Associated Press v. Taylor Budowich

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5109 September Term, 2024

1:25-cv-00532-TNM

Filed On: June 6, 2025

Associated Press,

Appellee

v.

Taylor Budowich, in his official capacity as

White House Deputy Chief of Staff, et al.,

Appellants

BEFORE: Pillard*, Katsas, and Rao, Circuit Judges

ORDER

Upon consideration of the emergency motion for a stay pending appeal and an

immediate administrative stay, the opposition thereto and notice of errata, and the reply,

it is

ORDERED that the motion for a stay pending appeal be granted in part. The

district court’s preliminary injunction entered on April 8, 2025, is stayed pending further

order of this court except to the extent that the preliminary injunction is applicable to the

East Room. A concurring statement of Judge Rao, joined by Judge Katsas, and a

dissenting statement of Judge Pillard are attached.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Selena R. Gancasz

Deputy Clerk

* Judge Pillard would deny the motion for a stay pending appeal.

RAO, Circuit Judge, joined by KATSAS, Circuit Judge: The

Associated Press wants to be in the room where it happens. But

in February 2025, White House officials excluded the AP from

the Oval Office and other restricted spaces. Officials

announced that access was denied because the AP continued to

use the name Gulf of Mexico in its Stylebook, rather than the

President’s preferred Gulf of America. The AP sued, alleging

that its exclusion violated the First Amendment. The district

court held the AP was likely to succeed on its constitutional

claims, and it issued a preliminary injunction prohibiting White

House officials from denying, on the basis of viewpoint, access

to press events held in the Oval Office, on Air Force One, and

at the President’s home in Mar-a-Lago.1

We grant in part the government’s motion for a stay

pending appeal. The White House is likely to succeed on the

merits because these restricted presidential spaces are not First

Amendment fora opened for private speech and discussion.

The White House therefore retains discretion to determine,

including on the basis of viewpoint, which journalists will be

admitted. Moreover, without a stay, the government will suffer

irreparable harm because the injunction impinges on the

President’s independence and control over his private

workspaces.

I.

A.

Reporters and photographers have long been permitted

access to the White House complex to cover the President and

his administration. The White House manages access by

1

We use “Oval Office” to refer collectively to the Oval Office, Air

Force One, Mar-a-Lago, and similar restricted presidential

workspaces. We separately consider access to the East Room, a much

larger space that can accommodate more members of the press.

2

requiring journalists to obtain a press credential called a hard

pass. More than one thousand journalists hold hard passes,

through which they may access spaces such as the James S.

Brady Briefing Room, where the White House Press Secretary

delivers regular briefings. Hard pass holders may also sign up

via a reservation system to attend larger events hosted in the

East Room, which is often used for meetings with foreign

leaders, executive order signings, and press conferences.

Because the White House has opened these press facilities “to

all bona fide Washington-based journalists,” hard passes may

not be denied arbitrarily or based on the content of a journalist’s

speech. Sherrill v. Knight, 569 F.2d 124, 129–30 (D.C. Cir.

1977).

A small subset (around one percent) of hard pass holders

is sometimes invited into even more restricted White House

spaces, such as the Oval Office and the Cabinet Room. This

group of privileged journalists, referred to as the “press pool,”

has historically been selected by the White House

Correspondents’ Association, a private organization of which

the AP is a founding member. Since its inception, the press

pool has had a relatively stable, although not fixed,

membership. Journalists selected to be part of the press pool

may travel with the President aboard Air Force One and attend

small press events at the President’s home in Mar-a-Lago,

usually to observe presidential speeches and events. For many

years, the Correspondents’ Association offered the AP a

standing invitation to send one reporter and one photographer

to press pool events.

On February 11, 2025, White House Press Secretary

Karoline Leavitt informed the AP that it would not be permitted

in the Oval Office or press pool unless it revised its Stylebook

to refer to the Gulf of America, which President Trump had

recently renamed from the Gulf of Mexico. The President and

3

other senior White House officials publicly stated that the

reason for the AP’s exclusion was its continued use of the name

Gulf of Mexico. The AP was similarly excluded from events in

the East Room, despite signing up in advance through the

reservation process. On February 25, the White House

announced it would select journalists for participation in press

pool events, instead of deferring to the selection made by the

Correspondents’ Association.

B.

The AP brought suit, alleging that the White House

violated the First Amendment by engaging in viewpoint

discrimination and by retaliating against the AP for its

protected expression. It sought declaratory relief and a

preliminary injunction directing the White House to rescind its

new policies targeting the AP.

The district court held that the AP was likely to succeed on

the merits of both First Amendment claims. As to viewpoint

discrimination, the court determined that the Oval Office and

other similar spaces are nonpublic fora and so the White House

may not restrict reporters’ access based on viewpoint. The

President and other White House officials candidly stated that

the AP’s exclusion turned on its viewpoint, namely its

continued use of the name Gulf of Mexico in its Stylebook. The

district court concluded that such viewpoint discrimination in

a nonpublic forum violates the First Amendment. The district

court also held that the White House engaged in unlawful

retaliation by excluding the AP from press pool events because

of its editorial decision to use Gulf of Mexico. As to the other

preliminary injunction factors, the court held the AP’s loss of

First Amendment freedoms and reporting opportunities

constitutes irreparable harm, and enforcement of an

unconstitutional policy is contrary to the public interest.

4

The district court granted the AP’s motion for a

preliminary injunction and required the White House to

“rescind the denial of the AP’s access to the Oval Office, Air

Force One, and other limited spaces based on the AP’s

viewpoint when such spaces are made open to other members

of the White House press pool,” and to “rescind [its] viewpoint-

based denial of the AP’s access to events open to all

credentialed White House journalists.” Tailoring the injunction

to the likely constitutional harm, the court recognized that the

White House retained discretion to exclude the AP for

“permissible reasons,” to deny all journalists access to the

President in restricted spaces, and to select particular

journalists for interviews.2

The White House moved for emergency relief in this court.

It seeks a stay of the district court’s injunction pending appeal.

II.

As a threshold matter, we reject the White House’s

contention that this case implicates the political question

doctrine. The political question doctrine represents “a narrow

exception” to the general rule that “the Judiciary has a

responsibility to decide cases properly before it, even those it

would gladly avoid.” Zivotofsky ex rel. Zivotofsky v. Clinton,

2

On April 14, 2025, while the injunction was in effect, the AP was

denied access to the Oval Office. The next day, the White House

issued an updated policy abolishing the wire services seat from the

press pool. The AP immediately filed a motion arguing the White

House violated the terms of the injunction and requesting

enforcement. The district court denied that motion because it agreed

the White House’s new policy was facially neutral. Moreover, the

court credited the White House’s declaration that it had not excluded

the AP from press events based on viewpoint while the district

court’s injunction was in place.

5

566 U.S. 189, 194–95 (2012) (cleaned up). A case may present

a nonjusticiable political question if one of six factors

identified by the Supreme Court is present. See Baker v. Carr,

369 U.S. 186, 217 (1962) (setting out the modern framework

for the political question doctrine); El-Shifa Pharm. Indus. Co.

v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010)

(explaining the six factors from Baker are disjunctive). As

relevant here, the White House maintains the political question

doctrine bars judicial review because there are no “judicially

discoverable and manageable standards” governing the

selection of journalists for small group press events with the

President and because any resolution of the AP’s claims would

necessarily express a lack of respect for a coordinate branch of

government. Baker, 369 U.S. at 217. We disagree.

The AP’s constitutional challenge lies well within the

judicial province. The AP alleges its First Amendment rights

have been violated because the White House engaged in

viewpoint discrimination and retaliation on account of the AP’s

speech. The freedoms of speech and press are vital to our

constitutional democracy. See Stromberg v. California, 283

U.S. 359, 369 (1931) (“The maintenance of the opportunity for

free political discussion to the end that government may be

responsive to the will of the people ... is a fundamental

principle of our constitutional system.”). The prohibition on

viewpoint discrimination, when it applies, protects speakers

against invidious government action. See, e.g., Rosenberger v.

Rector and Visitors of University of Virginia, 515 U.S. 819, 829

(1995) (“When the government targets not subject matter, but

particular views taken by speakers on a subject, the violation

of the First Amendment is all the more blatant.”). “[A]bove all

else, the First Amendment means that government has no

power to restrict expression because of its message, its ideas,

its subject matter, or its content.” Police Dep’t of Chicago v.

Mosley, 408 U.S. 92, 95 (1972). The courts regularly adjudicate

6

claims that the government has violated the First Amendment’s

prohibition on viewpoint discrimination.

The AP’s arguments that it has suffered viewpoint

discrimination and retaliation in violation of the First

Amendment “sound in familiar principles of constitutional

interpretation” and do “not turn on standards that defy judicial

application.” Zivotofsky, 566 U.S. at 201 (cleaned up). While

the constitutional questions presented arise in a political

context, they do not fall within the narrow category of political

questions that lie beyond the sphere of the federal courts.

Adjudicating the constitutional limits on Executive Branch

action does not, on its own, show disrespect to a coordinate

branch. See El-Shifa, 607 F.3d at 841–42. Due regard for the

Executive Branch as an independent and co-equal department

must be part of our analysis of the AP’s First Amendment

challenge, but it does not bar judicial review at the outset.

III.

It is within our traditional equitable authority to “stay the

enforcement of a judgment pending the outcome of an appeal.”

Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9–10 & n.4

(1942) (citing All Writs Act, now codified at 28 U.S.C.

§ 1651). In deciding whether to grant a stay pending appeal, we

consider four factors: “(1) whether the stay applicant has made

a strong showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a

stay; (3) whether issuance of the stay will substantially injure

the other parties interested in the proceeding; and (4) where the

public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009)

(cleaned up). While these factors guide our assessment, a stay

is an exercise of equitable discretion, and therefore “[t]he

propriety of its issue … depend[s] upon the circumstances of

7

the particular case.” Virginian Ry. Co. v. United States, 272

U.S. 658, 672–73 (1926).

