[00:00:00] Speaker 00: Place 125-5109. [00:00:01] Speaker 00: Associated Press vs. Taylor Budowich in his official capacity as White House Deputy Chief of Staff head out the balance. [00:00:10] Speaker 00: Mr. Roth for the economics, Mr. Tobin for the FOAs. [00:00:14] Speaker 04: Good morning, Mr. Roth. [00:00:16] Speaker 02: Good morning. [00:00:17] Speaker 02: May it please the court, Yakov Roth on behalf of defendants. [00:00:21] Speaker 02: Your Honours, the issues presented here are largely the same as the issues that were addressed by the state panel a few months ago. [00:00:28] Speaker 02: And both the majority and the dissent on the state panel laid out pretty comprehensively the conflicting approaches to how to apply the First Amendment in this unique context. [00:00:40] Speaker 02: We obviously think the majority got it right. [00:00:42] Speaker 02: And so we would ask this court to now vacate the injunction for the same reasons as the court previously stayed the injunction. [00:00:51] Speaker 03: Do you think the state panel got it entirely right? [00:00:56] Speaker 02: I assume you're not giving up on the East Room. [00:00:59] Speaker 02: Not giving up on the East Room, but I think the state panel's analysis and sort of analytical approach to the issue was correct. [00:01:06] Speaker 02: I think the way that shakes out for the East Room, we can talk about, but sort of the overall approach that the court took to form analysis and the other aspects of the doctrine, we think the court got it right. [00:01:18] Speaker 04: Do you think that this was a close question? [00:01:22] Speaker 02: I think it's in some ways a novel question, because most of the forum cases in the law have really dealt with the difference between a public forum and a non-public forum. [00:01:34] Speaker 02: And there are very few cases that address the distinction between a non-public forum and things that are not a forum at all. [00:01:41] Speaker 02: So I think it was a novel question in that sense. [00:01:45] Speaker 02: But I think the way the court approached that distinction was the right way to do it. [00:01:51] Speaker 05: Ms. [00:01:51] Speaker 05: Roth, so on the East Room, in your briefing, we make almost no specific arguments about the East Room. [00:01:57] Speaker 05: And the East Room wasn't addressed by the state panel. [00:02:01] Speaker 05: And in many ways, the East Room is quite different from the Oval Office and Air Force One, because it's used for many different purposes, sometimes with the president, sometimes without the president. [00:02:11] Speaker 05: There are all kinds of events that happen in the East Room. [00:02:14] Speaker 05: So I was actually wondering if you were just [00:02:18] Speaker 05: you know, maybe not forfeiting exactly, but not really pressing the East Room argument. [00:02:25] Speaker 05: Maybe the East Room is more like the Brady Press Room. [00:02:28] Speaker 02: Your Honor, my colleague who argued the stay, I think, said it was in between. [00:02:32] Speaker 02: And I think he's right that it is in between. [00:02:35] Speaker 02: Now, it hasn't been the focus of the briefing, frankly, by either side. [00:02:39] Speaker 02: The case has largely been focused, as it was in the district court, on the Oval Office and the comparable spaces. [00:02:45] Speaker 02: I think the similarities between the East Room and those spaces are essentially two. [00:02:51] Speaker 02: Number one, we don't have indication in the record that the East Room has been set aside for private speech. [00:02:59] Speaker 02: much like the Oval Office. [00:03:00] Speaker 02: We don't have that. [00:03:01] Speaker 02: Whereas we do have indication that the Brady briefing room and the press area as a whole was designated specifically for the press to do their work, including their own speech. [00:03:12] Speaker 02: So I think there's a difference between I think in that respect, the East Room is similar to the other spaces. [00:03:19] Speaker 05: the fact, though, that the East Room really is used for myriad purposes. [00:03:22] Speaker 05: I mean, the Brady Press Room is used largely in a similar way for press briefings and questions with members of the administration. [00:03:29] Speaker 05: I mean, the East Room, I mean, if we were to reach the East Room, would we have to remand for further factual finding? [00:03:36] Speaker 05: I think it's very hard to have a single rule for the East Room, given its myriad purposes, which sometimes involve the president and sometimes do not. [00:03:45] Speaker 05: as my understanding, based on my experience. [00:03:48] Speaker 02: Your honor, I think that's a fair comment. [00:03:50] Speaker 02: There is just not as much in the record on the way the East Room is generally used. [00:03:54] Speaker 02: The focus, again, has been much more on the other spaces. [00:03:57] Speaker 02: Now, I do think the AP could have, in their brief, said, even if you don't agree with us on the Oval Office, we still win on the East Room. [00:04:06] Speaker 02: And I don't think they haven't litigated that way either. [00:04:09] Speaker 02: So I think neither side has really tried to break it apart. [00:04:11] Speaker 05: Let's take the East Room out of this litigation. [00:04:13] Speaker 02: Well, I do think that the most important aspects of this litigation do relate to the Oval Office and the spaces that are like the Oval Office. [00:04:20] Speaker 04: Can I ask you about standard of review, which is abuse of discretion, right? [00:04:28] Speaker 04: Are you familiar with Ashcroft versus ACLU and Gordon versus Holder? [00:04:35] Speaker 04: Ashcroft versus ACLU is a Supreme Court case from around, I think it's around 2012. [00:04:43] Speaker 04: No, earlier, 2004, Gordon v. Holder is from our court in 2013. [00:04:54] Speaker 04: But they're both cases involving review of preliminary injunctions entered against the government where there were constitutional claims due process or First Amendment claims. [00:05:11] Speaker 04: in the Supreme Court in Ashcroft v. ACLU said that in applying the abuse of discretion standard of review, if the district courts, if it's a close question and there's a reasonable argument that the district court got it right, you leave it in place and then you [00:05:38] Speaker 04: decide the question ultimately after there's been a full record and if a permanent injunction is entered. [00:05:49] Speaker 04: But what you don't do at the preliminary injunction review stage is decide those close questions where the record hasn't been fully developed. [00:06:02] Speaker 04: And we held the same in Gordon v. Holder. [00:06:07] Speaker 04: So why isn't this that case? [00:06:11] Speaker 02: So, Your Honor, I'm not familiar with the cases. [00:06:13] Speaker 02: I don't think the AP has made that argument here. [00:06:16] Speaker 02: At least I don't remember that from the briefing. [00:06:17] Speaker 04: We have to get the standard of review correct. [00:06:19] Speaker 02: For sure. [00:06:20] Speaker 04: And we have to follow the Supreme Court precedent, don't we? [00:06:24] Speaker 02: You do. [00:06:24] Speaker 02: The parties, of course, make their arguments, and the court responds to those arguments. [00:06:28] Speaker 04: I think, ordinarily- The party argues the incorrect standard of review. [00:06:32] Speaker 04: We apply that standard of review. [00:06:34] Speaker 02: And if the parties agree on it, sometimes the court will look past the issue and say the parties agree this is the standard. [00:06:41] Speaker 02: I think everyone agrees the standard is abuse of discretion. [00:06:43] Speaker 02: But abuse of discretion includes de novo review on issues of law. [00:06:47] Speaker 02: And I think the dispositive issues here are issues of law. [00:06:51] Speaker 02: How do we classify the Oval Office for purposes of form analysis? [00:06:55] Speaker 02: And more generally, is this the type of context where viewpoint neutrality is required? [00:07:01] Speaker 02: Or is this like the various other contexts where we allow the government to engage in viewpoint discrimination? [00:07:08] Speaker 02: That's the legal question that I think controls the case. [00:07:12] Speaker 02: I think the review on that question would be de novo. [00:07:15] Speaker 02: And again, we think the state panel got that question right. [00:07:18] Speaker 04: Isn't it a close question? [00:07:20] Speaker 04: I mean, there was a dissent. [00:07:22] Speaker 04: The stay level, there were two judges on whether we should review that en banc, who indicated that they believe that the stay panel may not have gotten it right. [00:07:36] Speaker 04: But at that point, it's not the point to go en banc. [00:07:41] Speaker 04: So there are at least three judges. [00:07:44] Speaker 04: who believed that what the district court did was reasonable. [00:07:47] Speaker 04: Doesn't that make it a close question? [00:07:50] Speaker 02: Your honor, I'm not sure if the close question analysis is really a factual inquiry. [00:07:54] Speaker 02: Again, because I'm not familiar with those cases, but what they may have meant is if it's a factually close question, maybe we need more of a record. [00:08:01] Speaker 04: No, it didn't say factually. [00:08:03] Speaker 04: It said