o'clock, nine o'clock, 10 o'clock, 11 o'clock, et cetera. [00:41:45] Speaker 05: So this 45 minute issue is only going to arise if a journalist doesn't just plan his arrival for a time. [00:41:51] Speaker 05: when an escort is available. [00:41:53] Speaker 03: And so if you show up, you know, when the escort is there, the White House... Is there ever sort of an emergency snap, like press briefing, like something has happened, let's like do it right now, or is there always enough notice for this to work? [00:42:07] Speaker 05: That's not in the record, Your Honor, and I don't want to represent, you know, that that doesn't happen. [00:42:11] Speaker 05: Just like as a news consumer, my understanding is that generally they're announced in advance. [00:42:16] Speaker 03: The West Wing. [00:42:17] Speaker 05: Exactly, exactly. [00:42:19] Speaker 05: But on the summary judgment record, stepping away from the West Wing, I think what I would say is that Mr. Atiba, and I think counsel confirmed this, [00:42:27] Speaker 05: hasn't pointed to a time when he has actually been unable to access a White House press briefing because of this fairly limited requirement. [00:42:39] Speaker 05: And again, I don't think that's in the record. [00:42:41] Speaker 05: But even assuming that is true, if Mr. Atiba plans ahead, shows up at the top of the hour when an escort is available, then that problem shouldn't logically arise. [00:42:52] Speaker 05: But of course, this question of whether or not there is a First Amendment injury is really only the first question. [00:42:58] Speaker 05: And we're delighted if the court disposes of this case at that step. [00:43:04] Speaker 05: But it can also dispose of this case by just saying that what Congress has been doing for 136 years [00:43:08] Speaker 05: perfectly reasonable way of doing this, what the White House has been doing for 50 odd years. [00:43:13] Speaker 03: Is that perfectly reasonable? [00:43:14] Speaker 03: On the nature of the injury, though, there doesn't seem to be a lot of case law that has said something like this is de minimis and not cognizable. [00:43:21] Speaker 03: And certainly nothing binding. [00:43:22] Speaker 03: I don't see anything from the Supreme Court or the DC Circuit that presents an analytical framework that says, this is so de minimis, we're not even going to consider it a First Amendment burden. [00:43:33] Speaker 05: I think that's fair. [00:43:35] Speaker 05: Conversely, you know, as we point out in our brief, I don't think this court has said the converse, which is to say that this court's cases and Cheryl and Karam have dealt with a complete loss of access to the White House. [00:43:47] Speaker 05: That's not the case here. [00:43:48] Speaker 05: And actually, if I could return to that point very briefly, I [00:43:51] Speaker 05: In Mr. Atiba's reply brief, he suggests that Mr. Karam in the Karam case could have continued to access the White House with a day pass. [00:43:59] Speaker 05: I don't think that's accurate. [00:44:00] Speaker 05: The complaints in the Karam case alleges that he wasn't sure if he would be able to use a day pass. [00:44:07] Speaker 05: And given the circumstances in that case where the White House had imposed a suspension as a punitive measure seems highly unlikely. [00:44:13] Speaker 05: And it's certainly very, very different from this case where every time he sought access through the day pass program, it's been granted. [00:44:25] Speaker 04: So. [00:44:27] Speaker 04: I think that your friend on the other side, just anticipating what they might say, would say that the denial of the hard pass [00:44:37] Speaker 04: is at least somewhat analogous to a prior restraint because if you can't get into the room, you can't gather news and you can't express yourself. [00:44:53] Speaker 04: You can't write an opinion or you can't, you know, if you miss the briefing, [00:45:01] Speaker 04: then you can't express yourself. [00:45:05] Speaker 04: So it's not a prior restraint in that we're banning you from saying something in particular, but it's a prior restraint, at least adjacent, because we're preventing you from access potentially to what we wanna talk about. [00:45:32] Speaker 04: right? [00:45:33] Speaker 04: So what's what's the response to to that argument? [00:45:39] Speaker 05: So I think the Supreme Court's prior restraint cases are generally focused on sort of two features of the restriction. [00:45:47] Speaker 05: One is it is generally a content or viewpoint based restriction. [00:45:52] Speaker 05: That's not alleged here. [00:45:53] Speaker 05: Second, it is, as your honor noted, a restriction on what you can say. [00:45:59] Speaker 05: And that is not alleged here. [00:46:00] Speaker 05: It is, you know, at most a regulation of when you can [00:46:04] Speaker 05: enter the White House, which is not itself an expressive activity. [00:46:08] Speaker 