The White House seeks a stay of the preliminary

injunction. A preliminary injunction is “an extraordinary

remedy” that “may only be awarded upon a clear showing that

the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 22 (2008). Unlike a final judgment,

“a preliminary injunction is remarkable because it imposes a

constraint on the enjoined party’s actions” before a full

adjudication of the merits. Hanson v. District of Columbia, 120

F.4th 223, 243 (D.C. Cir. 2024) (cleaned up). “[T]o grant a

preliminary injunction is normally to make a choice under

conditions of grave uncertainty.” Singh v. Berger, 56 F.4th 88,

95 (D.C. Cir. 2022) (cleaned up). Our evaluation of the stay

factors is invariably shaped by the interim nature of the district

court’s relief. “In assessing the lower courts’ exercise of

equitable discretion, we bring to bear an equitable judgment of

our own.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct.

2080, 2087 (2017).

IV.

Because we are considering a stay pending appeal of a

preliminary injunction, the government can demonstrate

likelihood of success on the merits by showing that the district

court misapplied the Winter factors—the first of which is

whether the plaintiff has shown likelihood of success on the

merits. See NTEU v. Trump, No. 25-5157, 2025 WL 1441563,

at *1 & n.1 (D.C. Cir. May 16, 2025). Here, the AP is not likely

to succeed on its viewpoint discrimination and retaliation

claims, which weighs heavily in favor of granting the stay

pending appeal.

8

A.

The district court held the Oval Office, Air Force One, and

similar restricted spaces are nonpublic fora when members of

the press pool are present, and therefore the AP’s exclusion on

the basis of viewpoint violates the First Amendment. We

conclude the spaces to which the AP seeks access are not any

type of forum. As such, the White House may consider

journalists’ viewpoints when deciding whether to grant access.

1.

To determine the extent of any First Amendment

protection, we must first identify the relevant government

space or spaces to which the AP claims access. “The existence

of a right of access to public property and the standard by which

limitations upon such a right must be evaluated differ

depending on the character of the property at issue.” Perry

Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 44

(1983). Forum analysis guides our assessment of whether and

to what extent the government may restrict speech on its

property. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

473 U.S. 788, 799–800 (1985). But we are mindful that courts

should not “extend[] the public forum doctrine in a mechanical

way to contexts that meaningfully differ from those in which

the doctrine has traditionally been applied.” Price v. Garland,

45 F.4th 1059, 1068 (D.C. Cir. 2022) (cleaned up).

The AP argues that it suffers harm through its viewpoint-

based exclusion from press pool events. The district court

identified the press pool as the relevant forum because the AP

has “not been admitted in any form or fashion to the press pool

since February 14” and therefore “seeks restored eligibility

for … press pool events.” Focusing on the press pool, however,

distracts from the actual fora relevant to our analysis. The press

pool is an historically privileged group of reporters that is at

9

times given access to spaces like the Oval Office. Reporters

and photographers within the pool gather news and speak to the

public about what they have seen and heard, but the pool is a

not an “instrumentality used for communication” by the AP or

other journalists. Cornelius, 473 U.S. at 803. The press pool is

simply a mechanism for granting a select group of reporters

access to the most private spaces in the White House.3

Although the AP emphasizes its storied place in the history

of the press pool, the pool is relevant only because it is often

granted access to spaces in which the President conducts

business. See id. at 801 (“[I]n defining the forum we have

focused on the access sought by the speaker.”). If the press pool

were not allowed in the Oval Office, membership in the pool

would be irrelevant to the access that the AP seeks.

The proper context for our First Amendment analysis is

therefore the restricted spaces to which the AP seeks access,

namely the Oval Office, Air Force One, Mar-a-Lago, and the

East Room, when they are opened to a small group of

journalists to observe presidential events.

2.

Courts apply forum analysis to determine the character of

government property and the extent to which it is open to

private speech. Government property may be one of “three

types of fora: the traditional public forum, the public forum

created by government designation, and the nonpublic forum.”

Id. at 802. Some government properties, however, are “not fora

at all.” Arkansas Educ. Television Comm’n v. Forbes, 523 U.S.

3

The press pool is not, and has never been, a government benefit. Cf.

Pillard, J., dissenting, at 9, 21. Until recently, membership in the pool

was determined by a private organization, the Correspondents’

Association.

10

666, 677 (1998); Walker v. Texas Div., Sons of Confederate

Veterans, Inc., 576 U.S. 200, 216 (2015). The degree of First

Amendment protection turns on both the characterization of the

property and the type of activity occurring there.4 “[F]orum

analysis applies only to communicative activities, not to

activities that, even if generally protected by the First

Amendment, are not communicative.” Price, 45 F.4th at 1070.

No one suggests the Oval Office is a traditional public

forum such as a park or sidewalk held in trust for expressive

activity. Nor is the Oval Office a designated public forum that

the government has made generally available to the public for

discourse and communication. The disagreement between the

parties is whether the spaces at issue are nonpublic fora or not

fora at all, and so we focus on this distinction.

“A nonpublic forum is government property that is not by

tradition or designation a forum for public communication.” Id.

at 1068 (cleaned up). The government, “no less than a private

owner of property, has power to preserve the property under its

control for the use to which it is lawfully dedicated.” Greer v.

Spock, 424 U.S. 828, 836 (1976) (cleaned up). Government

property does not become a nonpublic forum unless and until

the government takes some affirmative step to open the space

for private communication. While the government need not

open up property “that is not by tradition or designation a

forum for public communication,” the government “creates a

4

While viewpoint discrimination is often unconstitutional, we reject

the dissent’s primary argument that the White House’s viewpoint-

based exclusion of the AP is per se unconstitutional. See Pillard, J.,

dissenting, at 6–9. This blanket conclusion finds no support in our

First Amendment jurisprudence, which carefully assesses the type of

government property at issue and recognizes that some government

spaces are not fora at all and therefore are not subject to prohibitions

on viewpoint discrimination.

11

nonpublic forum when it provides selective access for

individual speakers.” Ateba v. Leavitt, 133 F.4th 114, 121–22

(D.C. Cir. 2025) (cleaned up). Until the government opens a

restricted space to private speech between private parties, such

a space is not a First Amendment forum at all.

Our cases provide guideposts for applying forum analysis

to spaces in the White House. 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. In

Sherrill, we held that the “White House press facilities having

been made publicly available as a source of information for

newsmen, the protection afforded newsgathering under the

[F]irst [A]mendment guarantee of freedom of the press”

attached, requiring that “access not be denied arbitrarily or for

less than compelling reasons.” 569 F.2d at 129 (cleaned up).

We recently explained that “[a]lthough Sherrill predated

modern forum analysis, its description of the Press Area fits the

definition of a nonpublic First Amendment forum.” Ateba, 133

F.4th at 122–23. Thus, “access to the White House Press Area

can be restricted as long as the restrictions are viewpoint

neutral and reasonable.” Id. at 123 (cleaned up). Sherrill and

Ateba stand for the proposition that White House spaces

generally open to the press are nonpublic fora, and therefore

access cannot be restricted based on viewpoint.5

On the other hand, we have never suggested that there are

any First Amendment restrictions on “the discretion of the

President to grant interviews or briefings with selected

5

The White House has substantial discretion to control press access

based on considerations such as security or space limitations, and this

court has declined to micromanage or intrude on the White House’s

discretion to set such policies. See Sherrill, 569 F.2d at 130; Ateba,

133 F.4th at 122–23.

12

journalists.” Sherrill, 569 F.2d at 129. In deciding which

journalists to speak with, the President may of course take into

account their viewpoint. If President Trump sits down for an

interview with Laura Ingraham, he is not required to do the

same with Rachel Maddow. The First Amendment does not

control the President’s discretion in choosing with whom to

speak or to whom to provide personal access. It is a time

honored and entirely mundane aspect of our competitive and

free press that public officials “regularly subject all reporters to

some form of differential treatment based on whether they

approve of the reporters’ expression.” The Baltimore Sun Co.

v. Ehrlich, 437 F.3d 410, 418 (4th Cir. 2006).

These uncontested principles provide the framework for

assessing the AP’s claim that the Oval Office and other

restricted spaces become nonpublic fora when the White House

selects a small group of journalists (such as the press pool) to

be present for observational newsgathering and reporting.

3.

To properly characterize the Oval Office and like spaces,

we examine their history and the government’s “policy and

practice” with respect to allowing access. Cornelius, 473 U.S.

at 802. We also consider whether “the tradition of … activity”

in these spaces demonstrates that they “have historically been

made available for speech activity.” Int’l Soc’y for Krishna

Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992); see also

Perry, 460 U.S. at 45 (evaluating whether the space has “by

long tradition … been devoted to assembly and debate”). The

design and function of the space is also relevant when

determining whether the government has created any type of

forum for private speech. United States v. Kokinda, 497 U.S.

720, 727–30 (1990) (plurality opinion).

13

The Oval Office is the President’s office, over which he

has absolute control and discretion to exclude the public or

members of the press. As the district court explained, the Oval

Office “is a highly controlled location … shrouded behind a

labyrinth of security protocols,” which “few members of the

public will ever” enter. The President uses the space for myriad

purposes, including speeches, signing ceremonies, and

meetings with senior officials or heads of state. When events in

the Oval Office are broadcast to the public, they feature the

President’s speech and expressive activity.

It hardly needs to be said that the Oval Office, Air Force

One, or even the East Room are not places “traditionally open

to assembly and debate,” nor are they open to the public for

expressive activity. Cornelius, 473 U.S. at 802. The parties

agree the White House could, consistent with the First

Amendment, exclude press from these spaces entirely. Cf.

Zemel v. Rusk, 381 U.S. 1, 17 (1965) (explaining there is no

First Amendment right to enter the White House); Pell v.

Procunier, 417 U.S. 817, 833 (1974) (“It has generally been

held that the First Amendment does not guarantee the press a

constitutional right of special access to information not

available to the public generally.”) (cleaned up); Houchins v.

KQED, Inc., 438 U.S. 1, 9, 12 (1978) (holding the press has no

First Amendment “right of access to all sources of information

within government control”).

The AP’s primary contention, however, is that when the

Oval Office and similar spaces are opened to the press pool,

they become nonpublic fora and therefore the White House

may not withhold access on the basis of viewpoint. We

disagree.

First, the press events to which the AP seeks access do not

involve the type of communicative activities that transform a

14

restricted government space into a nonpublic forum. “[F]orum

analysis applies only to communicative activities.” Price, 45

F.4th at 1070. In each of the Supreme Court’s forum analysis

cases, the activity triggering application of the doctrine

involved “assembly, the exchange of ideas to and among

citizens, the discussion of public issues, the dissemination of

information and opinion, and debate—all of which are

communicative activities.” Id. at 1069 (canvassing cases).