legally close. [00:08:05] Speaker 04: Close constitutional question. [00:08:09] Speaker 02: We think the answer is actually is clear as a matter of law. [00:08:14] Speaker 02: It's novel. [00:08:15] Speaker 02: It is not the scenario in which this arises is a novel scenario. [00:08:21] Speaker 02: But we think the court was correct. [00:08:22] Speaker 02: I'm not going to concede that it was close in that sense. [00:08:25] Speaker 02: I think it is novel. [00:08:26] Speaker 02: So not a lot of cases like this. [00:08:28] Speaker 02: But ultimately, the question is, when the president invites reporters into the Oval Office, is he creating a First Amendment forum? [00:08:35] Speaker 02: I think the answer to that is clearly not, because they are not being invited to engage in private speech. [00:08:41] Speaker 02: That makes it unlike all of the forum cases, including the non-public forum cases that the AP relies on. [00:08:48] Speaker 02: And because it is highly selective, [00:08:51] Speaker 02: the White House is inviting particular outlets into the Oval Office. [00:08:55] Speaker 02: It is not a situation, again, like all the non-public forum cases, where an area is being held open more generally to do a white group. [00:09:04] Speaker 04: Tell me about this in the retaliation context. [00:09:08] Speaker 04: Let's suppose when members of the public, families visiting from Kansas or whomever, seek to visit the White House, they go online, apply for the pass to do the White House tour in [00:09:31] Speaker 04: Once they run through all of that and they meet whatever those criteria are, the White House then reviews social media. [00:09:41] Speaker 04: And if a member of the group has criticized the administration, then their visitor pass is revoked. [00:09:53] Speaker 04: Does that violate the First Amendment retaliation? [00:09:59] Speaker 04: Is that a First Amendment retaliation claim? [00:10:02] Speaker 02: So Your Honor, I think that if the White House has a system where people, it's generally open for tours, but you have to meet certain basic eligibility criteria, that looks more like the briefing room, where it opens all bona fide journalists. [00:10:18] Speaker 02: And once the government opens it to all bona fide journalists, they can't then impose additional viewpoint discriminatory restrictions on entrance. [00:10:27] Speaker 02: But I think that's very different from invitations. [00:10:30] Speaker 02: If the president wants to invite into his office [00:10:32] Speaker 04: I'm not talking about this as far as a viewpoint discrimination forum analysis. [00:10:40] Speaker 04: I'm saying First Amendment retaliation. [00:10:42] Speaker 02: Oh, yes, Your Honor. [00:10:44] Speaker 02: But I don't think you can actually split them apart because I think if we're dealing with a context where viewpoint discrimination is permissible, then it doesn't really make sense to apply retaliation frameworks at all. [00:10:55] Speaker 04: I'm talking about, in my hypothetical, [00:11:00] Speaker 04: A family visiting from Kansas, and they are initially told you can come to the White House, here's your tickets. [00:11:09] Speaker 04: When they show up, they're told you can't come in because you criticize the administration on Facebook. [00:11:16] Speaker 04: Does that family have a retaliation claim under the First Amendment? [00:11:20] Speaker 02: I think if they do, it would be because this is a context where viewpoint discrimination is not permitted because it's been held generally open. [00:11:28] Speaker 02: I'm not sure that's the answer, but I think that if that family did have a claim, it would be because the analysis would be [00:11:37] Speaker 02: The White House has made this generally open. [00:11:38] Speaker 02: By making it generally open, it's essentially created a type of forum. [00:11:43] Speaker 02: Once it creates a type of forum, it can't discriminate based on viewpoint. [00:11:46] Speaker 02: And therefore, withholding that benefit based on viewpoint would constitute retaliation. [00:11:51] Speaker 04: That's not the way you argued it in your brief. [00:11:54] Speaker 04: The way that you argued the retaliation claim in your brief [00:12:00] Speaker 04: was that, well, there's no right to access the Oval Office or to be a part of the press pool. [00:12:09] Speaker 04: And because of that, there's no material adverse action that's happened against you for First Amendment retaliation purposes. [00:12:18] Speaker 02: Did I get that wrong, or is that- No, I think you're right. [00:12:22] Speaker 02: What we said is there's no materially adverse action in that contest. [00:12:26] Speaker 02: Can I give an example that I think may [00:12:28] Speaker 04: Well, I want you to stick with my hypo. [00:12:31] Speaker 04: So, family from Kansas, if they're not allowed to come in, is that a materially adverse action against them or not? [00:12:40] Speaker 04: I think probably it's not, Your Honor, but the point that I really want to make is that... So, then there's no First Amendment retaliation claim for the family from Kansas? [00:12:49] Speaker 02: I think that probably is correct. [00:12:51] Speaker 02: But the point that I want to emphasize, if I can, is that the viewpoint discrimination and viewpoint neutrality distinction can't be taken separate and independent from the retaliation framework. [00:13:06] Speaker 02: Think about, for example, a situation where you have a job that under Rutan, the government can make available only on a viewpoint discriminatory basis, a senior policymaking official. [00:13:18] Speaker 02: If somebody applies for that job and doesn't get it because they have publicly criticized the president, they couldn't say, oh, I have a retaliation claim. [00:13:27] Speaker 02: Because we all understand that's the type of benefit that can be withheld on a viewpoint discriminatory basis, even though in many, many contexts, not being hired for a job is going to count for a retaliation claim. [00:13:39] Speaker 02: You know, under Title VII. [00:13:40] Speaker 04: If we tell that a prisoner can't be transferred to another prison, [00:13:48] Speaker 04: his retaliation for exercising his First Amendment rights. [00:13:53] Speaker 04: Is that case wrong? [00:13:55] Speaker 04: Aren't we bound by that case? [00:13:57] Speaker 04: I think that's right. [00:13:58] Speaker 04: And I don't think prisoners have a right to reside in a particular prison, not be transferred. [00:14:02] Speaker 02: I don't think it's about whether they have a right. [00:14:04] Speaker 02: But I think that there is an I do think the government could not assign people to prisons based on viewpoint. [00:14:11] Speaker 02: And so because that is true, it is also true that they cannot retaliate based on viewpoint by transferring someone from one prison to another. [00:14:18] Speaker 02: But again, it comes back to, is this a context where we can grant or withhold a benefit based on viewpoint or not? [00:14:26] Speaker 02: If it is, then turning it into a retaliation claim, I think, doesn't add anything. [00:14:31] Speaker 02: And if it's not, then we're in the opposite position. [00:14:36] Speaker 04: So just so that we're clear, [00:14:39] Speaker 04: In your view, the White House can deny members of the public from visiting and taking a tour on the basis of viewpoint, and that's not a First Amendment retaliation. [00:14:56] Speaker 02: Your honor, I think that's probably right. [00:14:58] Speaker 02: But I think the distinction, the reason that case is different from this case is because in that case, and your honor's hypothetical, the White House is generally opening up the area to tours. [00:15:10] Speaker 02: And so there would be a better argument [00:15:12] Speaker 02: by that family, that by doing so, the government has created a type of forum that requires it to be neutral. [00:15:21] Speaker 04: Why does forum analysis have anything to do with it? [00:15:24] Speaker 04: What communication is the family engaging in when they do the White House tour? [00:15:28] Speaker 04: And Your Honor, in that sense, it's the same. [00:15:30] Speaker 02: So on that, I think there's two criteria that we're looking at when we're trying to figure out whether something is a non-public forum or not. [00:15:36] Speaker 02: One is, is it being open for private expression? [00:15:39] Speaker 02: And the other is, how restrictive or selective is the process? [00:15:42] Speaker 02: Those, to me, are the two criteria. [00:15:44] Speaker 02: I think Your Honor's hypothetical is stronger as to one and is similar to our case as to the other. [00:15:50] Speaker 02: So overall, it's a stronger case than AP has here. [00:15:54] Speaker 02: And how it shakes out. [00:15:56] Speaker 04: But the family from Kansas still loses in your view. [00:15:59] Speaker 02: I mean, if I had to take a position right now on that question, that's what I would say. [00:16:03] Speaker 02: But I think they have a better claim than the AP does. [00:16:06] Speaker 02: Woe to the public. [00:16:09] Speaker 04: Excuse me? [00:16:09] Speaker 04: Woe to the public. [00:16:10] Speaker 02: Well, if the president wants to invite particular people into the White House because of their political views, I think the president is