On Thursday, the DC Circuit Court of Appeals heard the Trump Administration's appeal to the ruling in Associated Press v. Talor Budowich.
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00:00:00All persons having business before the Honourable, the United States Court of Appeals for the District of Columbia Circuit, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this Honourable Court. You see the place.
00:00:15CASE NUMBER 25-5109, ASSOCIATED PRESIDENT V. STILLER VUDOWICH, IN HIS OFFICIAL CAPACITY, WHITE HOUSE DEPUTY CHIEF OF STAFF, E.T.L., BELLAX. MR. MCCARTHUR, FOR THE BELLAX. MR. TOBIAN, FOR THE EPPOLE.
00:00:31GOOD MORNING, MR. OAK. GOOD AFTERNOON, MR. MCCARTHUR.
00:00:36GOOD AFTERNOON, JUDGE PILLARD, AND MAY IT PLEASE THE COURT.
00:00:40THE DISTRICT COURT IN THIS CASE ENTERED AN UNPRECEDENTED INJUNCTION THAT DICTATES THE TERMS ON WHICH THE WHITE HOUSE MUST GRANT REPORTERS ACCESS TO THE PRESIDENT AND HIGHLY RESTRICTED SPACES INTENDED FOR THE PRESIDENT'S PERSONAL USE, INCLUDING THE OVAL OFFICE AND AIR FORCE ONE.
00:01:00BECAUSE THAT INJUNCTION REST ON A FUNDAMENTAL MISAPPLICATION OF THE FIRST AMENDMENT AND RAISES SERIOUS SEPARATION OF POWERS CONCERNS,
00:01:08THE COURT SHOULD STAY THE INJUNCTION PENDING APPEAL.
00:01:12I WANT TO START OUT WITH WHAT I THINK IS THE KEY LEGAL ERROR ON WHICH THIS INJUNCTION RESTS, WHICH IS THE DISTRICT COURT'S ASSUMPTION THAT ORDINARY FIRST AMENDMENT FORUM ANALYSIS APPLIES HERE AS IF WE WERE DEALING WITH AN AIRPORT TERMINAL.
00:01:30THIS COURT IN PRICE, ECHOING THE SUPREME COURT IN FORBES, INSTRUCTED THAT FIRST AMENDMENT PUBLIC FORUM DOCTRINE SHOULD NOT BE EXTENDED IN A MECHANICAL WAY TO CONTEXTS THAT DIFFER FROM THOSE IN WHICH THE DOCTRINE HAS TRADITIONALLY BEEN APPLIED.
00:01:44BUT THAT IS EXACTLY WHAT THE DISTRICT COURT DID HERE.
00:01:48WHAT IS THE BEST REASON FOR NOT APPLYING FORUM ANALYSIS?
00:01:53SO IT SEEMS TO ME LOOKING AT THE SUPREME COURT'S CASES, MANY OF THE CASES THAT DECLINE TO APPLY FORUM ANALYSIS ARE CASES INVOLVING GOVERNMENT SPEECH.
00:02:04BUT THE GOVERNMENT HERE IS NOT ARGUING THAT GOVERNMENT SPEECH IS AT ISSUE IN THE OVAL OFFICE.
00:02:10THAT'S CORRECT.
00:02:12I THINK THIS CASE DOES HAVE ELEMENTS OF GOVERNMENT SPEECH.
00:02:15BUT WE'RE NOT SAYING THAT IT FALLS DIRECTLY UNDER THAT DOCTRINE.
00:02:19TO MY MIND, THE BEST REASON IS BECAUSE THIS IS NOT A CASE IN WHICH SOMEONE IS SEEKING ACCESS TO A SPACE.
00:02:29THIS IS A CASE IN WHICH SOMEONE IS SEEKING ACCESS PRIMARILY TO A PERSON.
00:02:34SO IF YOU THINK ABOUT, YOU KNOW, A CLASSIC CASE THAT'S ABOUT ACCESS TO SPACE.
00:02:38TAKE THE SUPREME COURT'S DECISION IN WIDMAR VERSUS VINCENT.
00:02:42THAT WAS A CASE WHERE THE SUPREME COURT HELD THAT IF A UNIVERSITY OPENS ITS FACILITIES
00:02:47BROADLY TO STUDENT GROUPS, IT CAN'T EXCLUDE A STUDENT GROUP BASED ON THEIR VIEWPOINT.
00:02:52IT MUST ADMIT ALL STUDENT GROUPS, REGARDLESS OF VIEWPOINT, TO USE THE FACILITIES FOR THEIR EXPRESSIVE PURPOSES.
00:02:59HERE, UNLIKE THE STUDENT GROUPS IN WIDMAR, THE AP IS NOT SEEKING ACCESS TO, FOR EXAMPLE, THE OVAL OFFICE
00:03:08TO USE THAT SPACE FOR SOME PURPOSE OF ITS OWN INDEPENDENT OF THE PRESIDENT.
00:03:13THEY WANT ACCESS TO THAT SPACE BECAUSE THE PRESIDENT IS THERE.
00:03:17THEY WANT TO OBSERVE HIM IN THAT SPACE SO THEY CAN RECORD AND REPORT ON WHAT HE IS DOING.
00:03:23SO I THINK THAT MAKES THAT FUNDAMENTALLY DIFFERENT THAN ANY SORT OF CASE IN WHICH THE SUPREME COURT
00:03:28HAS ADDRESSED FORUM ANALYSIS.
00:03:31WHAT ABOUT THE FINDING OF THE DISTRICT COURT THAT THE AP IS ENGAGED IN SPEECH WHEN IT LIVE STREAMS
00:03:40OR SEND THINGS OVER THE INTERNET TO THEIR EDITORS OR BLOGS OR POST SOMETHING FROM THE OVAL OFFICE DIRECTLY?
00:03:48RIGHT.
00:03:49SO I THINK THE DISTRICT COURT'S ANALYSIS THERE RESTED ON A MISAPPLICATION OF THIS COURT'S DECISION IN PRICE.
00:03:57THE DISTRICT COURT READ PRICE TO HOLD THAT ORDINARY FORUM ANALYSIS APPLIES WHENEVER REPORTERS ENGAGE
00:04:06IN COMMUNICATIVE ACTIVITY ON PUBLIC PROPERTY.
00:04:10THAT IS JUST NOT WHAT PRICE HOLDS.
00:04:13PRICE DOESN'T SAY ANYTHING LIKE THAT.
00:04:15PRICE WAS ABOUT NON-COMMUNICATIVE ACTIVITY.