Where, as here, a small group of journalists is permitted to

attend events in restricted White House spaces like the Oval

Office, the primary activity is observational newsgathering.

The district court found that at so-called press pool events,

“journalists are relegated to watching events unfold” and very

often “have no interaction with the President or other officials.”

At these events, journalists do not expect to “have a substantive

conversation with officials.” Instead, journalists are present

“just to witness what is said and what the reaction is, and what

else is happening in the room.” The AP admits as much and

identifies the harms from exclusion as the loss of opportunities

to “gather and quickly disseminate news about the President.”

Newsgathering may enjoy some First Amendment protections

from government interference. See Branzburg v. Hayes, 408

U.S. 665, 707 (1972). But newsgathering is not itself a

communicative activity. When journalists are invited to

observe events in the Oval Office, they are gathering

information for their reporting, which is “a noncommunicative

step in the production of speech.” Price, 45 F.4th at 1068.

Second, the communicative acts identified by the district

court cannot transform these restricted White House spaces

into nonpublic fora. The AP stressed that the “quick[]

disseminat[ion]” of presidential news is essential to its business

model as a global wire service. And the district court concluded

that journalists are in fact “speaking” from these limited-access

spaces because they transmit stories, observations, and

15

photographs in real time.6 Without question, such reporting

constitutes speech and expressive activity. That speech,

however, has little if any nexus to the restricted spaces in which

it occurs such that the spaces become nonpublic fora.

In every case in which the Court has concluded a

government property constitutes a traditional public forum,

designated forum, or even nonpublic forum, there exists a close

relationship between the forum and the protected speech. Since

Roman times, a forum has been emblematic of a space for

citizens to participate in public discussion and dialogue, to

exchange ideas, and to engage in political debate. In modern

doctrine, the “traditional public forum” is closely tethered to

this historical conception: It is a place which, “time out of

mind, [has] been used for purposes of assembly,

communicating thoughts between citizens, and discussing

public questions.” Perry, 460 U.S. at 45 (cleaned up). See also

Cornelius, 473 U.S. at 800 (“[A] principal purpose of

traditional public fora is the free exchange of ideas.”). In a

similar way, a designated public forum is a space the

government opens “for use by the public as a place for

expressive activity.” Perry, 460 U.S. at 45 (emphasis added).

6

The district court relied heavily on a Seventh Circuit decision,

which concluded that an “invitation-only, limited-access press

event” hosted by the governor of Wisconsin was a nonpublic forum.

See John K. MacIver Inst. for Public Policy, Inc. v. Evers, 994 F.3d

602, 610 & n.1 (7th Cir. 2021). In that case, however, while the

Governor argued that his press events were likely not a forum at all,

he acknowledged that nonpublic forum analysis “might apply” under

the circumstances. Id. at 610 n.1. Without explanation, the Seventh

Circuit held “the non-public forum analysis is the appropriate one”

and concluded that the Governor’s access policies were

constitutional even under this more demanding standard. The case is

therefore of limited relevance to the inquiry here, where the parties

dispute whether these spaces are fora at all.

16

So, for example, a university created a designated public forum

when it made its facilities available for student groups and

speakers to use for meetings, discussions, and other

communicative purposes. Widmar v. Vincent, 454 U.S. 263,

267–73 (1981). In all of these cases, there is a clear nexus

between the forum and the protected speech.

Even with respect to less conventional nonpublic fora, the

Supreme Court has carefully considered the connection

between the speech and the forum. In Cornelius, the plaintiffs

wanted to solicit donations (a form of protected speech)

through a charity drive brochure targeted at federal employees.

473 U.S. at 797–801. The Court concluded that the charity

drive with its government-distributed materials was a

nonpublic forum because “the nexus between solicitation and

the communication of information and advocacy of causes is

present in the [charity drive brochure] as in other contexts.” Id.

at 799 (emphasis added). The plaintiffs sought “access to a

particular means of communication,” namely, speaking to

government workers within the nonpublic forum of the charity

drive brochure. Id. at 801.

These cases illustrate why AP’s communicative activities

here have no nexus to the Oval Office. When a small number

of press observe presidential events, they are not using the Oval

Office as the location or means of communication. And when

the White House opens events in the Oval Office to a select

group of journalists for observational newsgathering, the

journalists generally are not speaking with the President or

other officials, nor are they engaged in dialogue with each

other. The AP’s reporting on presidential events through

electronic dissemination of news to editors or the public

outside the White House is the only communicative activity at

issue. But this activity could occur anywhere and therefore

17

lacks the essential connection to the government space required

to create even a nonpublic forum.

We decline to adopt a rule that would turn any government

space in which smart phones or computers are allowed into a

nonpublic forum simply because individuals can communicate

with the outside world by blogging, posting comments and

pictures, or other otherwise disseminating messages in real

time. Smart phone ownership is ubiquitous. The mere

possibility of communicating through the internet while on

government property cannot transform every government

space into a forum protected by the First Amendment.7 Indeed,

we are not aware of any forum analysis case in which the

relevant expressive or communicative activity was directed

outside the forum. When the courts determine that government

property serves as a forum, the property is the essential situs

for the communicative activity.

Third, these spaces should not be classified as nonpublic

fora because access to them is tightly controlled and highly

selective. Only about one percent of hard pass holders can fit

in spaces like the Oval Office. When access to government

property is very limited, considerations of viewpoint may be

permissible. Cf. Nat’l Endowment for the Arts v. Finley, 524

7

In Price, we said in dicta that livestreaming may be a kind of

communicative activity, “albeit to people who are not necessarily

located in the forum in which the streaming is conducted.” 45 F.4th

at 1071 n.***. Livestreaming was not at issue in that case, but instead

used as an example to distinguish communicative activity from

noncommunicative steps in the creation of speech. Moreover,

although we stated in Price that the government could not restrict

filmmaking in national parks on the basis of viewpoint, see id. at

1071–72, the government generally had opened the parks to the

public for commercial uses, see id. at 1064–65. This aspect of Price

has no relevance to highly restricted spaces such as the Oval Office.

18

U.S. 569, 585–86 (1998) (upholding discretionary funding

scheme against First Amendment challenge and explaining that

with such a competitive grant program “absolute neutrality is

simply inconceivable”) (cleaned up).

At oral argument, the AP agreed that the President or

White House could select a group of journalists each day to

observe events in these spaces and that such selection would

not be subject to forum analysis. The AP further conceded that

the President could abolish the existing press pool or establish

a new pool based on different criteria, including viewpoint.8

And the AP agrees the White House or President can

discriminate on the basis of viewpoint in granting exclusive

interviews, answering journalists’ questions, or selecting

journalists to attend an event about a particular subject matter.

The AP’s concessions give away the game, because such

scenarios cannot be distinguished from so-called press pool

events, which are at bottom small press availabilities with the

President. Allowing a handful of selected journalists into the

President’s personal office cannot transform it into the Brady

8

Both the AP and the district court at various points suggest that if

the White House maintains something like the press pool, it must

allow access on a viewpoint neutral basis. For the reasons already

explained, a group of journalists observing presidential events is not

a forum of any sort. Accordingly, the White House should not have

to choose between excluding all journalists and admitting journalists

under the restrictions of a nonpublic forum. By recognizing the

distinctions between different fora “we encourage the government to

open its property to some expressive activity in cases where, if faced

with an all-or-nothing choice, it might not open the property at all.”

Forbes, 523 U.S. at 680; see also Pleasant Grove City, Utah v.

Summum, 555 U.S. 460, 480 (2009) (“[W]here the application of

forum analysis would lead almost inexorably to closing of the forum,

it is obvious that forum analysis is out of place.”).

19

Briefing Room. The AP therefore must place great weight on

the historical press pool as the forum to which it seeks access.

But as we have already explained, the only potential fora here

are the restricted physical spaces, like the Oval Office, to which

AP seeks access, not the historical press pool.

Finally, the fact that the President is communicating at

these events further distances this context from forum analysis.

When the government is speaking, forum analysis is usually

inapplicable because while the First Amendment “restricts

government regulation of private speech[,] it does not regulate

government speech.” Pleasant Grove City, Utah v. Summum,

555 U.S. 460, 467 (2009); see also Walker, 576 U.S. at 215

(“Because the State is speaking on its own behalf, the First

Amendment strictures that attend the various types of

government-established forums do not apply.”).

Although the White House disclaims primary reliance on

the government speech doctrine, the events to which the AP

seeks access by their nature involve presidential, i.e.

government, speech. The messages conveyed in the Oval

Office are government speech and opportunities for the

President’s administration to express its message. “When

government speech is involved, forum analysis does not apply

and the Government may favor or espouse a particular

viewpoint.” Bryant v. Gates, 532 F.3d 888, 898–99 (D.C. Cir.

2008) (Kavanaugh, J., concurring). Forum analysis is also

inappropriate when government speech occurs within a limited

space, such as the Oval Office, the “essential function” of

which would be defeated by compelling the President to

support private speech on a viewpoint-neutral basis. Summum,

555 U.S. at 478.

20

***

In sum, forum analysis is the wrong framework for

analyzing the First Amendment protections for journalists

observing presidential events in the Oval Office. Opening

restricted White House and presidential spaces to small groups

of journalists does not transform these spaces into nonpublic

fora to which access must be granted on a viewpoint neutral

basis. The AP’s claim to access is inconsistent with

longstanding First Amendment principles and would “plant the

seed of a constitutional case” in every decision the White

House makes about which reporters to include at presidential

events. Connick v. Myers, 461 U.S. 138, 149 (1983); Baltimore

Sun, 437 F.3d at 418. For the foregoing reasons, the White

House is likely to prevail against AP’s viewpoint

discrimination claim.

B.

With respect to the AP’s First Amendment retaliation

claim, the district court concluded that the White House

unlawfully retaliated against the AP for its protected speech,

namely its decision to continue using Gulf of Mexico, rather

than Gulf of America, in its Stylebook. We disagree. Picking

and choosing journalists on the basis of viewpoint might be

actionable in some contexts, such as when the White House

opens its facilities “to all bona fide Washington-based

journalists,” but this is not one of those circumstances. Sherrill,

569 F.2d at 129 (cleaned up). The White House’s decision to

exclude the AP from limited-access presidential events is not

the type of action that counts as materially adverse for purposes

of a retaliation claim.