allowed to do that. [00:16:19] Speaker 02: The president routinely invites Republicans and not Democrats into the Oval Office for ceremonies. [00:16:24] Speaker 02: Nobody thinks that he has to extend those invitations on a viewpoint neutral basis. [00:16:29] Speaker 02: And I think for the same reasons, he can invite favored reporters and not disfavored reporters to watch that ceremony in the Oval Office. [00:16:36] Speaker 04: So the district court found that the Associated Press, when they are operating as part of the press pool in the Oval Office on Air Force One at Mar-a-Lago, was engaging in communication, that they're practically live streaming, that they are communicating with their editors, asking questions, breaking news. [00:17:04] Speaker 04: found those things as a fact. [00:17:06] Speaker 04: I didn't see anywhere in your brief that you challenged those findings a fact. [00:17:10] Speaker 04: Correct. [00:17:11] Speaker 04: Do you challenge those or not? [00:17:13] Speaker 04: No. [00:17:14] Speaker 04: Okay, so none of those facts are challenged. [00:17:17] Speaker 02: We have not challenged those facts. [00:17:19] Speaker 04: So then why isn't that dispositive on the issue as to whether or not they are [00:17:28] Speaker 04: communicating, engaging in communication when they are part of the press. [00:17:34] Speaker 02: Your honor, I think they're engaging in communication. [00:17:36] Speaker 02: Our point is that that communication is not tethered to the physical place. [00:17:40] Speaker 02: So it may well be that when they're in the Oval Office, they're texting. [00:17:44] Speaker 02: They can also do the same thing an hour later when they leave. [00:17:47] Speaker 02: The purpose for which they're being invited in is to observe [00:17:52] Speaker 02: to have access to that information. [00:17:54] Speaker 02: And so we think for that reason, this case is better analyzed as an access to information case like Baltimore Sun and not a forum case where ordinarily with a forum, you are being invited in and the speech is happening in the forum and that is the purpose of the forum. [00:18:10] Speaker 04: So it is... So what about the Brady Press Room? [00:18:14] Speaker 02: So the Brady Press Room is part of a broader complex in the White House where the journalists and reporters are doing all sorts of speech activity. [00:18:22] Speaker 02: They're asking questions, they're doing interviews, they're typing up their stories. [00:18:25] Speaker 02: All of that is happening in that space, and that is what the space has been designated for. [00:18:30] Speaker 04: The district court found that they asked questions on Air Force One. [00:18:35] Speaker 04: They asked questions in the Oval Office. [00:18:38] Speaker 02: That's not the way the AP is litigating the case, though. [00:18:41] Speaker 02: They're disclaiming any interest in asking questions or speaking, because they recognize that when they go down that road, they are running into government speech interests on the other side. [00:18:52] Speaker 02: So they have not claimed they have a right to ask the question and have it be answered or have any sort of interactive exchange with the president. [00:18:59] Speaker 04: There's a difference between saying you have a right to have your questions answered and just acknowledging [00:19:07] Speaker 04: I mean, no one, when they're in the Brady Press Room, has a right to have their question answered. [00:19:12] Speaker 04: That's right. [00:19:12] Speaker 04: But what happens there is that they are observing whatever the president or the press secretary or whomever is saying. [00:19:22] Speaker 04: They're reporting on that. [00:19:23] Speaker 04: And then they may or may not ask a question. [00:19:25] Speaker 04: It may or may not get answered. [00:19:28] Speaker 04: Why isn't the exact same thing happening if you are part of the press pool and on Air Force One? [00:19:34] Speaker 02: So, Your Honor, there are two differences between the press area and briefing room on the one hand and the Oval Office and Air Force One on the other. [00:19:43] Speaker 02: One that we've talked about a little bit is, what is the designation of the space for? [00:19:48] Speaker 02: And I think the designation of the press area is much broader and encompasses a wider range of speech and private expression than the Oval Office. [00:19:58] Speaker 02: But the second is the selectivity. [00:20:00] Speaker 02: So the way the briefing room works in the press area is, as long as you meet a certain basic eligibility threshold, you're allowed in. [00:20:08] Speaker 02: And so that gets it into the non-public forum category under forum analysis. [00:20:13] Speaker 02: That is not true anymore, at least, of the Oval Office or Air Force One. [00:20:17] Speaker 02: That is by invitation only. [00:20:19] Speaker 02: The president is extending the invitation specifically to the people he wants to include. [00:20:24] Speaker 02: That is inconsistent with the notion of a forum. [00:20:28] Speaker 02: So I think that's one difference. [00:20:29] Speaker 04: I will say, though, but they are... You are saying that we are supposed to consider this based on the White House adopting a new and different approach for the press pool. [00:20:46] Speaker 04: But the district court didn't [00:20:51] Speaker 04: rely on that in entering the preliminary injunction, did it? [00:20:57] Speaker 02: I think it did, Your Honor. [00:20:58] Speaker 02: I think it's been conceded throughout that the President and the White House is allowed to change the sort of structure of the way the pool works and that nobody was challenging, for example, the insourcing [00:21:12] Speaker 02: of the selection. [00:21:14] Speaker 02: So it used to be done by the Correspondence Association and it's been outsourced to them to pick. [00:21:19] Speaker 02: White House brought that back in and said, we're going to decide day to day who we're inviting. [00:21:24] Speaker 02: And nobody has said that that's not allowed. [00:21:25] Speaker 02: And the whole case has been litigated on the premise that that much was permissible. [00:21:30] Speaker 02: So then we're at the point of analyzing what are the implications of that for form analysis. [00:21:35] Speaker 02: And that level of selectivity is inconsistent with any type of form. [00:21:40] Speaker 04: My point is that why does that make any difference on the legal question, whether it's the White House Correspondence Association or the White House itself designating who is in the press? [00:21:57] Speaker 02: Because, Your Honor, if the White House is choosing who to admit on a very selective and restrictive basis, [00:22:05] Speaker 02: then the forum principles, even from the non-public forum cases, don't apply. [00:22:12] Speaker 02: Because it is not a situation where it is being held open in any sense. [00:22:15] Speaker 02: It is purely a matter of invitation. [00:22:18] Speaker 02: And when it's a matter of invitation, we don't apply viewpoint neutrality principles. [00:22:22] Speaker 02: For example, the White House wants to hear from advocates on one side of an issue. [00:22:26] Speaker 02: It can invite them in to make a presentation. [00:22:28] Speaker 02: It doesn't have to let the other side in to make their presentation. [00:22:31] Speaker 02: So when you're dealing with that sort of invitation selectivity, we don't apply the same viewpoint neutrality rules as we do in forums, even non-public forums. [00:22:43] Speaker 04: So the White House could, for the annual Easter egg roll, send out invitations and send out invitations only to the members of the public whose speech it agrees with. [00:22:59] Speaker 04: and reject others, and there'd be no First Amendment problem in review. [00:23:06] Speaker 02: Your honor, I think that's clearly true. [00:23:07] Speaker 02: I mean, there are events all the time at the White House, parties, receptions, ceremonies, where the president is going to be and the White House is going to be inviting people based on political affiliation, where ordinarily under the First Amendment in many contexts, you can't discriminate based on political affiliation. [00:23:22] Speaker 02: But nobody's going to come up here, I don't think, and say, yeah, the president has to invite equal number of Republicans and Democrats to the Christmas party. [00:23:30] Speaker 02: That's because it's not a forum. [00:23:32] Speaker 05: Mr. Roth, can I ask you, in your brief, you talk about the fact that the injunction restricts the president from making his own decisions. [00:23:41] Speaker 05: The injunction here, though, is not at least formally directed at the president. [00:23:46] Speaker 05: I mean, is there. [00:23:46] Speaker 05: I mean. [00:23:50] Speaker 05: You know, if the staff, White House staff, were to follow the injunction, but the president chose to say, you know, I don't want you here in the Oval Office, what would be the consequence of that? [00:24:02] Speaker 05: I mean, is this injunction here effectively an injunction against the president? [00:24:07] Speaker 02: Well, I think it means that the White House staff can't follow the president's directives while also complying with the injunction. [00:24:14] Speaker 05: And so that is... So is