00:04:18BUT PRICE CONCLUDED THAT EVEN REGULATIONS ON NON-COMMUNICATIVE FIRST AMENDMENT ACTIVITY, THAT THE GOVERNMENT
00:04:28CANNOT DISCRIMINATE BASED ON VIEWPOINT.
00:04:30THERE WAS NO VIEWPOINT DISCRIMINATION AT ISSUE THERE.
00:04:32RIGHT.
00:04:33I THINK THAT JUDGE HENDERSON'S CONCURRENCE IS VERY EMPHATIC THAT SHE JOINS BECAUSE SHE UNDERSTANDS
00:04:38THE BAR AGAINST VIEWPOINT-BASED DISCRIMINATION, EVEN FOR NON-COMMUNICATIVE ACTIVITY TO BE UNAFFECTED
00:04:45BY THE COURT'S HOLDERS.
00:04:46RIGHT.
00:04:47SO THAT WAS THE RULE IN THAT CONTEXT.
00:04:48I DON'T THINK THAT RULE APPLIES IN THIS CONTEXT.
00:04:51I THINK IF YOU TRY TO APPLY THAT RULE IN THIS CONTEXT, IT WOULD BE BOTH OVER AND UNDERINCLUSIVE.
00:04:57IF YOU'RE GOING TO TAKE THE POSITION THAT ANYTIME SOMEONE IS INVITED ONTO PUBLIC PROPERTY
00:05:03AND IS ALLOWED TO TEXT THEIR FRIENDS OR TAKE PICTURES AND POST THEM ON SOCIAL MEDIA, THAT MEANS
00:05:09YOU CAN'T ENGAGE IN ANY SORT OF VIEWPOINT DISCRIMINATION.
00:05:13I THINK THAT'S A RULE THAT'S SIMPLY NOT GOING TO HOLD UP.
00:05:16THAT WOULD MEAN THE PRESIDENT COULDN'T ENGAGE IN VIEWPOINT DISCRIMINATION AND DISCRIMINATION
00:05:20IN DECIDING WHO HE INVITES, SAY, TO THE STATE OF THE UNION ADDRESS.
00:05:27WHAT'S YOUR, THERE'S A LOT OF CASE LAW ELABORATING ON THE LINE BETWEEN PUBLIC FORM AND NONPUBLIC FORM.
00:05:40WHAT, I DIDN'T, I HAVEN'T YET FOUND A LOT, AND LIKE WHAT'S YOUR BEST CASE OR HOW SHOULD I THINK
00:05:46ABOUT DEFINING THE LINE WE NEED TO TALK ABOUT HERE, WHICH IS PRIVATE FORM AND NOT A FORM AT ALL?
00:05:57BECAUSE IF IT'S A NONPUBLIC FORM, YOU LOSE.
00:06:01I THINK THAT'S RIGHT, JUDGE KATZIS.
00:06:03I THINK OUR BEST CASE IS OBVIOUSLY THE FOURTH CIRCUIT'S DECISION IN BALTIMORE SUN.
00:06:08BUT I ACTUALLY THINK WE'RE IN SORT OF A ZONE WHERE THERE ISN'T PRECEDENT THAT SPEAKS SQUARELY TO THE QUESTION PRESENTED HERE,
00:06:15WHICH IS WHETHER THE FIRST AMENDMENT REQUIRES VIEWPOINT NEUTRALITY WHEN THE WHITE HOUSE IS DECIDING WHETHER AND ON WHAT TERMS
00:06:23REPORTERS ARE AFFORDED ACCESS TO THE PRESIDENT TO OBSERVE HIM IN CLOSE QUARTERS IN PERSONAL SPACES.
00:06:30AND SO I THINK YOU HAVE TO TAKE THIS FROM FIRST PRINCIPLES.
00:06:34AND THE FIRST PRINCIPLE WHERE I BEGIN MY ANALYSIS, AND I THINK IT'S COMMON GROUND UNDISPUTED,
00:06:40IS THAT THE PRESIDENT MAY CONSIDER VIEWPOINT WHEN DECIDING WHETHER TO GRANT AN INTERVIEW TO A REPORTER
00:06:49OR WHETHER TO ANSWER A REPORTER'S QUESTIONS.
00:06:52SO THAT'S WHY THERE'S NO FIRST AMENDMENT VIOLATION WHEN THE PRESIDENT INVITES LAURA INGRAM TO THE OVAL OFFICE
00:06:59TO DO AN EXCLUSIVE INTERVIEW WITHOUT EXTENDING THE SAME INVITATION TO RACHEL MADDOW.
00:07:05AND I DON'T TAKE YOUR FRIENDS IN THE OTHER SIDE TO BE DISPUTING THAT, AND A LOT OF THE BRIEFING
00:07:14FROM THE GOVERNMENT HAS OVERTONES OF THIS IS A VERY INTIMATE SPACE, THIS IS THE PRESIDENT,
00:07:20BUT THERE'S NO CLAIM OF A SECURITY PROBLEM, OF A PRIVACY VIOLATION, AND IT'S IN THE HANDS
00:07:33OF THE GOVERNMENT WHETHER TO AUTHORIZE A PRESS POOL AT ALL.
00:07:38AND I DON'T TAKE IT THAT THERE'S ANY DISPUTE THAT AT THE TIME OF THE EVENTS IN QUESTION, IN THIS CASE,
00:07:45THERE WAS A PRESS POOL IN PLACE, SO THE NOTION THAT SOMEHOW THE PRESIDENT IS BEING FORCED TO BE
00:07:52OBSERVED BY PEOPLE HE WOULD RATHER NOT HAVE THERE AT ALL IS JUST NOT THIS CASE.
00:08:00THERE'S A DOZEN PEOPLE THERE AS A PRESS POOL, SO HE'S AGREED TO HAVE A PRESS POOL AT THAT TIME, RIGHT?
00:08:08HE HAS AGREED TO HAVE A PRESS POOL, BUT I THINK THAT'S BEGGING THE QUESTION.
00:08:12THE QUESTION IS WHETHER HE CAN, BASED ON HIS ASSESSMENT OF REPORTERS' COVERAGE,
00:08:17EXCLUDE A NEWS OUTLET FROM THE PRESS POOL.
00:08:21RIGHT.
00:08:22AND YOU RELY, YOU SAY, PRINCIPALLY ON BALTIMORE SUN, BUT TO ME BALTIMORE SUN IS,
00:08:26AND BALTIMORE SUN SAYS, IT'S ABOUT THE GOVERNMENT'S OWN SPEECH.