“[T]he First Amendment prohibits government officials

from subjecting individuals to retaliatory actions … for having

engaged in protected speech.” Houston Cmty. Coll. System v.

21

Wilson, 142 S. Ct. 1253, 1259 (2022) (cleaned up). The

government “may not deny a benefit to a person on a basis that

infringes his constitutionally protected interests—especially,

his interest in freedom of speech.” Perry v. Sindermann, 408

U.S. 593, 597 (1972). The retaliation doctrine is rooted in the

principle that “[o]fficial reprisal for protected speech offends

the Constitution because it threatens to inhibit exercise of the

protected right.” Hartman v. Moore, 547 U.S. 250, 256 (2006)

(cleaned up).

To prevail on its First Amendment retaliation claim, the

AP must demonstrate that (1) it engaged in protected

expression; (2) a government actor took a materially adverse

action against it; and (3) there is a causal relationship between

the protected expression and the adverse action. Aref v. Lynch,

833 F.3d 242, 258 (D.C. Cir. 2016); Wilson, 142 S. Ct. at 1260–

61. The White House has narrowed our inquiry by frankly and

publicly stating that it excluded the AP because of its protected

speech, specifically, the AP’s refusal to adopt Gulf of America

in its Stylebook. The only disputed question, therefore, is

whether the AP’s exclusion from these spaces was a

“materially” adverse action for the purposes of a First

Amendment retaliation claim. Wilson, 142 S. Ct. at 1261

(distinguishing between “material” and “immaterial” adverse

actions, only the former of which gives rise to an actionable

retaliation claim).

A materially adverse action is generally one that deprives

a person of certain property rights or infringes a liberty interest.

For instance, loss of employment or the withdrawal of a

business license or permit may qualify as a materially adverse

action. See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 283–85 (1977) (decision not to rehire

employee); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310,

1314 (9th Cir. 1989) (suspension of regulated entity’s permits).

22

Other materially adverse actions include retaliatory arrest or

prosecution. See Nieves v. Bartlett, 139 S. Ct. 1715, 1721–22

(2019) (arrest); Hartman, 547 U.S. at 256–57 (prosecution). By

contrast, courts have held that criticisms or reprimand do not

constitute adverse actions. See, e.g., Wilson, 142 S. Ct. at 1259–

60 (holding that a verbal censure by the board of a public

college was not a materially adverse action, in part because

censures have been a common feature of government

assemblies since colonial times).

The White House’s choice of who to allow into the Oval

Office is simply not like a decision about a government benefit

or license. First Amendment concerns may be raised “[w]hen

the government interacts with private individuals as sovereign,

employer, educator, or licensor, … [b]ut those cases are not

this one.” Id. at 1262. Choosing who may observe or possibly

speak with the President in these spaces is not the type of action

that supports a retaliation claim. Rather, it is more akin to a

decision about how the President wields the bully pulpit.9

Furthermore, in determining whether a First Amendment

retaliation claim is actionable, courts may be guided by “long

settled and established practice[s].” Id. at 1259. White House

9

Our dissenting colleague emphasizes that the denial of a

government benefit based on speech is often actionable. Pillard, J.,

dissenting, at 7–8. While this is generally true, the press pool is in no

way a government benefit program. Denying unemployment

benefits, tax exemptions, or trademarks on the basis of viewpoint can

support a First Amendment retaliation claim. Denying access to

observe or speak with the President in his private spaces cannot. The

dissent acknowledges that the President may take viewpoint into

account when granting interviews to select journalists. Id. at 17–18.

Our holding today reflects the fact that granting access to spaces such

as the Oval Office is more like granting interviews than like denying

unemployment benefits.

23

staff, not to mention the President, often form relationships

with reporters who cover the administration. James A. Jacobs,

The President, the Press, and Proximity, WHITE HOUSE

HISTORICAL ASSOCIATION (Mar. 1, 2015),

https://www.whitehousehistory.org/the-president-the-press-

and-proximity. Hard pass holders and press pool members

daily jockey for access to certain privileged spaces and to

senior administration officials. As the AP acknowledges (and

the district court recognized), the White House can and does

reward journalists with advantages like interviews with the

President and the opportunity to ask questions at press events.

Such viewpoint-based preferences occur at every level of

government in the relationship between elected officials and

the press. See Baltimore Sun, 457 F.3d at 417 (describing how

reporters routinely “cultivate access” to government officials).

These pervasive practices simply do not give rise to a

retaliation claim, regardless of how valuable the access may be.

The AP and the district court again lean heavily on the

history of the press pool as an institution. But the AP cannot

adversely possess a seat in the Oval Office, no matter how long

its tradition of access. The press pool was a creation of the

White House Correspondents’ Association, a private

organization established by the press to manage itself. The

press pool gave privileged access to certain outlets in the

established media. Although the White House for many years

accepted this private arrangement between journalists, that

arrangement had no First Amendment status. Prior to the

Correspondents’ Association’s inception, no defined press

group covered the White House. Presidents decided which

journalists received privileged access, and the type and

frequency of access varied by administration. Jacobs, The

President, the Press, and Proximity. The Trump administration

has returned to the old system. It will no longer rely on the

Correspondents’ Association to select the members of the press

24

pool and instead will determine for itself which journalists to

admit to the Oval Office and other similar spaces for

presidential events.

The AP also relies on the fact that the White House has not

abolished or replaced the press pool and therefore cannot

exclude journalists from the pool on the basis of viewpoint. The

emphasis on the press pool as a standalone entity does not

transform the AP’s exclusion into a materially adverse action.

This is particularly true because the AP concedes it has no First

Amendment right to privileged access within the press pool or

to events in such restricted spaces as the Oval Office. The AP

also acknowledges that the White House could, consistent with

the First Amendment, discriminate on the basis of viewpoint in

one-on-one interviews, small events on a particular subject

matter, or even newsgathering by groups other than the

established press pool. These realities of press coverage in the

White House reinforce our conclusion that the AP’s exclusion

from small group press events does not rise to the level of First

Amendment retaliation.

V.

We turn now to the remaining stay factors: “(2) whether

the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the

other parties interested in the proceeding; and (4) where the

public interest lies.” Nken, 556 U.S. at 426 (cleaned up). In

granting equitable relief, the stay factors are not applied

mechanically and require “individualized judgments.” Id. at

433 (cleaned up). We must focus on the particular facts of the

case, exercising judgment “to balance the equities—to explore

the relative harms to applicant and respondent, as well as the

interests of the public at large.” Int’l Refugee Assistance

Project, 137 S. Ct. at 2087 (cleaned up). In doing so, we are

25

mindful that a stay of a preliminary injunction involves the

equitable review of an extraordinary and interim equitable

remedy.

Both the AP and the Government have identified

substantial harms if they are denied relief. The White House

seeks a stay because the injunction intrudes upon “essential

Presidential prerogatives.” Nixon v. Fitzgerald, 457 U.S. 731,

743 (1982). It is “incontestable” that the Presidency comes with

the power to use the office’s “bully pulpit.” Blassingame v.

Trump, 87 F.4th 1, 14–15 (D.C. Cir. 2023) (cleaned up). The

President’s discretion to choose with whom he will speak and

travel is part of that power. On the other hand, the AP maintains

that the deprivation of its First Amendment right to be free

from unlawful viewpoint discrimination is an ongoing and

substantial harm, one that also includes significant economic

loss to its business. Elrod v. Burns, 427 U.S. 347, 373 (1976).

Although the constitutional interests are weighty on both

sides, the harm to the White House outweighs the harm to the

AP. Absent a stay, the injunction threatens to impede the

President’s ability to select which members of the press to

invite into his otherwise private workspaces. The AP, however,

may continue to exercise its free speech rights in other spaces,

including White House press facilities such as the Brady

Briefing Room. While the AP has alleged financial loss from

being denied access to the Oval Office, that harm does not, in

our view, justify an intrusion on presidential prerogatives

during this litigation.

Even if we considered the harms to be more evenly

balanced, that would simply require us “to decide the

emergency [stay] application by assessing likelihood of

success on the merits.” Labrador v. Poe, 144 S. Ct. 921, 929

(2024) (Kavanaugh, J., concurring in the grant of stay); see also

26

Washington Metro. Area Transit Comm’n v. Holiday Tours,

Inc., 559 F.2d 841, 844 (D.C. Cir. 1977) (explaining that

careful parsing of likelihood of success on the merits “may be

necessary ... when interim relief would cause substantial harm”

or “when the balance of equities” so requires). Here, we have

already explained that the White House is likely to succeed

against the AP’s challenge because the President has discretion

to determine who is admitted to highly restricted presidential

workspaces such as the Oval Office.

For the same reasons, the public interest favors a stay. See

Nken, 556 U.S. at 435 (explaining the balance of harms and

public interest factors “merge when the Government is the

opposing party”). We conclude that the preliminary injunction

intrudes on the independence of the Executive Branch and

burdens the President’s exercise of core executive powers, and

these harms warrant a stay with respect to the Oval Office, Air

Force One, Mar-a-Lago, and other similar spaces.

We decline to stay the part of the preliminary injunction

applicable to the East Room. The identified harms are less clear

with respect to the East Room, which does not share the

hallmarks of spaces like the Oval Office.

***

Throughout our nation’s history, presidents have held

crucial meetings and made historic decisions in the Oval Office

and on Air Force One. On occasion, they have welcomed the

press to observe. But these restricted presidential spaces are not

First Amendment fora, and the President retains discretion over

who has access. Because we conclude the President may,

consistent with the Constitution, exclude journalists from these

spaces based on viewpoint, the White House is likely to prevail

on its appeal of the preliminary injunction. Without a stay, the

White House will suffer irreparable harm from the court’s

27

intrusion on presidential prerogatives. We therefore grant in

part the White House’s motion for a stay pending appeal.