05: But even if the court doesn't buy what I'm selling on those two points, then you get back to the fact that we have the day pass program, which Mr. Attiba I think acknowledges has been made available to him every time that he has sought to use it. [00:46:20] Speaker 05: And so [00:46:22] Speaker 05: Those things in combination bring this case really quite far away from the Supreme Court's sort of classic prior restraint cases where it's like, no, you may not speak on this topic on pain of punishments. [00:46:34] Speaker 05: Like, of course, we have really strong procedural requirements in that sort of restriction because that is a core First Amendment value that you not be limited in what you can say. [00:46:45] Speaker 05: That's just not what's happening here for a number of reasons. [00:46:48] Speaker 04: Well, let's suppose the policy is we're not giving hard passes. [00:46:53] Speaker 04: to CNN, any CNN correspondence. [00:46:56] Speaker 04: We're not giving hard passes to any MSNBC or Fox. [00:47:02] Speaker 04: They pick one or more of those and say, none of them gets hard passes. [00:47:08] Speaker 04: They can get day passes. [00:47:11] Speaker 04: And the evidence is that they can get day passes. [00:47:17] Speaker 04: They don't miss any briefings. [00:47:20] Speaker 04: But they have to go the day pass route rather than the hard pass route. [00:47:26] Speaker 04: Does there are no First Amendment violation there? [00:47:31] Speaker 05: I think the premise of your honor's question, if I'm understanding it correctly, is that there is viewpoint discrimination motivating selection of outlets. [00:47:39] Speaker 05: Is that correct? [00:47:39] Speaker 04: Well, we don't know. [00:47:40] Speaker 04: They just say, you know, we just believe that we're not going to allow any of those three, you know, any of the correspondence from those three networks to have hard passes anymore. [00:47:55] Speaker 04: They just have to go to day pass. [00:47:57] Speaker 05: So without knowing more, if the White House had a reason for doing it that was reasonable and they weren't engaged in viewpoint discrimination, they weren't saying they don't like the tenor of the coverage, then no, it's not obvious to me that there would be a First Amendment injury. [00:48:12] Speaker 05: Now, Supreme Court's cases make really clear that viewpoint discrimination is its own sort of species of evil. [00:48:18] Speaker 05: And so if there were viewpoint discrimination going on, my answer would be very different. [00:48:24] Speaker 05: But again, that's just not what's alleged in this case. [00:48:27] Speaker 05: Mr. Attiba has abandoned any allegation. [00:48:30] Speaker 05: There's viewpoint discrimination going on here. [00:48:34] Speaker 04: Judge Rogers, do you have any questions? [00:48:39] Speaker 02: I guess not, other than to observe we're not in 1859. [00:48:43] Speaker 02: And so the fact that it's been going on all those years, I don't know how much that persuades me except to the extent that the burden is on the challenger to convince us that [00:49:06] Speaker 02: there's something wrong with what's going on. [00:49:09] Speaker 02: And that's where it's difficult here. [00:49:19] Speaker 02: I have been concerned about the fact that we don't know what will happen with the delay in getting the Senate or the House to act. [00:49:36] Speaker 02: where how the Supreme Court views this in terms of is this de minimis or is it significant, substantial in terms of a First Amendment injury or is it just going to take the view that [00:50:03] Speaker 02: You know, courts have no role in saying how the House or Senate run their bodies. [00:50:11] Speaker 02: And to some extent, that would be true with the right house press corps. [00:50:16] Speaker 02: It's just a general observation because the arguments are coming to us. [00:50:20] Speaker 02: Look, it's been done all these years. [00:50:22] Speaker 02: He's getting in. [00:50:26] Speaker 02: If he shows up on time, there'll always be an escort. [00:50:30] Speaker 02: What's the issue? [00:50:32] Speaker 02: It's a limited space. [00:50:36] Speaker 05: So if I may, Your Honor, I think to try to take those two points in order on the fact that this has been the system for a long time, that point isn't relevant in a vacuum. [00:50:45] Speaker 05: I'm not trying to stand here and say, well, we've been doing this for a long time. [00:50:48] Speaker 05: Therefore, we can keep doing it. [00:50:50] Speaker 05: I think the history, though, is especially relevant because [00:50:54] Speaker 05: Supreme Court's cases tell us that we can look to well-established practice to know if the criteria are sufficiently clear. [00:51:01] Speaker 05: And so when there is this long history of the congressional galleries applying these criteria in a fair, reasonable, viewpoint-neutral way, that history suggests that there