that an injunction against the president? [00:24:18] Speaker 05: The government seems to perhaps allude to that argument, but not make that argument in a brief. [00:24:28] Speaker 02: I don't intend to be making that argument. [00:24:30] Speaker 02: I mean, there's this general rule that the courts don't enjoin the president directly in the execution of his duties. [00:24:37] Speaker 02: And the courts generally do that by just carving out the president from the scope of the injunction and telling everyone who implements the directives to follow the injunction. [00:24:46] Speaker 02: And nobody has a problem with that. [00:24:48] Speaker 05: Does that fiction really work when we're talking about White House staff who are directly working for the president who are [00:24:57] Speaker 05: assistance to the president, deputy assistance to the president. [00:25:00] Speaker 05: I mean, it might work in the context of an agency, much more removed from the White House. [00:25:06] Speaker 02: Well, it's certainly true that this is much closer to the president's own personal prerogatives and decision making. [00:25:13] Speaker 02: And so it is more sensitive in that way. [00:25:15] Speaker 02: And I think, as the state panel discussed a few months ago, leads to much more difficult compliance questions and administrability questions, because we start to get into [00:25:26] Speaker 02: debates, factual debates over why did the president choose A instead of B? [00:25:31] Speaker 02: How are we going to figure that out? [00:25:32] Speaker 02: Who are we going to call in to make that determination? [00:25:34] Speaker 02: So I think for all those reasons, this is more fraught than in the ordinary injunction. [00:25:39] Speaker 05: It seems AP can't really get the relief it wants without an injunction against the president, because the president controls who enters the Oval Office and Air Force One. [00:25:48] Speaker 05: And if the president says, I don't care what my press secretary says, I don't want AP on my plane, [00:25:54] Speaker 05: I don't see how the injunction can actually get AP what it wants. [00:26:00] Speaker 02: I just don't see how that works. [00:26:03] Speaker 02: It would lead to a lot of conflict within the White House, I think, is maybe your honor's point. [00:26:07] Speaker 02: We don't want the president's assistant. [00:26:09] Speaker 05: I think it would lead to conflict in the White House. [00:26:11] Speaker 05: I mean, if the president said, I don't want someone on my plane, I don't want someone in the Oval Office, my office, my personal office, I'm not sure. [00:26:19] Speaker 02: I take the point, your honor. [00:26:22] Speaker 04: Well, if that's the case, then why isn't any injunction against the cabinet secretary or any executive official problematic? [00:26:36] Speaker 04: Because the president could disagree and order the secretary of health and human services to, you know, grant that Medicaid exemption to that hospital when you don't care what the court says. [00:26:51] Speaker 02: I think the point that she was making was that these decisions that we're talking about are much closer to the president personally, right? [00:27:11] Speaker 02: He is in his office. [00:27:13] Speaker 02: He is getting on his plane. [00:27:14] Speaker 02: He is making decisions about what is happening in his immediate vicinity. [00:27:18] Speaker 02: And that is unique. [00:27:20] Speaker 02: I mean, we've seen a lot of injunctions over the last nine months, but this one is unique in how close it gets to the president's own space and this personal decision-making. [00:27:29] Speaker 05: Well, part of my argument is that either you can enjoin the president and tell him that he must let AP into his office or the president can decide who he lets into his office. [00:27:41] Speaker 05: It has to be one or the other. [00:27:42] Speaker 05: And it's not the same thing when you're talking about a cabinet secretary following the law or some statutory requirement. [00:27:52] Speaker 02: Well, Your Honor, thankfully, I think that even apart from that, the injunction doesn't work as a matter of law, because it gets the First Amendment principles wrong, and specifically gets wrong when we apply the principle of viewpoint neutrality and when we don't, and the line between a non-public forum and something that is not a forum at all. [00:28:12] Speaker 02: And for those reasons, we think the injunction should be reversed. [00:28:18] Speaker 03: Do you really want room by room, space by space, jurisprudence? [00:28:26] Speaker 03: That seems to me what this case is all about is access to the president. [00:28:32] Speaker 03: I don't know why if you start with the proposition, like the Oval Office hosts any number of different events, bill signing, press conferences, rallies, meeting with the head of state, and press might or might not be in there and the president gets to decide that. [00:28:53] Speaker 03: And it's really different if the event is moved from the Oval to Rose Garden or the East Room or somewhere else. [00:29:03] Speaker 03: And President Trump, Inauguration Day, had an event at the Verizon Center. [00:29:09] Speaker 03: I mean, I assume people who got those tickets were supporters and not opponents. [00:29:15] Speaker 03: And if he did a press conference, [00:29:18] Speaker 03: Those events, probably the reporters he's talking to are supporters rather than opponents. [00:29:24] Speaker 02: Your honor, I don't want to be too categorical because I do think part of the analysis turns on how the government is itself treating the space and treating access to the space. [00:29:32] Speaker 02: So if the president did a briefing in the Brady briefing room, [00:29:37] Speaker 02: then I'm not sure we would have the same arguments because of the way the government itself has set up that space and allowed access to that space. [00:29:46] Speaker 03: Well, I think under this court's decision... I know you have a Teba and you need to distinguish that, but... I think we can distinguish. [00:29:56] Speaker 03: Teba and Cheryl are about... [00:29:58] Speaker 03: hard passes, and there are about 1,300 journalists who get them. [00:30:02] Speaker 03: And there are about 50 seats in the Brady briefing room. [00:30:06] Speaker 03: I'm not sure those cases stand for the proposition that access to a presidential event in the briefing room can't be curated. [00:30:20] Speaker 02: Your Honor, we haven't pressed that, because factually, the White House hasn't [00:30:26] Speaker 02: tried to impress it that far, right? [00:30:28] Speaker 02: The White House has accepted there is this area within the building that is generally open. [00:30:33] Speaker 02: Once we say it's going to be generally open, we're going to stuck with that. [00:30:36] Speaker 02: And therefore, we have a viewpoint neutrality rule that attaches. [00:30:41] Speaker 02: All we're saying is that that doesn't carry over to areas that are not generally held open for private expression, including voters. [00:30:48] Speaker 04: Just want to make sure I understand your argument and the distinctions you're making. [00:30:54] Speaker 04: So are you agreeing that the White House, it would violate the First Amendment for the White House to revoke a hard pass because of disagreement with the reporter's coverage or reporter's company's style guidelines? [00:31:19] Speaker 04: Yes, Your Honor. [00:31:20] Speaker 04: And why do you agree that that would violate the first amendment? [00:31:26] Speaker 02: because those passes have been made available on a sort of generally open basis to everyone who meets the threshold eligibility of bonafide Washington journalists covering the White House. [00:31:39] Speaker 02: And under this court's cases and the Supreme Court's cases, once the government opens up a space, either physical or metaphysical, on that sort of generally open [00:31:51] Speaker 02: the terms, then it becomes a nonpublic forum and therefore viewpoint discrimination is not permitted. [00:31:59] Speaker 02: And so this court applied those principles in a table and said that covers the hard pass system. [00:32:04] Speaker 02: Question here is how does that carry over to spaces that are not generally held open? [00:32:10] Speaker 02: And they're certainly not generally held open for private speech like the Oval Office. [00:32:13] Speaker 02: We think the answer to that is no. [00:32:17] Speaker 04: And isn't it also [00:32:20] Speaker 04: the First Amendment retaliation claim, separate and apart from whether it violates the First Amendment under forum analysis. [00:32:34] Speaker 02: I don't think that the label changes what's fundamentally driving the outcome. [00:32:41] Speaker 02: So if we're dealing with the press pass, you could call that a retaliation claim rather than a viewpoint discrimination forum claim. [00:32:51] Speaker 02: And it would apply exactly the same way. [00:32:54] Speaker 02: Meanwhile, if we're talking about somebody who's invited into the Oval Office to make a presentation about, let's say, a pro-Second Amendment presentation to the president, then an anti-Second Amendment advocate couldn't bring a claim and say, oh, I didn't get the same invitation I was retaliated against. [00:33:13] Speaker 02: We would say, no, that's a context where the viewpoint discrimination is allowed by the First Amendment. [00:33:17] Speaker 02: So you have neither a forum claim nor a retaliation claim. [00:33:21] Speaker 04: I thought a few minutes ago you said that the family from Kansas, if they were initially accepted to take a tour of the White House, but then were told when they got to the gate, you can't come in because of your social media criticism of the White House, that that wouldn't pose a retaliation problem. [00:33:47] Speaker 02: So that, because the tour itself is... [00:33:54] Speaker 02: I'm not sure that getting the tour or not getting the tour is going to even meet the sort of minimal threshold for any retaliation claim. [00:34:03] Speaker 02: So I think there's kind of two ways retaliation claim might fail. [00:34:05] Speaker 02: It might fail because you're allowed to do viewpoint discrimination. [00:34:08] Speaker 02: It might fail because it's just not the type of action that can qualify for retaliation at all. [00:34:14] Speaker 02: Like if I make an angry face at somebody, that's not enough for retaliation, right? [00:34:18] Speaker 02: The tour, I'm not sure if it rises to that level. [00:34:21] Speaker 04: Do you think that what you're arguing now comports with the Supreme Court's decision in Wilson? [00:34:27] Speaker 04: In which case? [00:34:27] Speaker 04: Wilson. [00:34:28] Speaker 04: It's the one you rely on in your brief, I believe. [00:34:34] Speaker 04: It's a Supreme Court decision. [00:34:41] Speaker 02: I mean, for retaliation purposes, I know we invoke the Supreme Court's decision in the Houston Community College case, which says when you're trying to figure out whether an action is materially adverse, you look at the sort of historically, how has this been treated, and make the evaluation in light of those sort of background norms. [00:35:02] Speaker 02: And I think our argument is entirely consistent with that, because especially when you view this case through the access to information prism, [00:35:09] Speaker 02: of what is the historical relationship between the president and the press with respect to information. [00:35:15] Speaker 02: And I think that's actually an area where the merits briefs have a lot more to say than the state briefs did about that historical relationship. [00:35:23] Speaker 02: But I think it makes it quite clear that presidents have always treated access to information as both a carrot and a stick with the press on viewpoint discriminatory terms. [00:35:33] Speaker 02: And that, I think, [00:35:35] Speaker 04: further supports our point on retaliation, which is that this is just another instance of that sort of relationship, and therefore is not... Wilson said that if distinguished that case from an instance where the government prevents the person from doing their job, and distinguished that case, which was a censure of [00:36:00] Speaker 04: than the legislative representative from cases that are aimed at private individuals and sovereign taking action against private individuals and uses the example of the whiskey rebellion and how the efforts to try to punish private citizens for their participation in that that was quashed by James Madison and others. [00:36:29] Speaker 04: So why isn't, why isn't whether you, when the district court finds that the AP is inhibited from doing their job, and in fact that's the precise reason why they're being punished this way, you don't generally impose punishments that don't hurt, at least I don't, [00:36:59] Speaker 04: So why isn't this square on what Houston Community College v. Wilson is talking about? [00:37:11] Speaker 02: Your honor, I'm not making the argument that it doesn't hurt. [00:37:13] Speaker 02: The argument that I'm making is that journalists and reporters need information to do their jobs, right? [00:37:20] Speaker 02: They all need information. [00:37:21] Speaker 02: They want information. [00:37:22] Speaker 02: The more information they have, the better they can do with their jobs. [00:37:25] Speaker 02: And yet, [00:37:26] Speaker 02: It has long been the case and accepted that elected officials can give and withhold nonpublic information to journalists on a viewpoint discriminatory basis. [00:37:38] Speaker 02: That's why we have the interview example, but not just interactive. [00:37:42] Speaker 02: It's not limited to interactive. [00:37:44] Speaker 02: episodes, things like leaks of information, things like exclusives, heads up, call somebody and return somebody's calls to answer a question. [00:37:53] Speaker 02: All of these things are ways in which the government, the public officials can selectively provide access to information to favored journalists. [00:38:04] Speaker 02: And that has been happening as our brief develops in greater length for [00:38:10] Speaker 02: a very long time. [00:38:11] Speaker 02: And nobody has thought that that violates the First Amendment. [00:38:14] Speaker 02: And so against that backdrop that Baltimore Sun talks about at length, against that backdrop, this type of selective restriction on access to information is not properly considered a materially adverse action for First Amendment purposes either. [00:38:32] Speaker 04: All right. [00:38:32] Speaker 04: Thank you. [00:38:33] Speaker 04: We'll give you some time on rebuttal. [00:38:34] Speaker 04: Thanks, Your Honor. [00:38:42] Speaker 04: Mr. Tobin, we'll hear from you. [00:38:45] Speaker 01: Thank you, Your Honor. [00:38:46] Speaker 01: Charles Tobin from the law firm of Ballard's Bar along with back to Michigan, Sasha Dunning on behalf of the Associated Press. [00:38:53] Speaker 01: Your Honors, I think Judge Wilkins, your question was very apt in terms of what is the standard of review here. [00:39:01] Speaker 01: Obviously, we have had numerous judges weigh in on this case. [00:39:05] Speaker 01: And as the court pointed out, Judge Walker wrote a decision on bond concurring as a matter of procedure [00:39:11] Speaker 01: in the denial of review, but he did write that the trial judge wrote a forceful and persuasive opinion, and the court ought to give it due course and due reason. [00:39:22] Speaker 01: Your Honor, that makes this particular argument, whether to reverse the injunction wholesale [00:39:27] Speaker 01: very different from the state panel's setting. [00:39:30] Speaker 01: We've now had several judges take reasoned and opposite positions based on their own views of whether it's an access case or whether it's a retaliation deprivation case. [00:39:41] Speaker 01: That makes it, at least in the minds of this court, a close question of law. [00:39:45] Speaker 01: And that requires a higher level of protection for the district court's decision below. [00:39:50] Speaker 01: And your honor, [00:39:52] Speaker 01: We believe and we ask that the District Court, that you agree with the District Court, that the First Amendment does not stop at the Oval Office door. [00:40:00] Speaker 01: This case is governed by Sherrill and Atiba and Karam. [00:40:04] Speaker 01: We have a well-reasoned line of decisions that say that once you have a system that allows the press into a certain location, whether it's the White House or in Sherrill, whether it's Karam, the Rose Garden, or whether it's Atiba, the Brady Press Room, [00:40:19] Speaker 05: What's the system here? [00:40:21] Speaker 05: I mean, the White House is now choosing who gets to observe the president in the Oval Office and Air Force One. [00:40:29] Speaker 05: What's the system other than these are people who we have decided we will favor with access to the president? [00:40:37] Speaker 01: Your honor, to ask the question the way you have asked it answers the question with all due respect. [00:40:41] Speaker 01: The White House now has a formalized policy. [00:40:44] Speaker 01: It was established on April 15. [00:40:46] Speaker 01: It's written down. [00:40:47] Speaker 01: It's two pages. [00:40:48] Speaker 01: It has multiple points. [00:40:50] Speaker 01: In assuming the obligation, the responsibility for [00:40:55] Speaker 01: keeping the gatekeeper for the press, the White House has now directly taken on the obligation to abide by the First Amendment in making those selections. [00:41:03] Speaker 01: And whether this case is decided on a viewpoint on a public forum basis or a discrimination basis or a Fifth Amendment basis, the First Amendment commands no viewpoint discrimination. [00:41:16] Speaker 01: And the White House press policy [00:41:18] Speaker 05: AP has conceded that the president can discriminate on the basis of viewpoint with respect to interviews or who he chooses to meet with. [00:41:27] Speaker 05: And AP tries to draw a distinction between physical access and personal access. [00:41:35] Speaker 05: But where the president is concerned in his most, you know, sort of [00:41:40] Speaker 05: his own personal spaces like his airplane or his office. [00:41:45] Speaker 05: I mean, don't those two things collapse? [00:41:47] Speaker 05: I mean, how do we distinguish between just physical access and personal access when someone is within 10 feet of the president of the United States? [00:41:55] Speaker 01: Your honor, they are not his personal space, with all due