PILLARD, Circuit Judge, dissenting: For almost a century,

the White House has enabled the White House Press Pool, a

limited number of credentialed media organizations, to cover

the President at close range from inside the Oval Office, Air

Force One, and other government-controlled spaces. White

House staff determines which presidential activities and trips

the Press Pool covers. But participation in the Press Pool or

the broader White House press corps has never been

conditioned on the viewpoint expressed outside the Pool by any

participating news organization—until now. The issue here is

whether, when the White House authorizes the Press Pool to

travel with the President or observe an Oval Office meeting or

signing, the White House may exclude journalists or news

organizations based on their expression outside the Pool of

views the President disfavors. Neither this court nor the

Supreme Court has ever upheld the exclusion from a forum or

denial of a benefit based on a private recipient’s viewpoint

outside the forum or benefit program. Because the district

court correctly enjoined just such exclusion here, I see no basis

for a stay pending appeal.

In late January, the White House barred the Associated

Press (AP) from the Press Pool solely and explicitly because

the AP uses the term “Gulf of Mexico” in its reporting and

editorial Stylebook rather than the President’s preferred “Gulf

of America” moniker. The AP challenged its exclusion as

unconstitutional viewpoint discrimination. Following a

hearing, the district court issued a preliminary injunction

requiring White House staff to readmit the AP to Press Pool

privileges on a viewpoint-neutral basis.

Defendants concede that they ousted the AP from the Press

Pool based on the AP’s expression of its own views outside the

Press Pool. They disavow any argument that the AP’s press

coverage of the presidency, much less its Stylebook, constitutes

government speech. They insist that they have not disbanded

the Press Pool. And defendants’ only claim of “irreparable

2

harm” is the continued operation of the White House Press Pool

during this litigation in the same way it had operated since the

Eisenhower Administration without apparent objection or

challenge.

The panel’s stay of the preliminary injunction cannot be

squared with longstanding First Amendment precedent,

multiple generations of White House practice and tradition, or

any sensible understanding of the role of a free press in our

constitutional democracy. Both its public-forum and

retaliation analyses contravene the fundamental principle that

the government may not leverage its allocation of valuable

support to punish recipients for the viewpoints they express

with their own time and resources. In my view, the clear and

only choice is to deny the stay.

I.

The White House Press Pool is a subset of the

credentialled White House press corps that is regularly

admitted to smaller spaces to facilitate press coverage of the

President. The full press corps consists of more than 1,300

“hard pass” holders whom the government has vetted and

permitted to use dedicated press facilities in the White House,

Budowich Decl. ¶ 3, ECF No. 33-1;1 Ateba v. Leavitt, 133 F.4th

114, 117-18 (D.C. Cir. 2025), whereas the Press Pool ranges

from 13 to 32 journalists depending on the specific event and

space, Pl. Ex. A to Second Miller Decl., ECF No. 27-6. The

criteria for press corps membership have evolved over time, but

it is undisputed that the White House may not exclude reporters

from the press corps based solely on their viewpoint. Ateba,

113 F.4th at 122-23.

1

All citations to ECF numbers are to Associated Press v. Budowich,

No. 25-00532.

3

When the White House decides to allow members of the

press corps to cover newsworthy events occurring in limited

spaces such as the Oval Office, it does so by inviting the Press

Pool. See Hearing Tr. 82:6-13, ECF No. 45. Journalists in the

Pool generate coverage for their own organizations and

distribute “pool reports” to other media outlets that use them to

inform their own coverage of the presidency. Knight Inst. Br.

3-4, 8, ECF No. 31-1. By custom dating back to the

Eisenhower Administration, presidential staff have relied on

the White House Correspondents’ Association to determine

which news organizations are eligible to participate in the Press

Pool, either on a permanent or rotating basis. Knight Inst. Br.

4; Hearing Tr. 97:4-24.

The right of journalists in the Press Pool to participate free

from discrimination based on viewpoint “has endured even

during the eras of rockiest relations between the White House

and the press—during the Watergate investigations, and

Independent Counsel Kenneth Starr’s investigation of

President Bill Clinton.” Knight Inst. Br. 8. The Reagan

Administration briefly sought to bar television journalists from

the Press Pool—not based on viewpoint, but in an attempt to

pressure TV outlets to come to consensus on which

broadcasters would receive the available slots. Even that

temporary and viewpoint-neutral exclusion was enjoined based

on the “enduring and vital tradition of public entree . . . to the

presidential activities covered by press pools.” Cable News

Network, Inc. v. Am. Broadcasting Cos., Inc., 518

F. Supp. 1238, 1244 (N.D. Ga. 1981). Until this case,

Presidents might have openly criticized press coverage they

received—including from outlets in the Press Pool—but none

had ousted a participant from the Pool based on viewpoint. See

Reporters Comm. Br. 8-9, ECF No. 54.

4

In addition to allowing the Press Pool into the Oval Office,

Air Force One, and other limited spaces like the Cabinet Room

and Mar-a-Lago, the White House also holds larger “limited-

access” events in the East Room and other locations. Because

the East Room can only accommodate approximately 180

people, when such events are open to members of the press

corps their attendance is typically capped and managed through

an online RSVP tool. Budowich Decl. ¶¶ 12-13. Similar

limited-access events occasionally take place at other locations,

including outside the White House when the President travels.

See Associated Press v. Budowich, No. 25-00532, __F. Supp.

3d__, 2025 WL 1039572, at *5 (D.D.C. Apr. 8, 2025)

(discussing limited-access event in West Palm Beach). White

House staff confirms acceptance of press RSVPs to those

events only up to the event’s press capacity. See Hearing Tr.

80-81. Access to those events has also long been provided

without regard to a journalist’s viewpoints expressed outside

the event.

The AP, the plaintiff in this case, is a not-for-profit wire

service founded in New York in 1846 that now licenses its text

reporting and photojournalism to subscribers around the world.

Heitmann Decl. ¶¶ 2-5, ECF No. 37-1. The AP’s customers

include leading television networks, newspapers, and radio

broadcasters both in the United States and abroad; the AP

claims its journalism reaches four billion people every day.

Compl. ¶ 3, ECF No. 1; Heitmann Decl. ¶ 5. Befitting its

historical stature, the AP also is a founding member of the

White House Press Pool. Compl. ¶ 26; Budowich, 2025 WL

1039572, at *2. For decades, the White House

Correspondents’ Association assigned two of the 13 “core”

spots in the Press Pool to the AP—one for a photographer, and

one for a text reporter. Budowich, 2025 WL 1039572, at *2;

Budowich Decl. ¶ 8; Compl. ¶ 27.

5

The AP’s inclusion in the Press Pool and ability to enter

limited-access events on the same terms as other journalists

was uncontested until this administration deemed its presence

intolerable, expressly because of the AP’s failure to use

President Trump’s new “Gulf of America” nomenclature in the

AP’s own writing outside any official events. On January 20,

2025, President Trump issued Executive Order 14172,

“Restoring Names That Honor American Greatness,” which

directed that the “area formerly known as the Gulf of Mexico”

be renamed the “Gulf of America.” Exec. Order No. 14,172,

90 Fed. Reg. 8629, 8630 (Jan. 31, 2025). The AP

acknowledged the renaming in its reporting, but for its own

purposes continued to use the name “Gulf of Mexico,”

including in its influential Stylebook, a writing and editing

guide used throughout the media industry. Budowich, 2025

WL 1039572, at *3. Defendants do not dispute that they

excluded the AP’s reporters from the Press Pool and other press

events solely because the AP’s reporting and Stylebook

continued to refer to the Gulf of Mexico. See id. at *3-4; Pl.

Ex. B to Second Pace Decl., ECF No. 28-2.

The AP sued the White House Chief of Staff, Deputy Chief

of Staff, and Press Secretary in their official capacities.

Following expedited briefing on the AP’s motion for a

preliminary injunction, the district court held an evidentiary

hearing and ruled in the AP’s favor. In a thorough and well-

reasoned decision, the court preliminarily enjoined defendants

from excluding the AP based on its viewpoint from the Press

Pool or from other “limited-access” events open on a timely-

RSVP basis to members of the larger press corps. The court

ordered defendants to “immediately rescind the denial of the

AP’s access” to spaces the White House opens to the Press Pool

“when such spaces are made open to other members” of the

Pool, and to “immediately rescind their viewpoint-based denial

6

of the AP’s access to events open to all credentialed White

House journalists.” Budowich, 2025 WL 1039572, at *19.

The government appealed and sought an emergency stay

of the district court’s preliminary injunction pending our

decision on its merits. “A stay pending appeal is an

‘extraordinary’ remedy.” KalshiEX LLC v. CFTC, 119 F.4th

58, 63 (D.C. Cir. 2024). Defendants have not carried their

burden to demonstrate a “strong showing” of likely success on

the merits. Id. Nor have they shown any legally cognizable

harm from allowing the AP to participate in the Press Pool

during the pendency of this appeal. I accordingly respectfully

dissent from the order granting a stay.

II.

No precedent of this court or the Supreme Court

countenances denial of a government benefit or exclusion from

a government-created program to otherwise eligible

participants solely because of disagreement with a participant’s

point of view expressed outside the benefit or program. Public

officials often and inevitably disagree with publicly expressed

views of the journalists or news organizations that cover them.

Until now, every United States president has had the fortitude

to tolerate the presence in the White House and Oval Office of

credentialed journalists known to disagree with one or more

government-preferred viewpoints. The First Amendment

demands no less.

A.

Defendants have not made the showing critical to their stay

application that they are likely to succeed in establishing that

the First Amendment allows them to oust journalists from the

White House Press Pool based on their employing

organization’s viewpoint. See Nken v. Holder, 556 U.S. 418,

7

434 (2009). Forum analysis readily confirms that failure. My

colleagues’ effort to distinguish forum analysis is nonetheless

beside the point because the bar on viewpoint discrimination in

nonpublic forums for private speech is but one iteration of a

broader First Amendment principle strongly supportive of the

AP’s claims.

The majority’s defense of defendants’ viewpoint-based

exclusion of the AP from the Press Pool utterly disregards that

broader principle. So, too, does its assumption that the AP’s

retaliation claim is likely to fail. Denial of a tangible benefit in

retaliation for a recipient’s own viewpoint expressed elsewhere

violates the First Amendment.

“At the heart of the First Amendment’s Free Speech

Clause is the recognition that viewpoint discrimination is

uniquely harmful to a free and democratic society.” Nat’l Rifle

Ass’n of Am. v. Vullo, 602 U.S. 175, 187 (2024). Few

constitutional doctrines are as firmly established as the

principle that “ideologically driven attempts to suppress a

particular point of view are presumptively unconstitutional.”

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S.