00:08:32IT'S NOT APPLYING, IT'S NOT SAYING TO PARTICULAR MEMBERS OF THE PRESS,
00:08:37YOU CAN'T CALL US.
00:08:39WE WON'T INTERVIEW YOU BECAUSE OF YOUR VIEWPOINT.
00:08:42IT'S SAYING TO THE, YOU KNOW, I, THE GOVERNOR, DON'T WANT TO SPEAK TO THIS PERSON,
00:08:48AND I DON'T WANT MY PEOPLE WHO ARE MY MOUTHPIECES TO ANSWER THE CALLS EITHER.
00:08:54AND HERE THERE IS NO RELIEF SOUGHT THAT WOULD REQUIRE THE PRESIDENT OR ANYONE IN THE OVAL OFFICE
00:09:03OR AIR FORCE ONE TO ANSWER QUESTIONS FROM THE ASSOCIATED PRESS OR SPEAK TO THE ASSOCIATED PRESS.
00:09:11SO THAT SEEMS TO ME THE PRINCIPLE DISTINCTION BETWEEN BALTIMORE SUN AND YOUR CASE.
00:09:18SO I DON'T READ BALTIMORE SUN, JUDGE PILLARD, TO REST ON THE GOVERNMENT'S SPEECH DOCTRINE.
00:09:24WHAT I READ THAT CASE TO SAY IS THAT BECAUSE THERE IS THIS MUNDANE AND PERVASIVE PRACTICE
00:09:30IN THE JOURNALISM INDUSTRY OF GOVERNMENT OFFICIALS EITHER GRANTING OR WITHOLDING ACCESS TO INFORMATION
00:09:38FROM REPORTERS BASED ON ITS ASSESSMENT OF THEIR COVERAGE THAT THAT IS SIMPLY A PLACE
00:09:43IN WHICH THE FIRST AMENDMENT DOESN'T INTRUDE.
00:09:46AND THAT IS ULTIMATELY WHAT THIS CASE IS ABOUT.
00:09:49THEY WANT ACCESS TO INFORMATION ABOUT WHAT THE PRESIDENT IS DOING AND SAYING BEHIND THOSE CLOSED DOORS.
00:09:56SO YOU ARGUE THAT IT DOESN'T IMPLICATE THE FIRST AMENDMENT TO GRANT SOME JOURNALISTS BETTER ACCESS
00:10:03THAN OTHER JOURNALISTS.
00:10:05AND ONE QUESTION I HAVE ABOUT THAT POSITION IS THAT WOULDN'T THAT AUTHORIZE THE WHITE HOUSE
00:10:14TO JUST RESCIND THE HARD PASSES OF JOURNALISTS WHOSE COVERAGE THE PRESIDENT DISLIKES,
00:10:21WHOSE VIEWPOINTS THE PRESIDENT THINKS ARE UNFLATTERING?
00:10:26NO, I DON'T THINK SO, JUDGE PILLARD.
00:10:28OUR POSITION IS ABOUT ACCESS TO THE PRESIDENT IN PERSONAL SPACES,
00:10:33SPACES THAT ARE SET ASIDE FOR HIS PERSONAL USE.
00:10:35I TAKE SOMETHING LIKE PERSONAL USE IN HIS ROLE AS THE PRESIDENT.
00:10:39FOR SURE.
00:10:40UNFORTUNATELY FOR PEOPLE WHO ARE IN HIGH PUBLIC OFFICE, THE PERSONAL KIND OF FADES AWAY
00:10:45BECAUSE THEY DO SO MUCH THAT'S, YOU KNOW, THEY'RE BASICALLY REDUCED TO PUBLIC FIGURES.
00:10:51AGAIN, NO PRIVACY, NO SECURITY CONCERN.
00:10:55HE WANTS TO ABOLISH THE PRESS POOL.
00:10:57I MEAN, WE'LL HEAR FROM THE OTHER SIDE, BUT I THINK HE WOULD BE ENTITLED TO DO THAT.
00:11:02BUT THE QUESTION FOR YOU IS REALLY, ONCE THERE IS THIS, YOU KNOW, SETTING UP,
00:11:09THIS INSTITUTION OF THE PRESS POOL, WHAT IS THE BASIS FOR SAYING THAT THERE CAN BE
00:11:17VIEWPOINT DISCRIMINATION?
00:11:18AND I GUESS MY SPECIFIC QUESTION IS, IF YOU'RE DISTINGUISHING BETWEEN THE OVAL OFFICE
00:11:22AND OTHER AREAS OF THE WHITE HOUSE OR OTHER PLACES THAT HARD PASS HOLDERS ARE WELCOME,
00:11:29WHAT'S THE DUCTRINAL BASIS FOR THAT?
00:11:32WHAT'S THE OVAL OFFICE BOUNDARY LINE?
00:11:35IS THERE ANY PRECEDENT WE COULD LOOK TO THAT WOULD PLACE THE OVAL OFFICE, INCLUDING WHEN IT'S
00:11:43USED FOR PUBLIC EVENTS, PUBLIC MEANING, YOU KNOW, OUTSIDE PEOPLE AND GOVERNMENTAL ACTIVITIES,
00:11:48THAT WOULD SUPPORT THAT LINE?
00:11:50RIGHT.
00:11:51SO THERE'S NOT A PRECEDENT I CAN POINT TO, JUST BECAUSE I DON'T THINK THERE'S A PRECEDENT
00:11:54THAT ADDRESSES THIS SPECIFIC SITUATION, BUT THE LINE THAT I WOULD PROPOSE TO THE COURT
00:11:58IS TO LOOK TO WHAT THE PRINCIPAL FUNCTION OF THE SPACE IS.
00:12:02THE BRADY BRIEFING ROOM IS A DEDICATED PRESS FACILITY.
00:12:06I'M HAPPY TO ACCEPT FOR PURPOSES OF THIS MOTION, THIS COURT HELD IN ATEBA THAT THAT IS A NONPUBLIC
00:12:13FORUM TO WHICH A VIEWPOINT NEUTRALITY REQUIREMENT ATTACHES.
00:12:18SO I THINK YOU CAN PUT THAT ON ONE SIDE OF THE SPECTRUM.
00:12:22FOR ME, THE THING THAT'S ON THE OTHER SIDE OF THE SPECTRUM IS WHAT I STARTED TO ANSWER
00:12:27JUDGE KATZIS ABOUT FIRST PRINCIPALS IS WHEN THE PRESIDENT INVITES SOMEONE FOR AN EXCLUSIVE
00:12:32INTERVIEW IN THE OVAL OFFICE.
00:12:34EVERYONE AGREES HE CAN CONSIDER A VIEWPOINT WHEN HE DOES THAT.
