Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here's an excerpt from the opposition to plaintiffs' temporary restraining order motion (for my view on why the plaintiffs should prevail as to access to the main press briefing room, see this post):
asserted
plaintiffs → prevail → post
While the D.C. Circuit has held that some areas of the White House grounds constitute a nonpublic forum, Sherrill v. Knight (D.C. Cir. 1977), that decision is wrong and should be overruled.
asserted
decision → hold → Knight
But even under Sherrill, the President's actions must be sustained because the President has "compelling interest[s]" in enforcing minimum standards for bona fide journalists and safeguarding national security information….
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President → sustain → information
[T]he President's actions were not retaliatory because the Government would have taken the same action anyway, notwithstanding Plaintiffs' speech criticizing the President—indeed, the President has not revoked access to other outlets that have equally criticized the President….
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that → take → President
Sherrill v. Knight … held that because "White House press facilities hav[e] been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons."
asserted
access → hold → reasons
While Defendants acknowledge the D.C. Circuit's decision in Sherrill, that case was wrongly decided, and Defendants expressly reserve their right to argue so on appeal.
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Defendants → acknowledge → appeal
In Sherill, the D.C. Circuit emphasized that "[t]hese press facilities [were] perceived as being open to all bona fide Washington-based journalists[.]"
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facilities → emphasize → journalists
The reality is much better described by the D.C. Circuit's more recent decision in AP v. Budowich (D.C. Cir. 2025).
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reality → describe → Budowich
There, the court acknowledged that there are more journalists who wish to interview the President than he can accommodate; "[i]n deciding which journalists to speak with, the President may of course take into account their viewpoint."
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President → acknowledge → viewpoint
Accord Baltimore Sun Co. v. Ehrlich (4th Cir. 2006) (upholding State Governor's press directive that "no one in the Executive Department or Agencies" should speak with two named reporters because the "Governor's Press Office feels that currently both are failing to objectively report on any issue dealing with" that administration).
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both → uphold → administration
As a result, the court concluded that at least for certain spaces, "the White House may consider journalists' viewpoints when deciding whether to grant access."
uncertain
House → conclude → access
The same logic and standard should apply to access to White House grounds more generally.
asserted
logic → apply → grounds
"Opening" the "White House" to some journalists should not "transform these spaces into nonpublic fora to which access must be granted on a viewpoint neutral basis."
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access → open → basis
Indeed, there are currently a finite number of hard passes, and yet the White House briefing room and West Wing facilities can accommodate only so many reporters.
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room → be → reporters
Under the AP decision, this counsels against the conclusion that the White House is a nonpublic forum.
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House → counsel → conclusion
See AP ("These spaces should not be classified as nonpublic fora because access to them is tightly controlled and highly selective….
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access → see → them
In short, there is no principled way of easily distinguishing between rooms that are a nonpublic forum and those that are no forum at all—particularly where the White House is not obligated to respond to any questions by reporters in the first place.
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House → be → place
But this activity could occur anywhere and therefore lacks the essential connection to the government space required to create even a nonpublic forum.").
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activity → occur → forum
The reasoning of AP should properly control as to all parts of the White House complex.
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reasoning → control → complex
Note that whatever one may think of the implications of AP's reasoning, it reaffirmed (citing Sherrill v. Knight (D.C. Cir. 1977)) that "When the White House opens its facilities to the press generally, as it does in the Brady Briefing Room, it cannot exclude journalists based on viewpoint."
uncertain
it → note → viewpoint
Yet even under Sherrill, Defendants' decision to deny Plaintiffs continued access to White House grounds complies with the First Amendment because they have at least two "compelling reasons," namely, enforcing minimum standards of professionalism for journalists and protecting classified information….
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they → deny → information
First, Defendants may lawfully deny access to Plaintiffs because the President has concluded they fail to satisfy the minimum requirements of professionalism.
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they → deny → professionalism
Indeed, the D.C. Circuit has acknowledged that the White House can set standards governing qualifications for journalistic access.
asserted
House → acknowledge → access
Nothing about Sherrill is inconsistent with the President's judgment that reporters who publish classified and sensitive information fail to meet the Sherill standard.
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who → publish → standard
Nor does Sherrill prevent the President from concluding that bona fide journalists would identify sources instead of relying on anonymous sources, commit to factual accuracy, and provide the White House an opportunity to comment.
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journalists → prevent → opportunity
The President believes basic journalistic standards require calling, asking for comment, and providing a reasonable opportunity for a response.
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standards → believe → response
At a bare minimum, it is a significant violation of decorum to publish classified and sensitive national security information.
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it → publish → information
To be sure, the D.C. Circuit in Sherrill and Karem v. Trump (D.C. Cir. 2020) has held that advanced notice of prohibited conduct and of the consequences of noncompliance are required before a hard pass can be revoked.
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pass → hold → noncompliance
Defendants submit those holdings should be overruled, but in any event, the White House has satisfied those requirements by providing an explanation of the relevant standards, both generally and with respect to Plaintiffs conduct specifically.
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House → submit → conduct
Here, the President's letters set out with specificity what is required and how Plaintiffs have failed to adhere to these standards.
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Plaintiffs → set → standards
The letters point out with specificity examples of Plaintiffs' conduct that he determined fell below these standards.
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he → point → standards
The letters also provide Plaintiffs with an opportunity to respond to these concerns and submit materials for the President's reconsideration….
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letters → provide → reconsideration
Second, Plaintiffs' reporting gives rise to reasons to doubt their trustworthiness and, in fact, the President has determined that Plaintiffs have reported classified or sensitive information bearing on national security.
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Plaintiffs → give → security
Defendants have a compelling governmental interest in protecting such information.
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Defendants → have → information
Indeed, the Supreme Court has recognized that the Constitution vests the President with the "authority to classify and control access to information bearing on national security."
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Constitution → recognize → security
Ultimately, the responsibility and "authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief."
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responsibility → protect → Chief
Here, as explained in the Letters, the President has found that Plaintiffs have engaged in a number of reporting incidents that have threatened national security.
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that → explain → security
Indeed, multiple examples concern reports about the White House complex currently under construction.
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examples → concern → construction
Cf. Nat'l Park Serv. v. Nat'l Tr. for Historic Pres. in the United States (2026) (weighing increased "risk of foreign actors 'gathering intelligence' on the project").
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actors → weigh → project
Such reporting directly raises national security concerns.
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reporting → raise → concerns
…and 5 more, not listed.
The Aporia