819, 830 (1995). It is unsurprising, then, that the government

could not identify a single case approving viewpoint

discrimination—the most “egregious” form of speech

restriction, Reed v. Town of Gilbert, 576 U.S. 155, 168 (2015)

(citation omitted)—in circumstances bearing any material

similarity to this case. Oral Argument Tr. 14:24-15:19. Given

government officials’ perennial frustration with unflattering

press coverage, the absence of supportive precedent for

defendants’ action is striking.

The prohibition on viewpoint discrimination applies

equally to the imposition of penalties and the denial of benefits.

The government may not condition receipt of any otherwise-

8

available benefit or opportunity on a recipient’s endorsement

or avoidance of a particular viewpoint. That rule applies to

government benefits generally, including federal funding, tax

exemptions, trademarks, government contracts, and public-

sector employment. See Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, 570 U.S. 205, 213-14 (2013); Speiser v. Randall,

357 U.S. 513, 528-29 (1958); Matal v. Tam, 582 U.S. 218, 243-

44 (2017) (plurality opinion); id. at 248-49 (Kennedy, J.,

concurring); Iancu v. Brunetti, 588 U.S. 388, 393-94 (2019);

Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 678-81, 686

(1996); Elrod v. Burns, 427 U.S. 347, 356-57 (1976). Even

where a government program is designed to support a small

number of speakers selected on discretionary, aesthetic criteria,

it may not impose restrictions intended to punish “certain ideas

or viewpoints.” Nat’l Endowment for the Arts v. Finley, 524

U.S. 569, 586-87 (1998) (citation omitted). And even

discretionary support to public broadcasters cannot be

allocated to “curtail expression of a particular point of view.”

FCC v. League of Women Voters, 468 U.S. 364, 380, 383-84

(1984) (citation omitted). The majority errs in assuming that

that deprivation of a property or liberty interest need be shown.

Maj. at 21.

“If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, religion, or

other matters of opinion . . . .” W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 642 (1943). Indeed, the government

may not criminalize acts based on the viewpoint that motivated

them, even if the conduct itself is criminal and not First

Amendment protected. R.A.V. v. City of St. Paul, 505 U.S. 377,

391-92 (1992). “It is axiomatic that the government may not

regulate speech based on its substantive content or the message

it conveys.” Rosenberger, 515 U.S. at 828. The only exception

to the general rule is when the government engages in

9

expression of the government’s own viewpoint, that is, when it

is engaged in government speech. Pleasant Grove City v.

Summum, 555 U.S. 460, 467-68 (2009). But defendants

expressly disavow that the AP’s Stylebook or other references

to the Gulf of Mexico constitute government speech. The

upshot is that no general program for admitting the press to the

White House or the Oval Office can exclude a press outlet

based on its viewpoint.

The President’s use of the Oval Office as a platform for his

official speech does not entail governmental authority to

impose viewpoint restrictions on the Press Pool. Even where

the government funds private organizations to advance official

policy and therefore can control the viewpoint expressed within

the funded program, it may not deny support based on

disapproval of the recipient’s speech outside that program. The

government may not require private participants to “adopt—as

their own—the Government’s view on an issue of public

concern as a condition of funding.” Agency for Int’l Dev., 570

U.S. at 218. That is why the Supreme Court in Agency for

International Development held that the government violated

the First Amendment rights of an organization receiving public

support to advance the government’s HIV/AIDS prevention

mission when it required the organization to echo the

government’s opposition to prostitution in the organization’s

own work with its own funds. Id. at 218-21. The rule that

public funds may be limited to the purpose for which they are

granted does not empower the government to impose viewpoint

restrictions on grantees’ private speech. Rust v. Sullivan, 500

U.S. 173, 197 (1991) (holding that the government may not

restrict “the recipient from engaging in the protected conduct

outside the scope of the federally funded program” as a

condition of funding).

10

Whatever my colleagues mean by emphasizing that Oval

Office events “involve” governmental speech because the

President typically speaks there, Maj. at 19, the Press Pool’s

coverage of those events—let alone the content of the AP’s

Stylebook—is not governmental speech legitimately subject to

official viewpoint control. My colleagues are also wrong that

the “essential function” of the Oval Office is “defeated” by the

presence of a Press Pool free from viewpoint discrimination.

Id. The Press Pool has operated without viewpoint control for

almost a century during which presidents have communicated

directly from the Oval Office. The purpose of the Press Pool

has never been to propagandize for the President, but only to

enable reliable news coverage of his leadership. Public

officials’ prerogative to speak for the government does not

include any ability to control private parties’ speech on their

own behalf, even when that speech relates to the government’s

message.

Defendants concede that the AP had been barred from the

Press Pool solely because of references to the Gulf of Mexico

in its own writing. Hearing Tr. 190:17-24; see also Budowich,

2025 WL 1039572, at *3. They gave no other, constitutionally

defensible basis for the AP’s exclusion. There is no finding—

nor was there any evidence—that the AP’s activity within the

Press Pool was inappropriate, disruptive, distracting, an

invasion of privacy, or in any other way distinguishable from

that of representatives of the media outlets that the White

House still allows to report from the Oval Office. And

defendants have (correctly) disavowed the argument that their

discriminatory treatment of the AP can be understood as

regulation of the government’s own speech. Budowich, 2025

WL 1039572, at *10; see Oral Argument Tr. 4:8-17.

The only basis for defendants’ action is that the AP had

expressed—outside the Oval Office and while speaking in its

11

own capacity with no government support—a point of view

that the White House disagreed with and sought to “suppress.”

Minn. Voters All. v. Mansky, 585 U.S. 1, 12 (2018) (quoting

Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S.

37, 46 (1983)). Even without any forum analysis, that resolves

this case.

B.

Forum analysis powerfully reinforces that conclusion.

The AP’s exclusion from the Press Pool violates the bedrock

principle that the government may not exclude private speakers

from a government-created forum, even a nonpublic forum,

based on their viewpoint. See, e.g., Mansky, 585 U.S. at 11-12;

Perry Educ. Ass’n, 460 U.S. at 46; Int’l Soc’y for Krishna

Consciousness v. Lee (ISKCON), 505 U.S. 672, 678-79 (1992).

When the government imposes restrictions on the use of public

property for private expression, such as by limiting speech

“only in a specific location,” the government must abide by the

First Amendment’s public forum doctrine. Mansky, 585 U.S.

at 11. Every type of forum recognized under the First

Amendment, be it a “traditional public forum,” “designated

public forum,” “limited public forum,” or “nonpublic forum,”

shares a baseline prohibition on viewpoint discrimination. See

ISKCON, 505 U.S. at 678-79.

The Press Pool readily qualifies as at least a nonpublic

forum. Spaces that White House staff open for journalists’

newsgathering and nongovernmental communication have

consistently been held to be nonpublic forums. See Ateba, 133

F.4th at 122-23. The default category in forum analysis is the

nonpublic forum, which includes “all remaining public

property” that does not qualify as a traditional, designated, or

limited public forum. ISKCON, 505 U.S. at 678-79.

Nonpublic forums include any government-controlled space

12

that “is not by tradition or designation a forum for public

communication,” but where private expressive activity

nonetheless occurs. Mansky, 585 U.S. at 11 (quoting Perry

Educ. Ass’n, 460 U.S. at 46). A space can qualify as a

nonpublic forum even if it was not specifically opened “for

purposes of providing a forum for expressive activity,” so long

as “such [private expressive] activity occurs.” Cornelius v.

NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 805 (1985).

The White House Press Pool is a forum even when it

convenes outside the White House, such as on Air Force One

or at Mar-a-Lago. A public “space” may refer to “a forum more

in a metaphysical than in a spatial or geographic sense, but the

same principles are applicable.” Rosenberger, 515 U.S. at 830;

see id. (public university funding opportunity for student

activities); Cornelius, 473 U.S. at 797 (federal government’s

Combined Federal Campaign charity drive); Perry Educ.

Ass’n, 460 U.S. at 48-49 (public school’s internal mail system).

In a nonpublic forum, the government enjoys the most

“flexibility to craft rules limiting speech” and “may reserve

such a forum ‘for its intended purposes, communicative

or otherwise,’” but any such limits must be “‘reasonable and

not an effort to suppress expression merely because public

officials oppose the speaker’s view.” Mansky, 585 U.S. at 11-

12 (emphasis added) (quoting Perry Educ. Ass’n, 460 U.S. at

46).

The application of nonpublic forum analysis in this case is

straightforward. The Press Pool is not materially distinguish-

able from previously recognized nonpublic forums. In Sherrill

v. Knight, 569 F.2d 124 (D.C. Cir. 1977), we held that, in light

of the “important [F]irst [A]mendment rights implicated by

refusal to grant White House press passes to bona fide

Washington journalists, such refusal must be based on a

compelling governmental interest” and cannot be “based upon

13

the content of the journalist’s speech.” Id. at 129-30. In Ateba,

we had “no trouble” confirming that, while “Sherrill predated

modern forum analysis, its description of the [White House]

Press Area fits the definition of a nonpublic First Amendment

forum” for which regulations on expression must be

“viewpoint neutral.” 133 F.4th at 122-23.

There is no principled basis for exempting the press’s

activities in any White House “press area” from the

requirement of viewpoint neutrality. When the White House

Press Pool convenes in the Oval Office, just as when the

broader press corps convenes in another White House location,

it does so to engage in newsgathering. To that end, Pool

members communicate text and photos to editors and the

broader public, all of which is nongovernmental “expressive

activity occurring on federal property.” Cornelius, 473 U.S. at

805. The Press Pool convenes at times identified by White

House staff. It works in proximity to the President because the

White House itself has established, through decades of practice

and formal policy, that one of the “intended purposes” of the

spaces closest to him is to enable the press to cover the

President. See Perry Educ. Ass’n, 460 U.S. at 46; see also

Reporters Comm. Br. 7-10 (discussing the history of the Press

Pool). “Gathering information about government officials in a

form that can readily be disseminated to others serves a

cardinal First Amendment interest in protecting and promoting

the free discussion of governmental affairs.” Price v. Garland,

45 F.4th 1059, 1070-71 (D.C. Cir. 2022) (quoting Glik v.

Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)).