00:12:37SO THOSE ARE FOR ME SORT OF THE TWO FIXED POINTS IN WHICH I TRY TO SITUATE THIS CASE.
00:12:42AND I THINK THE QUESTION IS WHETHER THE PRESS PULL EVENTS IN THE OVAL OFFICE ARE CLOSER TO THE
00:12:47EXCLUSIVE INTERVIEW OR ARE THEY CLOSER TO THE BRADY BRIEFING?
00:12:51AND I THINK THEY ARE MUCH CLOSER TO THE EXCLUSIVE INTERVIEW.
00:12:56I THINK IT IS ONLY A MODEST EXTENSION OF THAT IDEA THAT WE ARE ASKING ABOUT.
00:13:00SO WHAT'S THE TEST?
00:13:01IF I'M WRITING AN OPINION AND I WANT TO SAY OVAL IS DIFFERENT, DOES IT INCLUDE AIR FORCE ONE?
00:13:06DOES IT INCLUDE A MAR-A-LAGO SPACE?
00:13:09AND HOW DO I KNOW ANALYTICALLY WHAT YOUR TEST IS?
00:13:14I THINK THE TEST WOULD BE IS IT A HIGHLY RESTRICTED SPACE THAT IS INTENDED FOR THE PRESIDENT'S PERSONAL USE?
00:13:24AT LEAST THAT I THINK IS A RULE.
00:13:26DOES HE KNOW THE USE IS PERSONAL WHEN HE MIGHT HAVE A HEAD OF STATE SIT WITH HIM THERE OR BE SIGNING EXECUTIVE ORDERS AND DOING OTHER MATTERS OF IMPORTANCE AND INTEREST TO THE GOVERNMENT AND THE PUBLIC?
00:13:40THAT'S STILL HIS WORKSPACE.
00:13:42AND WHETHER YOU THINK OF IT AS PRIVATE OR QUASI-PRIVATE OR PERSONAL OR PROPRIETARY FORUM, IT'S STILL VERY DISTINGUISHABLE FROM SOMETHING THAT IS SET ASIDE SPECIFICALLY AS A FACILITY FOR THE PRESS.
00:13:57BUT I THINK THE KEY CONCEPT HERE IS ONE OF AUTONOMY, BECAUSE IF YOU ASK THE QUESTION WHY IS IT THE CASE THAT THE PRESIDENT CAN ENGAGE IN VIEWPOINT DISCRIMINATION WHEN GRANTING AN EXCLUSIVE INTERVIEW, I THINK ULTIMATELY THE ANSWER IS THAT WE ALL RECOGNIZE THAT THAT IS A MATTER OF PERSONAL AUTONOMY FOR THE PRESIDENT, WHO HE CHOOSES TO REVEAL HIS MIND TO.
00:14:22MR. MCCARTHUR, SO YOU'VE FOCUSED ON THE SPACE, YOU KNOW, THE TYPE OF SPACE, THE OVAL OFFICE, AIR FORCE ONE.
00:14:29WHAT ABOUT THE NATURE OF THE PRESS POOL, WHICH ITSELF IS A VERY HIGHLY SELECTIVE, YOU KNOW, VERY SMALL GROUP OF ALL HARD PASS HOLDERS?
00:14:40AND I WONDER IF ONE ANALOGY, IT MAY NOT BE A PERFECT ANALOGY, IS TO FINLEY AND AMERICAN LIBRARY ASSOCIATION.
00:14:48BECAUSE IN THOSE CASES, THE SUPREME COURT SAID THERE'S NO FORUM IN PART BECAUSE, YOU KNOW, IN FINLEY, ARTISTS ARE GIVEN NEA GRANTS ON A HIGHLY SELECTIVE BASIS, AND THAT'S GOVERNMENT SPEECH.
00:15:00THEY DIDN'T SAY IT'S GOVERNMENT SPEECH, BUT THEY SAID BECAUSE IT'S HIGHLY SELECTIVE, IT'S NOT A FORUM.
00:15:04I DO THINK THAT IS AN ADDITIONAL FACTOR THAT YOU SHOULD CONSIDER HERE.
00:15:08SO IF SOMEONE AT THE NEA OR A LIBRARIAN IN AMERICAN LIBRARY ASSOCIATION CAN EXERCISE DISCRETION IN A HIGHLY SELECTIVE WAY OF WHAT BOOKS TO CHOOSE OR WHAT INTERNET SITES TO ALLOW IN A LIBRARY, WOULD THAT PRINCIPAL EXTEND TO THE PRESIDENT?
00:15:26I MEAN, I THINK THE PRINCIPAL EXTENDS TO THE PRESIDENT IN THESE PRIVATE SPACES, WHERE HE HAS AN INTEREST IN AUTONOMY.
00:15:35SO YOU WOULD APPLY THE SAME FINLEY STANDARD TO THE OVAL OFFICE?
00:15:42WHICH FINLEY STANDARD?
00:15:43ALLOWING THE GOVERNMENT TO CONTROL HOW IT SUPPORTS SPEAKERS THE SAME WAY AS IN FINLEY?
00:15:51TO THE SAME DEGREE UNDER THE FIRST AMENDMENT?
00:15:53I DON'T KNOW IF IT'S TO THE EXACT SAME DEGREE, BUT I THINK THAT STRAND OF THOUGHT IS IMPLICATED HERE.
00:15:58THE MASON THAT I ASK IS BECAUSE FINLEY EXPLICITLY SAYS VIEWPOINT-BASED DISCRIMINATION IS NOT ALLOWED IN THAT CONTACT.
00:16:06AND HERE THERE WAS A FINDING THAT THE ACTION WAS TAKEN FOR VIEWPOINT REASONS, AND I DON'T SEE ANYTHING IN YOUR PAPERS OR PRESENTATION THAT CHOOSES TO, YOU KNOW, TO CHALLENGE THAT.
00:16:20IT'S CLEARLY ERRONEOUS, NOR ON THIS RECORD COULD YOU.
00:16:23NO, WE'RE NOT DISPUTING THAT.
00:16:25RIGHT.
00:16:26SO IN FINLEY, WHAT IS YOUR CASE THAT GOVERNMENT, WHETHER PHYSICAL SPACE OR, YOU KNOW, SERVICES LIKE THE SECOND-CLASS MAILING IN CORNELIUS, LIKE COPYRIGHT IN METAL VERSUS TAN, WHAT IS YOUR CASE THAT THE GOVERNMENT CAN EITHER RESTRICT ACCESS,
00:16:48OR RESTRICT ACCESS TO PUBLIC SPACE OR RESTRICT BENEFITS TO WHICH SOMEONE WOULD OTHERWISE BE ENTITLED.
