The former president shared a post today:
Is that constitutional? According to the D.C. Circuit (the federal appellate court with jurisdiction over D.C.), it’s
- unconstitutional for the government to exclude press outlets based on viewpoint from spaces that have been broadly opened to the press, such as the main White House press briefing room but
- constitutional to do so as to spaces that aren’t generally open to the press, such as interviews in the Oval Office.
The key precedent on this in AP v. Budowich (D.C. Cir. 2025), which upheld the exclusion of the AP from the Oval Office (because of AP’s refusal to call the Gulf of Mexico “Gulf of America”), but 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. Sherill v. Knight.
To be sure, if the exclusion is based on some objective viewpoint-neutral judgment about which outlets are so factually inaccurate that they don’t merit inclusion, or about the $8.2M in 2024 federal government subscriptions to Politico newsletters, that might be permissible. But if the exclusion is based in part on disapproval of CNN’s, MS NOW’s, and Politico’s perspectives or editorial judgments as being unfair or unsound, that would likely be seen as viewpoint-discrimination—which, again, is unconstitutional as to the main press briefing room but constitutional as to the Oval Office.
