One of the really good things about the Trump administration is that it rarely leaves anyone in doubt about why it does things. When Karoline Leavitt (no, I will not join the chorus of people calling her “Bullshit Barbie”) announced that the Associated Press was banned from pressers in the Oval or on Air Force 1, the American or Qatar flavor, the reason was clear, leaving no doubt for the D.C. Circuit in reaching its conclusion.

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 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.

The district court enjoined the Trump administration for banning the AP for this admitted viewpoint discrimination as a violation of the First Amendment. The D.C. Circuit didn’t question the fact that the AP was banned for heresy. Indeed, there was no doubt that was the case, that Leavitt was punishing the AP for its refusal to change its stylebook to conform with Trump’s Executive Order renaming the Gulf of Mexico to the Gulf of America. And yet, the court stayed the district court’s order.

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.

Granted, no media organization has a right to barge into the Oval, or onto AF1, at will. The Oval Office is the president’s private workspace, as a general concept. But when the doors are open to the press, does it remain private or is it converted into nonpublic media forum, even though it may be limited due to spatial considerations to only certain members of the press?

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 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 (D.C. Cir. 1977).

So the AP should be allowed in, as it always was before it failed to curry the administration’s favor?

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.

Not so fast, kiddo.

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.

“A nonpublic forum is government property that is not by tradition or designation a forum for public communication.” 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.” 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 nonpublic forum when it provides selective access for individual speakers.”

It’s one thing to contend that the press has no inherent right to enter the Oval when it’s being used as the president’s private workspace. It’s another thing entirely when the Oval is converted into a nonpublic forum by opening it to media. That would seem to be the very “affirmative step” that changes the private space to a forum for communication. Yet, the circuit held just the opposite.

Until the government opens a restricted space to private speech between private parties, such a space is not a First Amendment forum at all.

Is the circuit right, that actions which, concededly, would violate the First Amendment by punishing the AP for its viewpoint do not do so when held in space that, under other circumstances, would be private? Can the president simultaneously hold pressers in the Oval Office while claiming it to be a Constitution-free zone? Does banning the AP send a clear message that only media that bends to Trump’s will gets to come into the “room where it happens”?

*Tuesday Talk rules apply.