00:16:58YOU KNOW, THEY DON'T HAVE TO, WE DON'T FORCE PEOPLE TO BE ABLE TO EXPRESS THE PEOPLE WHEREVER THEY WANT.
00:17:03BUT IF THERE'S A PROGRAM TO WHICH SOMEONE WOULD OTHERWISE BE ENTITLED, DO YOU HAVE ANY CASE THAT ALLOWS THAT TO BE CONDITIONED ON A RECIPIENT OR A PERSON SEEKING ASK ON THEIR VIEW?
00:17:15AGAIN, I DON'T HAVE A CASE BECAUSE I DON'T THINK THERE IS ONE THAT ADDRESSES.
00:17:19THERE IS NO CASE.
00:17:21THERE IS NO CASE THAT ADDRESSES ONE WAY OR THE OTHER.
00:17:24OH, THERE ARE MANY CASES THAT SAY NO.
00:17:26NO, THIS TYPE OF SPACE.
00:17:28MITTALL AND FINLEY AND.
00:17:30THIS IS WHERE ONE OF THE PLACES WHERE I THINK THE DISTRICT COURT WENT ASTRAY IS SIMPLY ASSUMING THAT ALL GOVERNMENT PROPERTY IS CREATED EQUAL.
00:17:42OR EVEN ALL GOVERNMENT SPACES IN A GIVEN GOVERNMENT BUILDING ARE CREATED EQUAL.
00:17:48I THINK FIRST AMENDMENT ANALYSIS SHOULD BE FLEXIBLE ENOUGH TO PICK UP DISTINCTIONS BETWEEN THINGS LIKE THE OVAL OFFICE AND THE BRADY BRIEFING.
00:17:56SO IF I'M APPLYING YOUR TEST FOR WHAT IS THIS, WHY THE OVAL OFFICE IS DIFFERENT, IT'S THAT IT'S A HIGHLY RESTRICTED SPACE INTENDED FOR THE PRESIDENT'S PERSONAL USE.
00:18:11AND NOT AS A PRESS FACILITY.
00:18:13AND NOT AS A PRESS FACILITY.
00:18:15THAT SEEMS LIKE A BIG, SO IT'S REALLY WHAT YOU'RE SAYING IS ANY PLACE IN THE WHITE HOUSE THAT'S NOT A PRESS FACILITY?
00:18:21I MEAN THERE MAY BE OTHER PLACES IN THE WHITE HOUSE THAT THE ANALYSIS WOULD BE DIFFERENT.
00:18:26YOU COULD LOOK AT, FOR EXAMPLE, THE EAST ROOM.
00:18:29I THINK IF YOU TAKE, YOU KNOW, THE SPECTRUM THAT I OUTLINED EARLIER WHERE YOU'VE GOT THE BRADY BRIEFING ROOM ON ONE SIDE, THE OVAL OFFICE ON THE OTHER,
00:18:36I THINK THE EAST ROOM IS PROBABLY IN BETWEEN THOSE TWO.
00:18:39SO HOW DOES YOUR TEST APPLY TO THE EAST ROOM?
00:18:42I THINK THE EAST ROOM WOULD STILL FALL ON MY SIDE OF THE LINE BECAUSE
00:18:46YOU COULD EXCLUDE PEOPLE BASED ON THEIR VIEWPOINT.
00:18:49THAT'S CORRECT.
00:18:50PART PASS HOLDERS.
00:18:51THAT'S CORRECT BECAUSE THAT, AGAIN, IS A HIGHLY RESTRICTED SPACE WHOSE FUNCTION IS TO HOST EVENTS.
00:18:58ITS FUNCTION ISN'T AS A PRESS FACILITY.
00:19:01AND LET ME JUST GIVE YOU AN EXAMPLE HERE.
00:19:04I THINK IT HELPS TO MAKE IT CONCRETE.
00:19:06SO ONE OF THE EVENTS THAT THEY ARE COMPLAINING ABOUT HAVING BEEN EXCLUDED FROM WAS A RECEPTION IN FEBRUARY IN HONOR OF BLACK HISTORY
00:19:15MONTH THAT WAS HELD IN THE EAST ROOM.
00:19:19UNDER THE RULE THAT THEY ARE PROPOSING AND UNDER THE RULE ADOPTED BY THE COURT BELOW,
00:19:25THE WHITE HOUSE COULD NOT EXCLUDE FROM THAT EVENT A NEWS ORGANIZATION THAT IS A WHITE SUPREMACIST ORGANIZATION.
00:19:34BECAUSE THAT WOULD BE ENGAGING IN VIEWPOINT DISCRIMINATION.
00:19:38SIMILARLY, IF THE PRESIDENT DECIDED TO HOST THE PRIME MINISTER OF ISRAEL IN THE OVAL OFFICE,
00:19:44HE COULD NOT, AS LONG AS HE ADMITTED OTHER REPORTERS TO THAT EVENT,
00:19:49HE COULD NOT EXCLUDE A NEWS ORGANIZATION THAT WAS AVOIDLY ANTI-SEMITIC.
00:19:53THAT'S WHY WHEN I THINK ABOUT EXAMPLES LIKE THIS,
00:19:57THE SORT OF GOVERNMENT PROPRIETARY FUNCTION IDEA DOES INFORM THIS ANALYSIS.
00:20:04THERE IS A TIME AND A PLACE FOR WIDE OPEN, NO HOLDS BARRED,
00:20:09ALL VIEWPOINTS REPRESENTED COVERAGE OF THE ADMINISTRATION.
00:20:13AND THE WHITE HOUSE HAS SET ASIDE A SPACE FOR THAT.
00:20:16THAT IS THE BRADY BRIEFING ROOM.
00:20:18THEY HAVE THEIR 30 HARD PASSES.
00:20:20I'M NOT SURE THAT YOU'RE CHARACTERIZING THE PRESS POOL'S ROLE,
00:20:28THE WAY THE RECORD AND THE DISTRICT JUDGE HAS FOUND IT TO OPERATE.
00:20:35IT'S NOT A HURLY-BURLY FORUM WITH ALL VIEWPOINTS.
00:20:39I MEAN, THE PRESS MEMBERS OF THE POOL ARE, I THINK THE DISTRICT CORE FOUND,
00:20:4520, 30 FEET AWAY.
00:20:47THEY'RE NOT PARTICULARLY INTERACTING.
00:20:50THEY'RE OBSERVING IMPORTANT EVENTS.