isn't a constitutional problem here, or it's at least further evidence that there isn't a problem here. [00:51:18] Speaker 05: Then on the point about the delay with the galleries, [00:51:22] Speaker 05: You know I think it's a little bit difficult for me to stand here and explain you know what the status of the application before the Senate gallery is obviously that's pending with the Senate not with the executive branch. [00:51:34] Speaker 05: Just as a layperson, as I stand here, it's not obvious to me that Mr. Atiba necessarily qualifies under the Senate rules. [00:51:44] Speaker 05: And that's because, again, it is just not obvious to me that Today News Africa publishes daily, nor is it obvious that Mr. Atiba is a full-time paid correspondent for that irregularly updated publication. [00:51:59] Speaker 05: So it is certainly possible that's what's going on here. [00:52:01] Speaker 05: I don't want to speculate more than I am. [00:52:03] Speaker 05: But I don't think the court needs to be that concerned, again, because there isn't that history of discriminatory application here. [00:52:11] Speaker 05: The evidence suggests that this is a way that works of establishing a congressional press corps and a White House press corps. [00:52:17] Speaker 02: I appreciate your responses, counsel. [00:52:22] Speaker 02: And I just want to say that in my lifetime, the nature of press coverage has changed dramatically. [00:52:30] Speaker 02: All right? [00:52:32] Speaker 02: So we're talking about rules that were set up in a very different press context. [00:52:42] Speaker 02: And Mr. Atiba is part of that new, and by new I mean what, 40 years nature and all the podcasts, et cetera. [00:52:59] Speaker 02: So what is the credential [00:53:03] Speaker 02: White House press corps person is, it's just interesting to consider. [00:53:11] Speaker 02: And then the delay, I suppose the burden is on him to show more than incidental inconvenience. [00:53:24] Speaker 04: That would be our view, yes, Your Honor. [00:53:26] Speaker 02: Yeah. [00:53:27] Speaker 02: Thank you. [00:53:29] Speaker 04: Can you help me just understand the escort policy? [00:53:35] Speaker 04: So if you have a day pass, you have to be escorted to the briefing room, right? [00:53:42] Speaker 04: To the press area, as I understand it. [00:53:44] Speaker 04: To the press area. [00:53:45] Speaker 04: And what about once the press conference is over? [00:53:50] Speaker 04: Do people with day passes, do they have to be escorted [00:53:58] Speaker 04: you know, once they leave the press area, they have to be escorted off the grounds or can they mill about or mill around in the White House? [00:54:08] Speaker 05: As it's explained in the record and as I understand it, the escort requirement is applying on the entrance into the building. [00:54:16] Speaker 05: I don't understand there to be a separate escort requirement beyond that, at least based on what is in the record. [00:54:22] Speaker 04: So if that's the case, I mean, in your briefing you talk about [00:54:28] Speaker 04: Well, this is one way for national security, et cetera, purposes. [00:54:38] Speaker 04: The distinction between who has a hard pass and who has a day pass, the people who have hard passes essentially get more vetting. [00:54:48] Speaker 04: And that's why they can enter unescorted. [00:54:57] Speaker 04: But the people with day passes don't necessarily have as much vetting, so they can get in, but it's only with an escort. [00:55:07] Speaker 04: But if the escort is only walking them to the room, but then they can roam around the White House grounds after the briefing is over, then doesn't that just kind of poke, make Swiss cheese out of the argument that [00:55:25] Speaker 04: somehow having the hard passes is important for security purposes? [00:55:31] Speaker 05: I don't think so, Your Honor. [00:55:32] Speaker 05: The hard pass is a longer term credential. [00:55:36] Speaker 05: It lasts under the current policy for a year. [00:55:38] Speaker 05: Whereas with a day pass, you don't need to apply at least every Sunday nights or every day if you choose to do it that way to get access to the White House. [00:55:47] Speaker 05: And so the White House has determined that it's perfectly reasonable to have more criteria for this longer term credential. [00:55:55] Speaker 03: But why is it reasonable to require an escort to get to the briefing room but not to leave the briefing room? [00:56:01] Speaker 05: Again, I don't want to say too much about what's required to leave the briefing room. [00:56:04] Speaker 05: That's just not in the record. [00:56:06] Speaker 05: I don't want to get beyond the bounds of that, as I say. [00:56:08] Speaker 03: Is it possible that you actually need an escort to leave the briefing room? [00:56:11] Speaker 05: I have no reason to think that. [00:56:12] Speaker 05: I just don't think it's