respect. [00:41:58] Speaker 01: Those are the aid for by the taxpayer people's offices that the government is conducting government actions for the people. [00:42:06] Speaker 05: I mean, they are government. [00:42:07] Speaker 05: Of course, they are owned by the government. [00:42:09] Speaker 05: But the president has, I mean, he's the head of the executive branch. [00:42:14] Speaker 05: And this is his office that is given to him by Congress and by the government to do his constitutional duties. [00:42:22] Speaker 05: Do you think that's the same as the Brady Press Room? [00:42:26] Speaker 01: I think ATABA speaks to that directly in dividing the government spaces in the White House between the president's living quarters on the one hand and government offices on the other hand. [00:42:36] Speaker 01: And just like the president is not above the law, the Oval Office is not a First Amendment banned forum for the purposes of conducting the government's business. [00:42:45] Speaker 01: When the president invites the press pool in, he is operating under a regular government system. [00:42:51] Speaker 01: And I think the government, in its argument, my friend on the other side, conceded his case when he said, if the White House has a system open to all bona fide journalists, that looks more like the White House briefing room. [00:43:04] Speaker 01: And that is exactly what the press policy has been since the Eisenhower administration and is now being run directly by the White House. [00:43:12] Speaker 01: It is a government system for allowing a group of journalists that is specifically defined in the policy as the pooled into any space where the president is conducting business. [00:43:23] Speaker 03: So you're backing off all of the concessions that you made at the prior argument. [00:43:29] Speaker 03: I'm not. [00:43:30] Speaker 03: You said at the prior argument, the White House can choose to admit one favorite journalist or five or 20 to the Oval to access the president. [00:43:44] Speaker 01: I was acknowledging that that's the law under Sheryl. [00:43:46] Speaker 03: And I was acknowledging that the White House can do all of that on a viewpoint basis. [00:43:52] Speaker 01: That's what Sheryl says. [00:43:53] Speaker 01: Sheryl says this case does not involve the right of the president to speak to whomever he wants to. [00:43:59] Speaker 01: But the Sheryl case, which governs here, and the only way the government wins in this case is if this panel were to overrule Sheryl, Karen, and the table, what it's specific. [00:44:07] Speaker 03: So you need, in order to prevail, you need for there to be a First Amendment distinction between Oval Office events, depending on who is going to speak to whom. [00:44:21] Speaker 03: If the reporters are going in with an expectation that they can ask questions and have them answered, the president gets to pick. [00:44:29] Speaker 03: If they're going in to be silent and observe, First Amendment attaches. [00:44:34] Speaker 01: Now, Your Honor, I would say the distinction is if it's a pool event, which we now have as a defined thing under regulation directly by the government, if it's a pool event, then the president cannot pick and choose people the way he could if he's inviting an individual or a pair of girls. [00:44:50] Speaker 03: He can make ad hoc judgments. [00:44:52] Speaker 03: about whom to come into a particular event. [00:44:56] Speaker 03: That is the law of this circuit that is a particular event. [00:44:59] Speaker 03: He can't do that. [00:45:00] Speaker 03: He can't memorialize on paper a rule that [00:45:05] Speaker 03: We're going to pick reporters based on who we think is appropriate to the event at hand. [00:45:12] Speaker 01: That is not what this pool system is. [00:45:14] Speaker 01: And that is the law under Cheryl. [00:45:15] Speaker 01: That once there is an established system, whether it's a hard pass system or a pool system, there is no principal distinction as a matter of law between those two unless we're going to stop the First Amendment at the Oval Office door. [00:45:28] Speaker 01: And that is not a principle on which I think this court should rest. [00:45:33] Speaker 01: That is not consistent with the applet [00:45:35] Speaker 03: How does the president, on your view, given what you say is an established system, how does the president get to pick who will come in the Oval Office for an event on a viewpoint discriminatory basis? [00:45:54] Speaker 01: It's not a pool event. [00:45:55] Speaker 01: If he's sitting down with Tucker Carlson and having a one-on-one interview, that is not an invitation. [00:46:00] Speaker 03: Suppose he has a foreign head of state. [00:46:04] Speaker 03: in the only wants a couple of reporters to serve it. [00:46:08] Speaker 03: But he doesn't want reporters who might ask the foreign head of state an embarrassing question. [00:46:13] Speaker 03: Can you do that. [00:46:15] Speaker 01: If it's a one on one or a 2 on one or 3 on one or a 10 on one. [00:46:21] Speaker 01: Yes, Your Honor, but if I may, that is the law in Cheryl and I can't ask this panel to overrule Cheryl. [00:46:29] Speaker 01: It doesn't have the authority to do that. [00:46:31] Speaker 01: That is the mundane practice of individual. [00:46:35] Speaker 01: That's the historical and mundane practice of individual interviews. [00:46:38] Speaker 01: That's one thing. [00:46:40] Speaker 01: We also have a historical practice [00:46:43] Speaker 01: with its antecedent roots in the Garfield administration, but being formalized during the Eisenhower administration. [00:46:48] Speaker 01: We've had 70 years of experience under a system called the press pool and a defined set of events. [00:46:56] Speaker 01: The White House sends out emails every night defining [00:47:00] Speaker 01: who the members of the pool are going to be for the next day. [00:47:02] Speaker 01: That is an established government system that looks an awful lot like the mailbox in the Perry case or the CFC flyer. [00:47:11] Speaker 05: So your whole argument turns on the press pool being a system. [00:47:14] Speaker 05: I mean, the system has changed over time. [00:47:16] Speaker 05: I mean, it was run by the Correspondence Association. [00:47:18] Speaker 05: Now it's run by the White House. [00:47:20] Speaker 05: I mean, it's not some fixed thing. [00:47:23] Speaker 01: Well, it has changed in some of its dimensions. [00:47:27] Speaker 05: It's changed in who is part of it, how it is selected, who does the selection. [00:47:32] Speaker 05: I mean, these are the key components. [00:47:34] Speaker 05: I mean, there's no historical practice of a fixed press pool. [00:47:39] Speaker 05: If that's AP's primary argument, then I don't [00:47:44] Speaker 01: I don't see how- Well, a form is defined by historical precedent, historical antecedent, whether it's people are allowed in to speak and whether it's governed by reasonable and viewpoint neutral criteria. [00:47:59] Speaker 01: That's what happened in the Perry case. [00:48:00] Speaker 01: That's what the mailbox system in the Perry case. [00:48:03] Speaker 01: That's the second class mail system in the Hannigan versus Esquire case. [00:48:07] Speaker 01: from the United States Supreme Court. [00:48:09] Speaker 01: You have the government establishing a system, and it may change in dimensions from time to time, but in every case it must be administrative. [00:48:17] Speaker 01: If it is a government program, which this is, it must be administered in a content neutral, a viewpoint neutral, and a reasonable format. [00:48:25] Speaker 03: So there's an event scheduled in the Oval. [00:48:29] Speaker 03: Does the White House get to designate that event as press pool or something else? [00:48:37] Speaker 01: They do it all the time, Your Honor. [00:48:39] Speaker 03: That's routine practice. [00:48:42] Speaker 03: found by viewpoint neutrality when they make that designation. [00:48:46] Speaker 01: We are not arguing for viewpoint neutrality when it comes to individual decision. [00:48:52] Speaker 03: They just designate the event as a non press pool event. [00:48:56] Speaker 01: We're not arguing that if it is not, this case is strictly being argued under the facts of the press pool case and under the undisputed findings of the district [00:49:06] Speaker 03: It sounds like a jurisprudence of labels. [00:49:11] Speaker 03: They call something the press pool. [00:49:13] Speaker 03: The press pool is just a mechanism for allocating space in the Oval or on Air Force One. [00:49:22] Speaker 01: Well, it's a defined government program. [00:49:24] Speaker 01: I mean, the public forum doctrine is jurisprudential labeling, right? [00:49:28] Speaker 01: You have traditional, you have limited or designated public forums, and then everything else is a non-public forum. [00:49:35] Speaker 03: If you win on that theory, the next day the government will stop, the White House will stop designating things as press pool events. [00:49:44] Speaker 01: We might have something to say then under our retaliation claim, Your Honor, if it is done [00:49:48] Speaker 01: to cut off the AP's right to call it the Gulf of Mexico during the middle of this litigation. [00:49:53] Speaker 01: We also might have some things to say about