00:20:57AND THEY'RE, THEY WANT TO OBSERVE, BUT THEY DON'T PARTICULARLY INTERACT.
00:21:06SO IT'S NOT, I MEAN, IN FACT, THE DISCRIMINATION HERE WAS NOT OF A VIEWPOINT
00:21:13THAT THE AP REPRESENTATIVES EXPRESSED IN THE FORUM,
00:21:20UNLIKE YOUR EXAMPLE OF A WHITE SUPREMACIST POTENTIALLY, YOU KNOW,
00:21:25MEETING WITH AND SHAKING HANDS WITH HONORED GUESTS AT A BLACK HISTORY MONTH EVENT.
00:21:31NO, MY HYPOTHETICAL DOESN'T ASSUME THAT THEY WOULD BE SAYING WE'RE DOING ANYTHING IN THAT SITUATION.
00:21:35BUT I DO THINK THAT IS A TIME AND A PLACE IN WHICH THE WHITE HOUSE OUGHT TO BE ABLE TO MAKE THAT SORT OF JUDGMENT,
00:21:42THAT THEY SHOULDN'T BE PRESENT AT THIS EVENT.
00:21:45BECAUSE I THINK THIS IS DIFFERENT FROM THE BRADY BRIEFING ROOM IN THE SENSE THAT
00:21:49THE WHITE HOUSE IS TRYING TO GET OUT ITS OWN MESSAGE.
00:21:53AND GOVERNMENT.
00:21:54BUT YOU'VE DISADVOWED THAT THIS IS GOVERNMENT SPEECH.
00:21:56I DON'T THINK IT'S A PURE GOVERNMENT SPEECH CASE, BUT I DO THINK THAT STRAND OF THOUGHT
00:22:01INFORMS HOW YOU SHOULD THINK ABOUT IT HERE, BECAUSE IN SETTINGS LIKE THIS,
00:22:05I DO THINK THEY SHOULD HAVE GREATER FREEDOM TO CURATE THE MESSAGE
00:22:08AND TO SELECT THE HIGHLY SELECT GROUP OF REPORTERS WHO ARE GOING TO BE IN THAT SPACE
00:22:15BASED ON THE DEGREE TO WHICH THEY THINK THOSE REPORTERS WILL HELP AMPLIFY THE MESSAGE THAT
00:22:20THE WHITE HOUSE IS TRYING TO GET OUT TO THE PUBLIC.
00:22:23MR. MCCARTHER, YOU'VE SAID THAT THE AP IS NOT ENGAGED IN COMMUNICATIVE ACTIVITY
00:22:28WHEN THEY'RE INSIDE THE OVAL OFFICE.
00:22:30SO HOW SHOULD WE UNDERSTAND WHAT THEY'RE DOING?
00:22:32SHOULD WE UNDERSTAND IT AS NEWS GATHERING?
00:22:36MR. MCCARTHER, IF I SAID THAT I MISSPOKE,
00:22:43THE DISTRICT COURT FOUND THAT THEY WERE ENGAGED IN COMMUNICATIVE ACTIVITY
00:22:46BECAUSE THEY COULD SEND IN REAL TIME THINGS OUT LIKE TEXTS AND PICTURES,
00:22:51BUT I REALLY DON'T THINK ANYTHING TURNS ON THAT ANALYSIS HERE.
00:22:55I DON'T THINK THE ANALYSIS WOULD BE ANY DIFFERENT
00:22:58IF THE RULE IN THE OVAL OFFICE WERE NO INTERNET, YOU CAN COME IN, YOU CAN OBSERVE, YOU CAN TAKE
00:23:04NOTES, YOU CAN TAKE PICTURES, BUT YOU CAN'T TRANSMIT ANYTHING UNTIL YOU LEAVE.
00:23:08I THINK IF THAT WERE THE RULE, THEY WOULD BE MAKING THE EXACT SAME CLAIM, WE WOULD BE MAKING THE EXACT SAME DEFENSE.
00:23:13SO I DON'T THINK ANYTHING TURNS ON THAT, BUT I DO THINK WE ARE NOT RESTRICTING THEIR ABILITY TO COMMUNICATE,
00:23:20OR AT LEAST WE'RE RESTRICTING IT ONLY IN THE SENSE THAT WE ARE DENYING THEM ACCESS TO INFORMATION.
00:23:25SO THAT'S WHAT I'M WONDERING, THOUGH.
00:23:27SO PUTTING ASIDE THE ACCESS TO THE INTERNET, YOU KNOW, IF THEY'RE JUST OBSERVING,
00:23:32AND THERE'S PROBABLY NO COMMUNICATION, AND THEN THEY'RE DOING SOMETHING LIKE NEWS GATHERING,
00:23:36IS THAT ACTIVITY, DOES THAT ACTIVITY HAVE ANY FIRST AMENDMENT PROTECTIONS?
00:23:41YES, I THINK THAT IS WHAT THIS COURT IN PRICE TALKED ABOUT AS SORT OF A PRE-COMMUNICATIVE STEP IN THE CREATION OF SPEECH.
00:23:49I THINK IT DOES HAVE, IT IS FIRST AMENDMENT PROTECTED ACTIVITY.
00:23:55SO TO AGREE WITH THE GOVERNMENT'S POSITION HERE, WOULD WE HAVE TO SAY THAT NEWS GATHERING IS NOT COVERED BY THE FIRST AMENDMENT?
00:24:03NOT AT ALL, NOT AT ALL.
00:24:05I THINK YOU WOULD HAVE TO SAY THAT IN THESE PARTICULAR CIRCUMSTANCES, WHERE YOU'RE TALKING ABOUT
00:24:10ACCESS TO A SPACE THAT'S IN THE PRESIDENT'S IMMEDIATE PERIPHERY, THAT HIS INTEREST IN AUTONOMY,
00:24:19JUST LIKE IN WHO HE REVEALS HIS MIND TO, OVERRIDE ANY FIRST AMENDMENT INTEREST IN ACCESS TO HIM,
00:24:25TO OBSERVE HIM UP CLOSE PERSONALLY, AND RECORD WHAT HE IS DOING AND SAYING, SO THAT YOU CAN LATER REPORT IT.
00:24:32THEY CAN'T FORCE THE PRESIDENT TO ANSWER THEIR QUESTIONS JUST BECAUSE...
00:24:35AND THEY'RE NOT CLAIMING THAT THEY HAVE ANY RIGHT TO FORCE THE PRESIDENT TO ANSWER THEIR QUESTIONS.
00:24:40THAT'S RIGHT.