addressed by the record. [00:56:14] Speaker 05: And so I'm nervous about speculating about things that aren't described in the record. [00:56:20] Speaker 05: But I think the answer to the court's question, as I understand it in any case, is why have these requirements for the hard pass that don't exist for the day pass? [00:56:30] Speaker 05: And I think the answer to that is just before the White House is going to give a longer term credential, it doesn't require this daily or weekly application. [00:56:38] Speaker 05: It makes sense to be a little bit more demanding. [00:56:42] Speaker 03: I understood the question not to be having different credentials for the hard pass versus the day pass. [00:56:49] Speaker 03: I understood the question to be, why is this a reasonable burden if it's not imposed on both ends of the press conference? [00:57:00] Speaker 05: I'm sorry, the burden being? [00:57:01] Speaker 03: The burden being, why do you have to wait 45 minutes for an escort if after the briefing [00:57:08] Speaker 03: You can, as Judge Wolkin said, wander about freely in the West Wing. [00:57:12] Speaker 05: Well, I don't think you can wander about freely in the West Wing. [00:57:14] Speaker 05: I mean, journalists are still subject to conduct policy that makes clear, you know, you don't really allow it. [00:57:19] Speaker 03: You can't put an escort on the back end. [00:57:22] Speaker 03: Why? [00:57:22] Speaker 03: Why is that reasonable? [00:57:23] Speaker 03: Because then that 45-minute burden doesn't seem to make sense. [00:57:27] Speaker 05: I think as the as the case comes to this court, the question is just whether the requirements for the hard pass are reasonable. [00:57:34] Speaker 05: And, you know, for all the reasons I'm trying to articulate, they are. [00:57:36] Speaker 03: Well, maybe the answer is it's not in the record what happens at the end of the briefing. [00:57:40] Speaker 05: Well, and again, we're here on summary judgments. [00:57:42] Speaker 05: I don't think that Mr. Attiba has developed the argument or the evidence with respect to that question about what happens. [00:57:48] Speaker 03: Can you just give me your best response to your colleague on the other side's argument that on its face, the requirement that the paid correspondent has to require on-site access to congressional members and staff, why is that unreasonable in the context of trying to get a White House? [00:58:05] Speaker 05: So I know you're on arrest. [00:58:06] Speaker 05: For one answer, I'm going to give you two. [00:58:08] Speaker 05: One, I'm just not sure it's squarely presented here. [00:58:11] Speaker 05: I point the court to JA 40. [00:58:12] Speaker 05: This is Mr. Atiba's application for a Senate credential, where he says, we are thrilled to inform you that Mr. Atiba will now be extending his coverage to include the Senate and the House of Representatives. [00:58:23] Speaker 05: So he has told the Senate he would like to cover it. [00:58:27] Speaker 05: Beyond that as to as to why it would be reasonable in the abstracts the White House has made a very reasonable decision here that it does not want to be in the in the business of deciding you know which journalists are sufficiently. [00:58:42] Speaker 05: you know, bona fide of repute, non-lobbyists, et cetera. [00:58:45] Speaker 05: It just does not want to be in that business. [00:58:47] Speaker 05: And so it's very logical for the White House to say, well, you know, who else does this credentialing? [00:58:52] Speaker 05: Who is kind of like the White House and might be able to do this? [00:58:57] Speaker 05: And so it landed on the other two branches of government, Supreme Court and Congress. [00:59:01] Speaker 05: And again, the system has been working. [00:59:04] Speaker 05: There is no evidence that White House reporters aren't able to get these credentials. [00:59:08] Speaker 05: That's how we have a body [00:59:10] Speaker 05: of White House correspondents. [00:59:11] Speaker 03: But do you agree, though, that in delegating this task to this committee, it's as if the White House is requiring these credentials? [00:59:22] Speaker 05: I'm sorry, as if it's requiring which credentials? [00:59:24] Speaker 03: So the White House, like Congress, is delegating the task of credentialing to this committee. [00:59:31] Speaker 03: And so this committee is like their agent. [00:59:33] Speaker 03: So whatever rules this committee imposes are rules imposed by the White House, aren't they? [00:59:39] Speaker 05: I don't think it's fair to say that the congressional committees are acting as an agent of the I wouldn't even put it that way. [00:59:47] Speaker 05: You know, one of the points we made in our brief, for example, is that to qualify under the under the White House policy, like you need to be assigned to cover the White House. [00:59:55] Speaker 05: And so independent publications