it being retaliation for this litigation as we did in our amended complaint. [00:50:00] Speaker 01: So it would not end the inquiry for us if the White House were to do that. [00:50:04] Speaker 01: I'm only acknowledging, Your Honor, that the President does have a right, as it says in Cheryl, [00:50:09] Speaker 01: and is established law in this circuit, that the president can make individual decisions. [00:50:14] Speaker 01: It's also established in this circuit that if the White House has a hard pass program or admission for all journalists to the East Room or the Brady Press Room, he must not discriminate based on viewpoint criteria. [00:50:27] Speaker 05: That's a doctrinal question. [00:50:28] Speaker 05: So you said that everything else is a non-public forum. [00:50:32] Speaker 05: I mean, do you agree that there are some government spaces that are not fora at all? [00:50:37] Speaker 01: I agree there are spaces that when they're used for certain purposes are not government, are not public forum. [00:50:42] Speaker 05: Can you give me an example of what would be a non-forum government space? [00:50:48] Speaker 01: Well, I would say that analytically, I would argue that they're all non-public forum because of the everything else. [00:50:55] Speaker 05: Is my office a non-public forum? [00:50:57] Speaker 05: Is a member of Congress's office a non-public forum? [00:51:01] Speaker 01: Certainly, if it is used, if you were to hold a hearing in your office, and I've had this experience, Your Honor, with trial courts holding in-chambers hearings, the First Amendment follows the ceremony of the proceeding. [00:51:14] Speaker 05: So if a member of Congress is holding a pool event in their office, then certainly it falls on- If a member of Congress is meeting with a handful of journalists or making an announcement in their office, viewpoint neutrality attaches to that space. [00:51:29] Speaker 01: Not if it's an individual invitation-only event that's the functional equivalent. [00:51:35] Speaker 05: That distinction doesn't... I mean, how do we decide what's a pool event and what's an invitation-only event? [00:51:40] Speaker 05: I mean, as Judge Katz has said, is it jurisprudence of labels? [00:51:43] Speaker 05: I mean... [00:51:44] Speaker 01: That's all we have to go by at this juncture, Your Honor. [00:51:48] Speaker 01: If the injunction were to hold, the president could not eliminate from, and it's a very narrow injunction. [00:51:55] Speaker 01: It simply says, events open to all press, the AP cannot be excluded based on viewpoint. [00:52:01] Speaker 01: And that's a simple holding. [00:52:03] Speaker 01: I think the judge, as [00:52:06] Speaker 01: As Judge Walker and Judge Pan agreed with him said, it was a forceful eloquent, but it was also a very narrow remedy. [00:52:15] Speaker 01: And the remedy is simply that if it's an event open to all journalists in a pool or otherwise, whether it's the East Room or the Oval Office, you cannot discriminate based on it. [00:52:23] Speaker 05: Let me ask you about the remedy. [00:52:24] Speaker 05: So is this injunction effectively an injunction against the president? [00:52:28] Speaker 05: So it's formally against his staff or members of his staff. [00:52:34] Speaker 05: So if the president chooses to say, well, I understand my staff has allowed AP in for this particular event, but I would prefer that they're not here, please leave my office, then what happens? [00:52:46] Speaker 01: Well, we took our cues from Judge Tatel's decision in the Karam case, which upheld the injunction in that case, except he carved out the president for reasons of respect, I think, for separation of powers, if I remember how he raised it. [00:52:59] Speaker 05: Well, that and the Supreme Court precedent saying you cannot enjoin the president. [00:53:03] Speaker 01: And so, Your Honor, I would say, first of all, my friend on the other side is right, the White House could not execute the president's orders without violating the injunction. [00:53:13] Speaker 01: If you uphold the injunction, and that makes it a very practical problem for the White House, and certainly we would be in court if the White House press secretary, despite an injunction, said the president has ordered me to do this, and I am going to [00:53:27] Speaker 05: What if the president simply escorts out the disfavored journalist from his office? [00:53:35] Speaker 05: Can you go back to court and force that? [00:53:37] Speaker 01: I presume the people escorting him out would be the White House staff. [00:53:40] Speaker 05: The president just walks into the door, sends him into the hallway and says, please, you are no longer welcome in my office. [00:53:47] Speaker 05: And so you're back in court before the district court saying, now we want an injunction against the president? [00:53:53] Speaker 01: No, I would say we want an injunction against the White House staff not to follow the president's orders. [00:53:58] Speaker 05: But they haven't done anything. [00:54:00] Speaker 05: The president has simply escorted a journalist out of his office. [00:54:03] Speaker 05: The staff just stand by. [00:54:06] Speaker 01: Then I would be on the phone with White House counsel's office. [00:54:09] Speaker 01: We would have a spirited discussion about whether we needed the court's intervention, and we would be back in front of the court saying there cannot be life given to this injunction. [00:54:17] Speaker 05: You eventually need an injunction against the president for this to work, don't you? [00:54:21] Speaker 05: I don't... In his office and on his plane. [00:54:24] Speaker 05: I mean, ultimately, that's... I mean, for it to really stick, is that what you need? [00:54:29] Speaker 01: I don't think so until the president decides to disobey the spirit and the first amendment and decide that he is above the law. [00:54:36] Speaker 01: The president is not above the law. [00:54:38] Speaker 05: The government is not alleging that the president is above the law. [00:54:42] Speaker 01: I would expect him to respect a ruling in this court that says the government may not discriminate on the basis of viewpoint. [00:54:49] Speaker 01: Yes, I would expect the president to observe and respect the decision in this court that says that. [00:54:54] Speaker 05: Do you think there's any problem, though, with the fact that for something like this to work where there is physical and personal access to the president of the United States, it suggests at least some reasons why an injunction like this is inappropriate? [00:55:11] Speaker 01: No, Your Honor, not if we start with the proposition that number one, the propositions that the president is not above the law, that the First Amendment applies to the executive branch, restricts the authority of the executive branch. [00:55:25] Speaker 01: Everything else does not depend on the specific physical [00:55:29] Speaker 01: situation, it depends on whether there is an established system like the press pool that allows you into the Oval Office. [00:55:37] Speaker 01: The intimacy of the space doesn't matter any more than the restrictions on Guantanamo Bay in the Nation Magazine versus DOD case, the court held that restrictions on access to Guantanamo Bay had to be applied to the press viewpoint neutral. [00:55:52] Speaker 01: that flights to China during the Red Scare, which were limited to journalists, according to Judge Berger, Justice Berger when he was on this court, could not be meted out to Republicans or Democrats. [00:56:04] Speaker 01: They had to be assigned in a viewpoint neutral way. [00:56:09] Speaker 01: And so either we believe in viewpoint neutrality wholesale or we write it out of the law completely. [00:56:15] Speaker 01: It is not a situational ethics, not a situational specific [00:56:21] Speaker 01: pattern that drives these. [00:56:24] Speaker 01: It's the overarching and as of now, unbroken line of precedent that says that the government cannot discriminate on the basis of viewpoint in meeting out any right, benefit or privilege. [00:56:35] Speaker 01: And as my friend said on the other side, that's really what we're talking about here. [00:56:40] Speaker 03: Could I ask a few questions about this retaliation? [00:56:44] Speaker 03: So you have [00:56:46] Speaker 03: the three-part test, which turns on whether there's a materially adverse impact. [00:56:52] Speaker 03: And that sounds like a very good test for you, and it generally applies to denial of benefits. [00:57:01] Speaker 03: But I wonder if it needs to be qualified in the very limited contexts where viewpoint discrimination is permissible. [00:57:12] Speaker 03: I think that was Mr. Roth's theory. [00:57:16] Speaker 03: So just take a case where viewpoint discrimination is permissible. [00:57:21] Speaker 03: Presidential speech. [00:57:23] Speaker 03: The president gets in a tussle with a reporter whose viewpoint the president disfavors, and he speaks to the nation and says, this man is a scoundrel and don't listen to his opinions. [00:57:41] Speaker 03: He can do that, I assume, right? [00:57:43] Speaker 01: He's done it twice in the last week, right? [00:57:45] Speaker 01: Okay, okay. [00:57:46] Speaker 01: He called the Bloomberg reporter piggy, an offensive