The government confirmed that the White House has not

abolished the Press Pool. Oral Argument Tr. 69:13-18. First

Amendment questions as to how and why the government

might replace the Pool with a different system for press access

are not before us. Nor is this a case of permissible restrictions

14

on expression within the Pool “based on subject matter [or]

speaker identity.” Cf. Cornelius, 473 U.S. at 806. Defendants

identify nothing about the AP—apart from its own viewpoint

expressed outside the forum—as disqualifying it from the Press

Pool. What the government seeks to defend here is the

exclusion of one news outlet based on its disfavored viewpoint.

Defendants insist that applying forum analysis here is

“startlingly counterintuitive,” because the Press Pool convenes

in “intimate spaces” that are “restricted” and function as “the

personal office space” of the President. Stay Mot. 13. As

discussed above, even apart from forum analysis, the White

House is barred from denying benefits based on the recipient’s

viewpoint expressed outside the program, so it is hardly

startling that forum analysis leads to the same conclusion.

In any event, defendants offer no support for excepting the

Press Pool from forum analysis. The fact that the Oval Office

is generally closed to the public is simply another way of

saying that it is “not by tradition or designation a forum for

public communication,” i.e. that it is a nonpublic forum.

Mansky, 585 U.S. at 11 (quoting Perry Educ. Ass’n, 460 U.S.

at 46). Government office buildings are paradigmatic

nonpublic forums. Ateba, 133 F.4th at 121-22. And the

security restrictions applicable to the Oval Office do not alter

the calculus. The entire White House is under tight security,

but when spaces within are open to White House-credentialed

journalists, exclusions are impermissible if “based upon the

content of the journalist’s speech.” Sherrill, 569 F.2d at 129;

see also Ateba, 133 F.4th at 122-23. That same principle

applies when the Oval Office is open to the Press Pool.

Defendants’ suggestion that the First Amendment is

inapplicable because journalists’ activities in the Press Pool are

not communicative, see Stay Mot. 14-15, is wrong as a factual

15

and legal matter. As for the facts, the district court found that,

when journalists are in the Press Pool, they consistently engage

in “near-instantaneous” communication with editors, other

reporters, and (by extension) the broader public when in the

Oval Office. Budowich, 2025 WL 1039572, at *11. The

government makes no clearly-erroneous challenge to that

finding.

The law, too, is on the AP’s side in treating newsgathering

as communicative. Defendants rely on Price v. Garland, which

held public forum analysis inapplicable to a restriction on

filmmaking in public parks insofar as the restriction applied to

the noncommunicative act of taping the film for potential

future screening. 45 F.4th at 1069-71. But Price itself

distinguishes its facts from newsgathering. It disclaims the

applicability of its holding to “[g]athering information about

government officials in a form that can readily be disseminated

to others”—that is, “news-gathering.” Id. at 1070-71, 1075

(formatting altered); see also id. at 1071 n.*** (noting that

“[f]orum analysis may well apply to live streaming, which is

communicative activity, albeit to people who are not

necessarily located in the forum in which the streaming is

conducted.”).

More to the point, even as Price declined to apply public

forum analysis to filmmaking that it deemed

“noncommunicative,” it applied the nonpublic forum standard

that the AP relies on here, confirming that any “restriction must

not discriminate against speech on the basis of viewpoint, and

the restriction must be reasonable in light of the purpose served

by the forum.” Id. at 1072 (emphasis added) (quoting Good

News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001));

see also id. at 1076 (Henderson, J., concurring). The same is

true of Bryant v. Gates, on which the majority also relies, Maj.

at 19. 532 F.3d 888, 897 (D.C. Cir. 2008) (noting that a

16

military newspaper’s advertising section that rejected plaintiff

ads was a “nonpublic forum” for which restrictions on speech

“need only be reasonable in light of the purposes of the forum

and viewpoint-neutral.”) (emphasis added). Both Price and

Bryant affirmatively support the AP’s claim that the

government’s action to suppress its viewpoint violates the First

Amendment.

Contrary to defendants’ suggestion, forum analysis does

not require the intended audience to be “physically present in

the putative forum.” Stay Mot. 14. See Maj. at 17 (similarly

suggesting that forum analysis does not apply when the

expressive activity is directed “outside the forum”). The

importance of free expression via radio, broadcast, and—

increasingly—digital communication confirms why applying a

“physical presence” requirement to forum analysis would be

nonsensical and arbitrary. The Supreme Court in Arkansas

Educational Television Commission v. Forbes, 523 U.S. 666

(1998), used forum analysis to consider a candidate’s claim of

exclusion from a debate on public television even though its

audience was doubtlessly not limited to people “physically

present in the putative forum.” Id. at 676. What is more,

neither the government nor the majority makes any effort to

explain how, if newsgathering in the Oval Office is directed

“outside the forum,” the same is not equally true of the

admittedly protected activity of the broader press corps in

places like the Brady Briefing Room. They cannot square

viewpoint-based prohibitions on uses of digital media on

government property with the First Amendment.

Defendants’ (and the majority’s) principal argument is that

the President has unlimited discretion to pick “which

journalists to grant special access unavailable to other members

of the press corps.” Stay Mot. 16. Their sole precedent is

Baltimore Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir. 2006),

17

which is both inapposite and not binding on this court. The

plaintiff journalists in Baltimore Sun objected to government

officials’ refusal to grant them interviews or return their calls.

Id. at 413. Judicial relief would have required the defendants

to speak with certain reporters. Any such command would

have strained the basic principle that “[t]he First Amendment’s

Free Speech Clause does not prevent the government from

declining to express a view,” and that the government may

choose for itself “what to say and what not to say.” Shurtleff v.

City of Boston, 596 U.S. 243, 251 (2022); see also Pleasant

Grove City, 555 U.S. at 467 (“A government entity has the right

to ‘speak for itself.’”) (quoting Bd. of Regents of Univ. of Wis.

Sys. v. Southworth, 529 U.S. 217, 229 (2000)).

The AP does not assert a right to have the President return

its phone calls, or to “interact and speak with government

officials.” See Budowich, 2025 WL 1039572, at *12-13. What

the AP challenges is its reporters’ and photographers’

exclusion from a government program for which it is otherwise

fully eligible and has long participated, based solely on the

AP’s own expression in its Stylebook and reporting. The

district court assumed that “government officials cannot be

forced to speak with reporters,” but distinguished Press Pool

participation from the individualized invitations to interview

the President or other government officials at issue in

Baltimore Sun. Id. at *13. Unlike invited interviews that

“would not happen but for the outlet’s presence,” the Press

Pool covers events that “would happen whether any particular

outlet had a reporter there or not.” Id. The district court also

noted that Press Pool members are often at a distance that

prevents them from having interview-like “substantive

conversation[s]” with officials the Pool covers. Id. Moreover,

when the President decides whom to call back or invite in for

an exclusive interview, he is engaged in government speech

and choosing who to employ in expressing his message. That

18

government speech function is simply not at issue here, and

defendants have properly disavowed that their exclusion of the

AP turns on any government speech. The fact that one need

not return every press call does not mean one can exclude

journalists from general newsgathering opportunities based on

their disfavored views outside the program.

The defendants do not engage with those distinctions but

sweep them aside to assert a legal prerogative of unprecedented

breadth. In their view, “when the President deals with the

press, he is permitted to consider the nature of a journalist’s

coverage in deciding how much access to give them.” Stay

Mot. 19. But the “access” to interview government sources in

Baltimore Sun should not be conflated with “access” to forums

on government property that are established to enable

journalists to report on the government’s activities. We have

held that the White House may not deny those reporters that

“special access” solely because they dislike the reporters’

viewpoints. Sherrill, 569 F.2d at 129; see Ateba, 133 F.4th at

121-23. The Seventh Circuit in John K. MacIver Inst. for Pub.

Policy, Inc. v. Evers, 994 F.3d 602 (7th Cir. 2021)—an out-of-

circuit case that, unlike Baltimore Sun, is directly relevant to

the issue before us—recognized the same distinction when it

held that the Wisconsin governor’s limited-access press

conferences (unlike individual interviews) were nonpublic

forums as to which viewpoint discrimination was

constitutionally prohibited. Id. at 607, 610.

My colleagues further reason that the President has an

unlimited power to allocate necessarily restricted benefits like

Press Pool membership, and that the Press Pool’s activities are

sufficiently closely related to government speech to lose

independent First Amendment protection. Maj. at 17-19. Both

steps of that analysis are off base. The limited size of the Press

Pool does not open the door to viewpoint-based selection.

19

Contrary to my colleagues’ characterization of Finley, Maj. at

17-18, even when analyzing the limited set of grants at issue

there, the Supreme Court acknowledged that would have been

a “different case” if the government engaged in “invidious

viewpoint discrimination” in its allocation of arts grants. 524

U.S. at 586-87. And, while my colleagues suggest that forum

analysis is inapplicable because the AP’s activities somehow

“involve” government speech, Maj. at 19, the government itself

disavows reliance on government speech—for good reason.

The Supreme Court has expressly warned against such

“dangerous misuse” of the government speech doctrine: “If

private speech could be passed off as government speech by

simply affixing a government seal of approval, government

could silence or muffle the expression of disfavored

viewpoints.” Matal, 582 U.S. at 235 (Alito, J., delivering the

opinion of the court). The AP’s references to the Gulf of

Mexico speak only for the AP, not the government.

The majority’s characterization of the Press Pool is also

problematic because it seems equally applicable to the entire

White House press corps, which we have squarely held is

protected from viewpoint discrimination. The press corps, like

the Pool, is a select subset of journalists seeking to gather news

and engage in nongovernmental expression in a manner that,

by the majority’s terms, apparently “involves” the

government’s efforts to communicate to the public. But my

colleagues duck the question whether their position applies to

access to other White House spaces like the East Room. Maj.

at 26. Their attempts to distinguish the Brady Room are also

contrary to precedent, as they seem to rest either on arbitrary

numerical cutoffs or the notion that a space must be opened

“for purposes of providing a forum for expressive activity” to

merit First Amendment protections—a prerequisite the

Supreme Court has expressly disavowed for nonpublic forums.

Cornelius, 473 U.S. at 805; cf. Maj. at 11, 18-19.