decide which of their journalists are going to be assigned to cover the White House. [01:00:01] Speaker 05: But that doesn't mean that the editors of the New York Times or the Washington Post are acting as the agents of the White House when they make those coverage decisions. [01:00:09] Speaker 05: It's just a simple objective fact. [01:00:11] Speaker 05: Are you credentialed by Congress or not? [01:00:14] Speaker 05: And it's reasonable to look to that because Congress has been in the business of doing this credentialing for well over a century. [01:00:23] Speaker 05: I'm happy to answer any other questions or just ask the court to affirm the judgment of the district court. [01:00:27] Speaker 04: All right, we have your argument. [01:00:28] Speaker 04: Thank you. [01:00:29] Speaker 04: Thank you. [01:00:30] Speaker 04: All right, Mr Dixon, your your time was up, but we'll give you three minutes in rebuttal. [01:00:38] Speaker 06: Thank you, your honor. [01:00:39] Speaker 06: I'd like to address first the argument that this is constitutional because it's been happening for a long time. [01:00:45] Speaker 06: Um, [01:00:47] Speaker 06: Obviously, this is not a founding era practice. [01:00:49] Speaker 06: It started in 1888, not 1700s. [01:00:51] Speaker 06: This is not like March Against Chambers where the Congress that adopted the Establishment Clause opened with legislative prayer. [01:00:58] Speaker 06: It started 100 years later. [01:01:00] Speaker 06: Obviously, there's a concept in our jurisprudence of constitutional liquidation where ambiguous provisions can be given meaning under Federalist 37. [01:01:10] Speaker 06: But the case law establishes that when we're talking about liquidation, what we're talking about is structural provisions of the Constitution or separations of powers like the Noel Cannon case or like the pocket veto case. [01:01:22] Speaker 06: This is a case involving First Amendment rights. [01:01:24] Speaker 06: And in that setting, the Supreme Court, to my knowledge, and certainly not in the briefing, has decided that liquidation is an appropriate concept. [01:01:33] Speaker 06: Moreover, since 1975, individuals have been unable to challenge this press credentialing regime under this court's decision in Consumer's Union. [01:01:44] Speaker 06: And so it's categorically impossible or inappropriate to say that the citizenry has acquiesced [01:01:52] Speaker 06: in this regime because since 1975, the citizenry has been unable to sue over it because Congress, the Congressional Press Gallery process is immune from suit under the speech or debate clause. [01:02:08] Speaker 06: The government, as I understand them, they seem to admit that viewpoint discrimination in the allocation of hard passes would give rise to a First Amendment injury. [01:02:20] Speaker 06: I don't understand how if that admission is on the books, which it is in footnote five of their brief, they can say that any other types of reasons for denying a hard pass could not give rise to injury. [01:02:32] Speaker 06: Either it is or it isn't. [01:02:34] Speaker 06: And the government has admitted that it is. [01:02:38] Speaker 06: It is true, as my friend points out that there is no evidence in the record anyway of Mr. Tiba missing a meeting. [01:02:47] Speaker 06: But again, I would emphasize that this is a facial challenge. [01:02:51] Speaker 06: And our argument is that because of that possibility and the real possibility that could happen by virtue of the delay, that we don't need to establish the existence of actual injury. [01:03:03] Speaker 06: I would also point out that the White House... I'm sorry, can you respond to that? [01:03:07] Speaker 03: Because I think your friend on the other side said that your argument that the requirement that the correspondent must require onsite access to congressional members and staff is not properly raised because your client said he would cover the House and the Senate. [01:03:24] Speaker 06: He did in his press gallery application say that he was wanting to cover the House and the Senate. [01:03:31] Speaker 06: But again, he should not have to make the showing that that is necessary for him to cover the White House. [01:03:37] Speaker 03: So was this litigated before Judge Beans? [01:03:40] Speaker 06: This precise question, I don't recall it being raised below, Your Honor, no. [01:03:47] Speaker 04: Can you just, I'm sorry, clarify, you're saying that the government has conceded that there's an injury [01:03:54] Speaker 06: That's our position. [01:03:55] Speaker 06: The government does not come out and say that. [01:03:58] Speaker 04: And what would we look to to find such a concession? [01:04:04] Speaker 06: In footnote five of the government's brief, they admit that the White House cannot dole out hard passes based on the viewpoint of the journalist. [01:04:14] Speaker 06: And so if a hard pass can be