00:24:41THAT THEY HAVE ANY RIGHT WITHOUT, YOU KNOW, VERY EXHAUSTIVE SECURITY EXAMINATION, OR THAT THEY HAVE ANY RIGHT TO SAY ANYTHING DISRUPTIVE OR DISTRACT HIM FROM HIS WORK,
00:24:51OR THAT THEY HAVE ANY RIGHT, AS THE PRESS PULL AS A WHOLE, TO BE INVITED AT MOMENTS WHEN THE PRESIDENT WANTS TO CONCENTRATE ON HIS WRITING AND HIS WORK.
00:25:03SO IT'S A LITTLE UNCLEAR TO ME WHEN YOU SAY A RIGHT OF AUTONOMY, I THINK THE OVAL OFFICE SUDDENLY SEEMS LIKE A PLACE OF SILENT RETREAT.
00:25:20AND IT'S CLEARLY NOT.
00:25:22I MEAN, HE HAS A PRIVATE STUDY, AND AS I SAID, HE CAN EXCLUDE PEOPLE WHEN HE THINKS HIS AUTONOMY SO REQUIRES PEOPLE AS A WHOLE, BUT NOT BASED ON VIEWPOINT.
00:25:33SO I GUESS I'M TRYING TO UNDERSTAND THE CONNECTION BETWEEN THE CLAIMED PREROGATIVE TO DO NOT EXCLUSION OF HUMANS OR MEMBERS OF THE PRESS,
00:25:45BUT OF PEOPLE BECAUSE OF THEIR VIEWPOINT.
00:25:50HOW IS THAT MORE CHALLENGING TO THE PRESIDENT'S AUTONOMY THAN JUST THE ABILITY TO SAY NOBODY TODAY AT ALL?
00:26:01BECAUSE THE PRESIDENT HAS SPEECH AND ASSOCIATIONAL RIGHTS OF HIS OWN, RIGHT?
00:26:07AND SO IF YOU'RE LOOKING AT CAN THE PRESIDENT DECLINE TO ANSWER ANY QUESTIONS FROM THE AP BECAUSE HE DISAGREES WITH THE AP'S EDITORIAL CHOICES?
00:26:17EVERYONE AGREES THE ANSWER TO THAT IS YES.
00:26:21THE QUESTION IS WHY?
00:26:22I THINK THE ANSWER IS BECAUSE THE PRESIDENT HAS AUTONOMY OVER HIS MIND AND WHO HE CHOOSES TO REVEAL THAT INFORMATION TO.
00:26:31THAT IS ABSOLUTELY...
00:26:32IS THE SAME THING TRUE OF A MAYOR AND A GOVERNOR?
00:26:37I THINK THE SAME THING WOULD BE TRUE OF OTHER GOVERNMENT OFFICIALS.
00:26:41OH.
00:26:42AND THE INFORMATION...
00:26:44THE SECRETARY'S...
00:26:46ON THIS POINT, YES.
00:26:48WHEN YOU'RE TALKING ABOUT WHAT'S IN THEIR MIND AND WHETHER THEY HAVE TO REVEAL THAT TO SOMEONE OR WHO THEY ADMIT.
00:26:54NOBODY IS SAYING THAT THE PRESIDENT HAS TO REVEAL ANYTHING HE DOESN'T WANT TO REVEAL.
00:27:00IT'S ONLY ABOUT WHETHER SOMEBODY IS ALLOWED WHEN THE PRESIDENT DECIDES WE'RE GOING TO HAVE A PRESS POOL ALLOWED, NOTWISTANING VIEWPOINT,
00:27:10TO BE A PARTICIPANT IN THAT AT THE TIMES WHEN THE PRESIDENT CHOOSES TO HAVE THE PRESS POOL PRESENT.
00:27:16WHAT I'M TRYING TO EXPLAIN,
00:27:18JUDGE PILLARD APPARENTLY NOT VERY SUCCESSFULLY, IS THAT IT'S THE SAME PRINCIPLE.
00:27:22THE SAME PRINCIPLE THAT SAYS THE PRESIDENT CAN CONSIDER A VIEWPOINT IN DECIDING TO WHOM HE DISCLOSES HIS MIND,
00:27:30SHOULD APPLY TO THIS ADJACENT SITUATION OF WHOM HE ADMITS TO HIS IMMEDIATE PERIPHERY IN PRIVATE, PERSONAL,
00:27:39PROPRIETARY, WHATEVER ADDITIVE YOU WANT TO USE TO DESCRIBE IT, THOSE SORTS OF SPACES.
00:27:44HE HAS ASSOCIATIONAL RIGHTS JUST LIKE HE HAS SPEECH RIGHTS.
00:27:48A COUPLE QUESTIONS.
00:27:52WHY DID YOU RESIST THE GOVERNMENT SPEECH CASE LINE, WHICH SEEMS TO ME VERY HELPFUL FOR YOU?
00:28:03THIS NOTION OF AUTONOMY.
00:28:04I MEAN, YOU'RE SORT OF TALKING ABOUT AUTONOMY AND ASSOCIATIONAL RIGHTS,
00:28:09BECAUSE YOU DON'T WANT TO SAY WHAT THE MOST IMPORTANT INTEREST HERE IS,
00:28:14WHICH IS THE PRESIDENT'S SPEECH PROJECTED THROUGH JOURNALISTS TO THE PUBLIC.
00:28:19WELL, I THINK THE PROJECTED THROUGH JOURNALISTS PROBABLY TAKES THIS OUT OF AT LEAST THE HEARTLAND OF THE GOVERNMENT SPEECH DOCTRINE.
00:28:28THAT'S WHAT THE DISTRICT COURT SAID BELOW, IS THAT THE COMMUNICATIVE ACTIVITY THAT THE REPORTERS ARE ENGAGING IN
00:28:34IN THE OVAL OFFICE IS THEIR OWN SPEECH, NOT THE PRESIDENT'S SPEECH.
00:28:39AND I THINK BY AND LARGE THAT'S CORRECT.
00:28:42BUT THE REASON THE PRESIDENT HAS, THE REASON WHY THIS FEELS DIFFERENT
00:28:50IS BECAUSE OF THE PRESIDENT'S COMMUNICATIVE INTERESTS, AT LEAST TO ME.
00:28:56YES, AND I DO THINK THAT THAT IS SOMETHING THAT SHOULD INFORM THE COURT'S ANALYSIS HERE.
00:29:02BUT I ALSO THINK THE NATURE OF THE SPACE AND THE PRESIDENT'S INTEREST IN RETAINING CONTROL OVER
00:29:08WHOM HE ADMITS TO THOSE PRIVATE SPACES HAS TO INFORM THE ANALYSIS HERE.