20

None of this analysis rests on any affirmative right of AP

reporters to be present in the Oval Office. Plaintiffs do not

argue that the White House is constitutionally obliged to

operate a Press Pool, any more than the government in

Cornelius was required to organize the Combined Federal

Campaign for charitable fundraising, the school district in

Perry Education Association was required to establish an

internal school mail system, or the television station in

Arkansas Educational Television Commission was required to

host a candidate debate. But once the government chooses to

permit a forum for private expression in a government-

controlled space, the First Amendment forbids viewpoint-

based restrictions on who may participate. That is why neither

government counsel nor my colleagues cite a single case

permitting viewpoint-based exclusion from nonpublic

forums—or, indeed, any case permitting the government to

condition a government benefit on a private recipient’s

viewpoint expressed outside the government funded program.

Defendants have not shown a “strong likelihood” under

existing precedent that they will succeed on the merits, as they

must do to establish entitlement to a stay pending appeal of the

district court’s injunction.

C.

The government’s defense against the retaliation claim is

unlikely to succeed for all the same reasons. The majority

concludes that the AP suffered no retaliation because its

exclusion from the Press Pool was “not a materially adverse

action” for First Amendment purposes. Maj. at 22. The

majority reasons that the government did not impose a

punishment on the AP or deprive it of property, and so no

retaliation occurred. But as discussed above, the exclusion was

retributive, and in any event the First Amendment prohibits

even the denial of wholly discretionary support or benefits in

21

retaliation for a recipient’s exercise of speech rights outside the

supported activity or program.

When an organization accepts government support—

including support to advance the government’s message—the

government cannot condition it on viewpoint-based restrictions

on private recipients’ independent speech. Thus, the

government could not deny HIV/AIDS prevention funding to

Alliance for Open Society based on that group’s viewpoint,

even though the Alliance had no independent right to receive

government funding for such activity. Agency for Int’l Dev.,

570 U.S. at 218. It could require recipients of Title X funding

to refrain from abortion advocacy in the Title X program itself,

but could not impose viewpoint restrictions on recipient

organizations’ “separate and independent” activities. Rust, 500

U.S. at 196-97. Artists have no freestanding “right” to

government funding by the National Endowment for the Arts,

nor does the Corporation for Public Broadcasting have any

independent “right” to government support. But in each

instance, denying such benefits based on the recipients’

viewpoints would violate the First Amendment, especially

where those views were expressed outside the government

benefit altogether as the AP’s were here. The majority’s novel

contention that speech-based retaliation claims require a

deprivation of a property right or infringement of a liberty

interest are directly at odds with the principles outlined in

Agency for International Development, Rust v. Sullivan, FCC

v. League of Women Voters, and NEA v. Finley.

My colleagues seek to analogize the AP’s treatment to that

suffered by the plaintiff in Houston Community College System

v. Wilson, 595 U.S. 468 (2022). But in Wilson, an elected

official received only a “purely verbal censure” in response to

his expression. Id. at 475. Nobody disputes that the White

House may, in its own speech, criticize the AP’s viewpoint.

22

But excluding the AP from even a wholly discretionary federal

benefit goes far beyond that.

III.

Defendants have also failed to demonstrate the second

“critical” Nken factor—that they will suffer irreparable harm

absent a stay. 556 U.S. at 434. The district court’s preliminary

injunction forbids exclusion of the AP’s journalists “based on

the AP’s viewpoint when such spaces are made open to other

members of the White House press pool.” Budowich, 2025 WL

1039572, at *19. The district judge observed that the “defense

has not argued that an injunction would affect [the President’s]

constitutional authority in any way.” See id. at *19 n.9.

Defendants assert they are harmed because the injunction

“restricts the White House’s discretion from making its own

judgments about whom it will admit into some of the most

restricted spaces on the planet.” Stay Mot. 21-22; see Stay

Reply 9 (asserting that “the President has been forced to

relinquish control over who may enter the Oval Office”). But

it is the White House staff, not the members of the Press Pool,

who decide when the Pool reports from the Oval Office. And

the injury as defendants define it would seem to flow from the

presence of unaligned reporters anywhere in the White House.

Yet our circuit’s precedent is clear that viewpoint-based

restrictions on White House press access to other areas violate

the First Amendment. Sherrill, 569 F.2d at 129. We have so

held even though we thereby restrict the White House’s

discretion over places under the highest levels of government

control. Inherent in the notion of forum analysis is that, when

it permits the use of public resources for private expression, the

government cannot exclude selected private speakers whose

views it dislikes.

23

Counsel for the government belatedly argued that the

presence in the Oval Office of journalists with disfavored

viewpoints irreparably harms the President’s “dignity” or

“autonomy.” Oral Argument Tr. 28-29, 70-71. In a similar

vein, my colleagues assert that barring viewpoint

discrimination against Press Pool members impairs Executive

“independence.” Maj. at 1, 26. But the effect of the

preliminary injunction is confined to disabling defendants from

“suppress[ing] expression merely because public officials

oppose the speaker’s view.” Mansky, 585 U.S. at 12 (quoting

Perry Educ. Ass’n, 460 U.S. at 46). The uncontested record

evidence establishes that every President since at least

Eisenhower has endured the only real-world injury asserted by

the government here: the proximity on government property of

some member of the press associated with a view the President

disfavors. That “injury” is ubiquitous and inescapable in every

single public official’s engagement in the rough and tumble of

the political arena. The notion that any public official—let

alone the President of the United States—could be irreparably

harmed by attendance within the Press Pool of the carefully

vetted, nondisruptive journalists who work for the AP is

extraordinary.

Finding irreparable harm to Executive dignity, autonomy,

or independence in the context of this case so attenuates Nken’s

irreparable harm factor as to nullify it in cases in which the

Executive seeks a stay. I cannot credit such a novel and

amorphous approach to the requirement of a showing of

irreparable harm.

IV.

The balance of equities and the public interest also

disfavor staying the district court’s injunction. As the district

court correctly found, the AP suffers irreparable injury when it

24

is excluded from press events because of its viewpoint. “The

loss of First Amendment freedoms, for even minimal periods

of time,” constitutes irreparable harm when the plaintiff

“demonstrates that First Amendment interests are either

threatened or in fact being impaired at the time relief is sought.”

Nat’l Treasury Emps. Union v. United States, 927 F.2d 1253,

1254 (D.C. Cir. 1991) (Thomas, J.) (formatting altered). And

the AP is also suffering significant competitive harms as its

exclusion undermines its position in the global media market.

In its stay motion, the government did not dispute the district

court’s conclusion that those losses, too, are likely to be

irreparable. See Budowich, 2025 WL 1039572, at *18.

The public interest also overwhelmingly favors press

outlets’ ability to report on public officials, including the

President in the Oval Office, without the government punishing

some and thereby chilling others into self-censorship if they

use words that politicians dislike. The harm of publicly

punishing disfavored viewpoints “does not end” with an

individual target but extends “to other pillars of our

constitutional order” who thereby learn “they engage in

protected activity at their peril.” Jenner & Block LLP v. U.S.

Dep’t of Justice, No. 25-916, __F. Supp. 3d__, 2025 WL

1482021, at *23 (D.D.C. May 23, 2025) (formatting altered).

“Not only newsmen and the publications for which they

write, but also the public at large have an interest protected by

the [F]irst [A]mendment in assuring that restrictions on

newsgathering be no more arduous than necessary, and that

individual newsmen not be arbitrarily excluded from sources

of information.” Sherrill, 569 F.2d at 129-30. That is why the

Supreme Court recognized that “news gathering is not without

its First Amendment protections,” and that “[o]fficial

harassment of the press . . . to disrupt a reporter’s relationship

with his news sources would have no justification.” Branzburg

25

v. Hayes, 408 U.S. 665, 707-08 (1972). Even Newsmax, a

media outlet not known for criticizing President Trump, joined

with scores of news outlets to express dismay at the AP’s ban

because “a future administration may not like something

Newsmax writes and seek to ban us.” Reporters Comm. Br. 5.

The First Amendment recognizes press freedom as vital to

an informed citizenry. Constitutional protection of news

organizations from official punishment for what they say is

essential to “the free discussion of governmental affairs” that

the public relies on to “effectively participate in and contribute

to our republican system of self-government.” Globe

Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S. 596,

604 (1982) (formatting altered). The central function of press

freedom is fatally weakened when the government bullies press

outlets into compliance by depriving them of otherwise

available forums for expression based on their viewpoint. The

public interest is powerfully served by the district court’s order

preliminarily enjoining defendants’ undisputedly viewpoint-

based punishment of the AP.

V.

In granting a stay, my colleagues assert a novel and

unsupported exception to the First Amendment’s prohibition of

viewpoint-based restrictions of private speech—one that not

even the government itself advanced. And they accept an

equally unprecedented notion of harm to presidential

“independence” when professional journalists are “permit[ted]

to observe him” from the Press Pool despite the President’s

disagreement with something their news organization

published. Stay Mot. 1, 22.

Make no mistake as to why it matters that the panel

majority accepts these theories. In the short term, the court

allows the White House to rely on viewpoint to exclude the AP

26

from the Press Pool pending a final decision on the merits, a

process that typically takes months. And, looking further

ahead, if any merits panel were to accept those theories, the

result would be a Press Pool—and perhaps an entire press

corps—limited during Republican administrations to the likes

of Fox News and limited to outlets such as MSNBC when a

Democrat is elected. More to the point, if the White House

were privileged to exclude journalists based on viewpoint, each

and every member of the White House press corps would

hesitate to publish anything an incumbent administration might

dislike. Factually accurate journalism unflattering to the

incumbent administration would not long endure.

The press corps and its avatar Press Pool were established

and preserved for generations to foster the objective coverage

of the United States presidency that has been a defining

element of our constitutional democracy. The Press Pool is one

of the most consequential forums for national political news

reporting. And the AP is a respected and established wire

service that functions as a vital source of news for a daily

domestic and international audience of billions of readers,

including countless news organizations at home and around the

world that rely on the AP’s coverage. The First Amendment

undeniably protects the AP’s right to its own opinion. Yet the

White House has defiantly conditioned the AP’s participation

in the Press Pool on the organization’s endorsement of the

President’s official decision to rename the Gulf of Mexico as

the Gulf of America. Purporting to respect the First

Amendment while allowing exclusion of journalists from the

Press Pool based on viewpoint will quickly erode the

27

independence of any press outlet hoping to retain the chance to

cover the White House at close range.

In my view, the government does not come close to

establishing entitlement to a stay. I therefore respectfully

dissent.