denied based on the viewpoint of the journalist giving rise to First Amendment injury, then any other reason for denial would constitute a First Amendment injury as well. [01:04:24] Speaker 06: We might not prevail, but we would at least have First Amendment injury based on the failure to issue the hard pass. [01:04:33] Speaker 06: As far as the necessity of a hard pass, I would also point out that the White House Correspondents Association took the position in prior litigation in the brief that we submitted. [01:04:42] Speaker 06: It's traditionally noticed that the hard pass is necessary for any White House correspondent to cover the White House. [01:04:49] Speaker 06: And then finally, Your Honor, the White House, my friend on the other side says that the White House doesn't want to do prudentialing itself. [01:04:58] Speaker 06: Again, we don't have a problem with that. [01:05:00] Speaker 06: The problem is when it's allocated to an entity that makes [01:05:06] Speaker 06: that has unbridled discretion as part of its criteria, that make coverage of a different branch of government part of its criteria. [01:05:15] Speaker 06: If the White House wants to outsource. [01:05:17] Speaker 03: Interestingly, it seemed to me, like in my last exchange with your colleague on the other side, he seemed to suggest that [01:05:25] Speaker 03: The White House criteria just is, are you credentialed or not by the Senate gallery? [01:05:30] Speaker 03: And we don't look behind how the Senate gallery is doing that and attribute that to the White House because they are not an agent or a delegate in that sense of the White House. [01:05:42] Speaker 03: It's just like a box you check off. [01:05:44] Speaker 03: Like, are you working for a bona fide? [01:05:48] Speaker 03: publication, and are you credentialed? [01:05:50] Speaker 03: And we don't look behind that. [01:05:52] Speaker 03: What does that do to your argument about unbridled discretion? [01:05:56] Speaker 03: I'm interested in how you conceptualize how the White House is responsible for what the committee does and what this does to your argument if [01:06:04] Speaker 03: In fact, we don't look behind this box check. [01:06:08] Speaker 03: Are you credentialed or not? [01:06:09] Speaker 06: The same way that Judge Bates did below, which is to say it is constitutionally unreasonable for the White House to adopt a program that allows the decision to be made in the unbridled discretion of a congressional press gallery. [01:06:23] Speaker 06: It is true that the White House is not the one making the decision as to qualifications for the congressional press gallery. [01:06:30] Speaker 06: But it is unconstitutionally unreasonable for them to adopt a regime that allows the infection of this process with the unbridled discretion doctrine. [01:06:40] Speaker 06: And then finally, Your Honor, if I may, I didn't answer your question very well earlier about the Senate rules. [01:06:48] Speaker 06: You were pointing out that the Senate, the [01:06:54] Speaker 06: bonafide correspondence of repute in their profession under such rules as the Standing Committee of Respondents shall prescribe. [01:07:02] Speaker 06: This is not in the JA, but it is in the record, well, Judge Bates admitted it pursuant to our request for judicial notice. [01:07:13] Speaker 06: The House Periodical Press Gallery Rule 1, and I'm happy to provide your honors the internet citation for this, [01:07:22] Speaker 03: Was this created by the same body? [01:07:25] Speaker 06: This was created by the House periodical press credentialing body. [01:07:32] Speaker 03: So why is that relevant? [01:07:33] Speaker 06: Well, I'm going to read it, Your Honor, because it informs, I believe, the Senate daily press gallery rules, because it doesn't contain that same verbiage. [01:07:42] Speaker 06: I mean, the concept is these rules are pretty uniform across House, across Senate, across the press galleries. [01:07:49] Speaker 06: And so the periodical press gallery says, persons eligible for admission to the periodical press galleries must be bona fide resident correspondents of reputable standing. [01:08:01] Speaker 03: It doesn't be relevant only to the extent that the Senate gallery relies on it. [01:08:05] Speaker 03: And there's nothing in the record that says they do. [01:08:07] Speaker 06: There's nothing in the record that says they do, your honor. [01:08:09] Speaker 06: But my point in citing this is to say that these rules are generally viewed as saying about the same thing and the language in the periodical press gallery. [01:08:19] Speaker 03: We're reviewing what the Senate gallery does just because there's another set of rules that they look at it. [01:08:25] Speaker 03: I just don't see how that's fair enough. [01:08:29] Speaker 04: All right. [01:08:29] Speaker 04: Thank you. [01:08:30] Speaker 04: We'll take your case under advisement.