phrase. [00:57:49] Speaker 01: He did it on national television. [00:57:51] Speaker 01: He did it in Air Force One, not in the residence of Air Force One, but in the press section where he chose to come back and engage with the press during a poll opportunity. [00:57:59] Speaker 03: And you wouldn't say that that reporter could bring a retaliation claim and prevail by [00:58:08] Speaker 03: invoking the three-part test and showing a material harm to the reporter's business. [00:58:13] Speaker 01: By calling her an offensive name? [00:58:16] Speaker 01: No, Your Honor, I think that's settled law that the executive can speak offensively, as offensively as he likes, and this president does that routinely. [00:58:24] Speaker 03: So that's one. [00:58:25] Speaker 03: Take another one. [00:58:26] Speaker 03: One-on-one access to journalists for interviews. [00:58:31] Speaker 03: You've conceded, I think you still say, the president can make those decisions. [00:58:37] Speaker 03: That is the law of shareover. [00:58:39] Speaker 03: So a journalist is scheduled to come in for an interview. [00:58:44] Speaker 03: The day before the journalist criticizes the president, the president cancels the interview. [00:58:50] Speaker 03: No retaliation claim there, I assume, right? [00:58:55] Speaker 01: I think it's a closer question, Your Honor. [00:58:57] Speaker 01: I would not advise my client on that single event to bring a retaliation claim. [00:59:02] Speaker 01: If they were then excluded from the pool and they have been assigned to a pool rotation, I would be back here making that same argument. [00:59:09] Speaker 03: Baltimore Sun decided [00:59:13] Speaker 03: Sort of under the three-part test where the court says, gosh, reporters are tough and they won't be deterred and they shouldn't be deterred by denial of access. [00:59:26] Speaker 03: Suppose there were a district court finding in Baltimore Sun that reporters are chilled if they're denied the access in that access to government officials. [00:59:40] Speaker 03: Retaliation claim? [00:59:44] Speaker 01: And what I'm playing out in my head is you're asking me if the court found as a matter of fact reporters were children, or as a matter of law, it constitutes unconstitutional children. [00:59:54] Speaker 03: I'm suggesting that Baltimore Sun really, and I think Houston Community College with a censure, really they stand for the proposition that there are certain kinds of government actions that don't have to be viewpoint neutral. [01:00:13] Speaker 03: And when you're talking about those actions, no retaliation claim when the government does the viewpoint discrimination. [01:00:21] Speaker 01: We know in the city of Heffernan versus Patterson, New Jersey, a police officer was demoted for because the chief erroneously believed that he was carrying picket signs or campaign signs for his opponent. [01:00:33] Speaker 01: The Supreme Court found a valid retaliation claim in those circumstances on the theory, the legal hook, [01:00:40] Speaker 01: that it would chill other officers from exercising their First Amendment rights. [01:00:45] Speaker 01: So the chilling effect, and that's from Elrod versus Burns, the chilling effect on others is very relevant. [01:00:51] Speaker 01: In this case, we don't need to look to others. [01:00:54] Speaker 01: We can look directly at the record. [01:00:56] Speaker 01: The Associated Press has lost revenue. [01:00:58] Speaker 03: Sorry. [01:00:58] Speaker 03: No, I'm spotting you that. [01:01:01] Speaker 03: I'm spotting you, Harlan. [01:01:02] Speaker 03: I'm just wondering whether it matters. [01:01:04] Speaker 03: Who's the plaintiff in the case you just mentioned? [01:01:07] Speaker 03: If it's a low-level government employee, sure, you can bring a retaliation claim because that employee has a First Amendment right not to be discriminated against in government employment based on his viewpoint. [01:01:21] Speaker 03: What about the tools? [01:01:22] Speaker 01: What about the Tulsparad case that Judge Wilkins asked about? [01:01:27] Speaker 01: That's this circuit's law that involved a prisoner who has the least amount of rights of just about anybody in society. [01:01:34] Speaker 01: That prisoner, because they were practicing the Hindu religion, was being discriminated against and got transferred to another prison. [01:01:40] Speaker 01: And this court found a loss of action. [01:01:43] Speaker 03: And nobody thinks viewpoint discrimination is permissible in assigning [01:01:48] Speaker 03: prisoners to prisons. [01:01:50] Speaker 01: I'm sorry, I didn't hear your question. [01:01:52] Speaker 03: Sorry, viewpoint discrimination in that context is impermissible. [01:01:57] Speaker 01: It is impermissible. [01:01:58] Speaker 01: So I'm answering your question about the low level. [01:02:01] Speaker 01: Is the doctrine, as I understood your question, is the Heffernan doctrine limited to low level government employees? [01:02:06] Speaker 01: I was picking another fact pattern that is the law in this jurisdiction that applied to somebody who has the lowest level of protections in general. [01:02:13] Speaker 03: Yeah, but I'm asking you, but my concern goes to the high level, the high level government employee who doesn't have a right not to be subjected to viewpoint discrimination. [01:02:26] Speaker 01: And the question, Your Honor? [01:02:29] Speaker 03: Suppose a cabinet secretary is fired for that person's viewpoint. [01:02:36] Speaker 03: Retaliation claim or no? [01:02:38] Speaker 01: I think that there the president has greater authority when there are people who speak for his policy and I agree with my friend about that. [01:02:46] Speaker 03: The president can discriminate in that context based on viewpoint and therefore this is what I'm getting at and therefore [01:02:56] Speaker 03: that person has no retaliation claim based on the viewpoint discrimination. [01:03:01] Speaker 01: I think that I think there were more restricted than the first than the press than the rights reserved to the press under the First Amendment and the doctrine of this court in Cheryl Ateba and Karen, which this court obviously would need to overrule if it were going to rule for the government. [01:03:16] Speaker 01: Thank you very much. [01:03:18] Speaker 01: Thank you, Your Honor. [01:03:20] Speaker 04: All right. [01:03:22] Speaker 04: Thank you. [01:03:23] Speaker 04: I'm here for Mr. Roth. [01:03:25] Speaker 04: You're out of time. [01:03:26] Speaker 04: We will give you three minutes. [01:03:31] Speaker 02: Thank you, Your Honor. [01:03:34] Speaker 02: So it sounded to me from counsel's argument like a lot was hinging on giving pretty talismanic significance to the use of the word fool. [01:03:46] Speaker 02: And I don't really think that [01:03:48] Speaker 02: that makes sense. [01:03:50] Speaker 02: The fool is just the name for the people who are being invited in. [01:03:54] Speaker 02: And the question is not, the First Amendment shouldn't turn on that word. [01:03:59] Speaker 02: It should turn on the substance of what it represents. [01:04:03] Speaker 04: But I thought your argument was that forum analysis is based on location, situs. [01:04:12] Speaker 02: No, I think it's based on two things and the one that's relevant to what council was referring to is this question of selectivity. [01:04:19] Speaker 02: Is it open or is it selective? [01:04:22] Speaker 02: If it's selective, it's not a forum. [01:04:24] Speaker 02: And the pool as it's currently constituted, as Mr. Tobin said, it's just the list that the White House sends out the night before that names the people who are invited in. [01:04:35] Speaker 02: That is the most selective regime one can have. [01:04:38] Speaker 02: They are dictating who can come in and who cannot by name. [01:04:41] Speaker 02: And in that circumstance, there is not a forum. [01:04:45] Speaker 02: It is just an invitation to those people to enter. [01:04:49] Speaker 02: Just to give sort of an analogy that I was thinking about, if the White House had a system where they said, every Sunday morning for two hours, we're going to let citizens come and present petitions to the president on whatever they want. [01:05:02] Speaker 02: That might be a forum, right? [01:05:03] Speaker 02: They're saying, private speakers, have your chance to speak. [01:05:07] Speaker 02: It's generally open. [01:05:09] Speaker 02: If they've said, however, we're going to do this presentation where we're going to invite people to make presentations to the president, they could choose the topics and viewpoints of those presentations. [01:05:19] Speaker 02: So as with much of forum doctrine, it turns out to be a little bit of sort of truth and advertising rule, right? [01:05:24] Speaker 02: If you are holding it open as open, you need to actually walk the walk. [01:05:30] Speaker 02: If you are overtly picking and choosing, we don't have a First Amendment problem. [01:05:35] Speaker 02: And I think that's the sort of the core of why this injunction should be reversed. [01:05:42] Speaker 02: And thank you, Your Honours, for the time. [01:05:45] Speaker 02: We would ask the court to reverse the injunction. [01:05:46] Speaker 02: Thank you. [01:05:47] Speaker 02: The case is submitted.