Trump Seizes the Press Pool

One of Trump’s first executive orders was a proclamation that the Gulf of Mexico would now be known as the Gulf of America. Conservative politicians and media quickly got on board - this is right up their alley, the perfect overlap of policy and trolling. Private actors complied almost as quickly, with Google changing the Gulf’s name in Google Maps. 

The Associated Press, whose style guide is used widely across the media world, declined to abide by the new naming convention. Instead, they announced that they would continue to refer to the “Gulf of Mexico” while also acknowledging the name change. This wasn’t an act of political protest: in the same announcement, they noted that they would adopt Trump’s order renaming Alaska’s Denali to Mount McKinley. Their logic was that Denali is located entirely within the United States, while the Gulf of Mexico includes the territory of multiple countries and consists primarily of international waters. Given the AP is a global organization, they would use the most widely-used terminology to minimize confusion.

In retaliation, the Trump administration limited the AP’s press access, keeping them out of the Oval Office and Air Force One, unless and until they changed their style guide to reflect President Trump’s preferences. And on Friday night, the AP sued, saying that this move violated their First Amendment right to free speech. 

The basics of the White House press pool are fairly simple: the pool is a collection of news organizations assigned to cover the White House. Its membership is traditionally determined by the White House Correspondents Association, an independent organization. Sometimes there are situations (such as press gaggles in the Oval Office and Air Force One) where the pool of potential reporters is small, and the WHCA makes decisions about who gets access.

The basics of the relevant First Amendment law are pretty simple, too: the White House is not legally obligated to give press briefings, or even to provide press access at all. But if they do, they are obligated to do so in a way that does not discriminate based on viewpoint. In other words, they are free to withhold press access entirely, but if they open up press access to all reporters, they can’t exclude some based on their views or ideology.

There’s a bit of a grey area here: the White House can, for example, choose which journalists it wants to do a sit down interview with (I actually think the constitutionality of that practice is questionable, too, but it’s widely accepted). It can’t hold a large, generally accessible press conference and exclude the President’s political enemies. What the White House has done here is arguably somewhere in between: they’ve said that the AP cannot attend Oval Office or Air Force One briefings, which are smaller in scale. The White House will argue that these settings are closer to exclusive interviews than they are to larger press conferences.

The idea that the rule should fluctuate based on the size of the press conference is a little cute for my tastes. The bottom line here is simple: if the freedom of the press means anything, the most powerful person in our government blocking press access based on viewpoints or ideology should violate it.

The administration, for its part, has made it clear that what they’re doing is ideological retaliation. White House spokesperson Steven Cheung said the following:

Thanks for weighing in, Steven. The AP’s filing also includes a copy of a letter sent to them by White House Chief of Staff Susie Wiles outlining the White House’s position on the matter. She says:

This is basically how you say “we violated the First Amendment” in letter form. The explicit admission here is that the White House is limiting the AP’s press access because they think the AP is pushing a “partisan agenda.” Believe it or not, pushing a partisan agenda is generally protected by the First Amendment, so retaliating against the AP on that basis is as clear cut a violation as you’re ever going to get. A Trump-appointed federal judge seemed to agree, reportedly expressing skepticism about the administration’s position in an initial hearing (though, notably, he declined to grant the AP’s request for a temporary restraining order, which would have restored their access to the press pool while the case is being decided).

When I first drafted this piece, I wrote about how the Trump administration was likely testing the waters for broader denials of press access. That proved to be an understatement, because yesterday the administration decided to seize control of the press pool entirely, cutting out the WHCA. We’re no longer talking about making an example of the AP, we’re talking about an attempt to work the White House press apparatus like a puppet.

I am fascinated by this saga. In a political and cultural climate where “free speech” has lost its meaning, it’s almost refreshing to talk about an actual First Amendment violation. For over a decade we have been inundated with the idea that the biggest threat to free speech is emanating from the left, or at least that the left and right threaten speech in equal measure. The evidence for this has always been thin and abstract. It wasn’t that Joe Biden was cracking down on his critics, for example, but that the left was corralling its social and cultural cache to police the bounds of acceptable discourse. 

There’s an element of truth to the argument, in the sense that it is describing phenomena that are at least nominally real. There are, in fact, things that might get you in more trouble with HR now than they would have 20 years ago. But the idea that “you can’t even say [X] anymore!” has always suffered from being either or both (1) not really true and (2) not necessarily a bad thing. 

The argument has nonetheless enraptured the chattering classes; it has launched careers and built media empires. It’s been hashed out ceaselessly, at the expense of more material violations of free speech: when the Supreme Court held that police could constitutionally retaliate against speech they don’t like, the media barely flinched.

And now we have arrived at the logical endgame. An ambitious fascist is in power, launching an offensive against free speech and a free press; not in some abstruse, indirect, or spiritual way, but by using the power of the state to punish directly any speech he does not like. The media failures that got us here and the lessons to be learned are so obvious that they’re barely worth mentioning. Perhaps the only benefit of Trump’s actions is to shine some light on the pundit class. Anyone who wrote at length over the past few years about the threat posed to free speech by the left can plead to being a mere idiot. Anyone who keeps doing it is carrying water for the right.

There’s something similar going on in the law. It’s not that courts have been misdiagnosing the true threat to free expression as much as they’ve latched onto the wrong framework entirely. The Roberts Court has long embraced an individualized view of the First Amendment; that is, one that focuses on individual rights to speak rather than the broader ecosystem of public speech. The result is that the Court has embraced the rights of the wealthy to speak often and loudly, even if that means the average person’s voice is drowned out. It may also mean that the White House’s seizure of the press pool isn’t of particular concern to them. The White House, they could argue, is free to make its own choices about how to engage with the press, and a press pool hand-selected by the President isn’t inherently less free than one hand-selected by the WHCA. If you zoom in far enough, everything looks fine.

The reality, of course, is that this is poisonous to a free press. Trump wants from the media the same obedience that the weak-willed sycophants of American business have already shown him. He wants a press that will cater to him or else be sued and ostracized. He lashes out at them for the same reason that self-described free speech champion Elon Musk embraces censorship on Twitter/X when it suits him: reality is repulsive to narcissists, to the point where they are forced to build their own in order to survive. The only question lingering here is whether the federal judiciary will let them build yours, too.