00:29:13BECAUSE IF YOU LOOK AT THE BRADY ROOM, AGAIN, THE COURT HELD THAT'S NONPUBLIC FORUM, CAN'T
00:29:19VIEWPOINT DISCRIMINATE THERE.
00:29:21SO IF THE PRESIDENT WENT OVER TO THE BRADY ROOM, I DON'T THINK HE COULD NOW SAY ALL OF
00:29:25YOU HERE ARE NOW MY ORGANS TO GET MY MESSAGE OUT TO THE PUBLIC AND THEREFORE I'M GOING TO
00:29:30EXCLUDE ANYONE FROM THIS ROOM WHO DOESN'T SHARE MY VIEWPOINTS.
00:29:33I THINK THE NATURE OF THE SPACE MATTERS AND HELPS INFORM WHERE, WHEN AND WHERE IT IS
00:29:39PERMISSIBLE TO ENGAGE IN THAT KIND OF DISCRIMINATION TO HELP GET OUT THE MESSAGE THAT THE PRESIDENT
00:29:46WANTS OUT TO THE AMERICAN PEOPLE.
00:29:47YOU KNOW, THE NATURE OF THE SPACE IS ALSO CONNECTED TO THE IDEA THAT THE PRESIDENT IN THE
00:29:52OVAL OFFICE AND AIR FORCE ONE IS ENGAGING IN GOVERNMENT SPEECH.
00:29:56BECAUSE THE OVAL OFFICE, AIR FORCE ONE, ARE NOT PLACES WHERE OTHER PARTIES, JOURNALISTS, OR OTHER
00:30:03PEOPLE HAVE ANY EXPECTATION TO BE ABLE TO SPEAK THEMSELVES.
00:30:08I THINK THAT IS TRUE.
00:30:10I MEAN, THE PRESIDENT, WHENEVER HE SPEAKS, OBVIOUSLY HE'S ENGAGING IN GOVERNMENT
00:30:15SPEECH.
00:30:16BUT IF YOU'RE TALKING JUST ABOUT SORT OF PRE-COMMUNICATIVE ACTIVITY OF, YOU KNOW,
00:30:24OBSERVING WHAT HE SAYS AND DOES ON AIR FORCE ONE, I THINK THAT IS A DIFFERENT SORT
00:30:31OF ANALYSIS THAT ISN'T PURE GOVERNMENT SPEECH.
00:30:33TELL ME WHAT'S WRONG WITH THIS WAY OF THINKING ABOUT IT.
00:30:38FOCUSING ON SPEAKERS RATHER THAN PLACES OR MAYBE INCIDENTLY ADDRESSING PLACES BUT REALLY FOCUSING
00:30:48ON THE SPEAKERS.
00:30:51THERE ARE TWO KINDS OF COMMUNICATION GOING ON IN THE WHITE HOUSE PRESS POOL EVENT.
00:31:03ONE IS COMMUNICATION BETWEEN THE PRESIDENT AND THE JOURNALISTS.
00:31:09AND ONE IS BETWEEN THE JOURNALISTS AND MEMBERS OF THE PUBLIC.
00:31:16AND YOU CAN SORT OF SEPARATE THEM AND SAY, OKAY, PRESIDENT COMMUNICATING TO JOURNALISTS WITH
00:31:23YOU A HUNDRED PERCENT, BUT THE DISTRICT COURT TOOK CARE OF THAT PROBLEM, MAKING CRYSTAL CLEAR,
00:31:32PRESIDENT DOESN'T HAVE TO ENGAGE WITH ANY JOURNALIST HE DOESN'T WANT TO ENGAGE WITH.
00:31:38ABSOLUTE DISCRETION TO PICK WHO GETS TO ASK QUESTIONS AND HOW HE ANSWERS THEM,
00:31:44VIEWPOINT-BASED, LIKE WHATEVER HE WANTS.
00:31:47AND THEN THE OTHER LEVEL, THE OTHER LEVEL OF COMMUNICATION IS THE JOURNALISTS ARE SORT OF,
00:31:57THEY'RE PASSIVE OBSERVERS AND THEN THEY ARE BROADCASTING OUT.
00:32:04THAT FEELS A LITTLE LESS INTRUSIVE, YOU KNOW, SORT OF LIKE IF,
00:32:14WE ADMIT PRESS POOL TO THIS ARGUMENT, THEY HAVE NO EXPECTATION OF SPEAKING,
00:32:21THEY'RE HERE TO OBSERVE AND TALK TO THE PUBLIC.
00:32:26I MEAN, THAT'S COMMUNICATIVE, THAT'S MORE COMMUNICATIVE THAN THE STUFF IN PRICE WAS.
00:32:32AND THAT JUST DOESN'T IMPLICATE THE PRESIDENT'S SPEECH INTERESTS IN THE SAME WAY.
00:32:40SO I THINK I AGREE WITH THAT, JUST CATCHLESS, AS TO THAT STEP, ONCE THEY'VE GOT THE INFORMATION.
00:32:46ONCE THEY'VE GOT THE INFORMATION AND THEY ARE DECIDING TO COMMUNICATE IT OUT TO THE PUBLIC,
00:32:51THEY ARE ENGAGED IN THEIR OWN SPEECH.
00:32:53BUT THERE IS THE INTERMEDIATE STEP OF WHETHER THEY ARE GOING TO BE GRANTED ACCESS TO THAT INFORMATION IN THE FIRST PLACE.
00:33:00AND THAT'S WHAT WE WERE TALKING ABOUT HERE, BECAUSE WHAT WE WERE TALKING ABOUT IS NOT ADMITTING THEM TO THE SPACE
00:33:06AND THEN PREVENTING THEM FROM COMMUNICATING.
00:33:08THE QUESTION IS WHETHER THEY GET ADMITTED TO THE SPACE IN THE FIRST PLACE SO THAT THEY CAN COLLECT AND GATHER THAT INFORMATION.
00:33:15AND THAT IS, I DO THINK, VERY MUCH THE ANALYSIS OF THE FOURTH CIRCUIT IN BALTIMORE SUN,
00:33:22WHERE THE COURT SAID IT IS A ROUTINE ASPECT OF THIS INDUSTRY THAT GOVERNMENT OFFICIALS GRANT OR WITHOLD ACCESS TO
00:33:31NONPUBLIC INFORMATION BASED ON THEIR ASSESSMENT OF REPORTERS' COVERAGE.
00:33:37SO IN A WAY, MAYBE ANOTHER WAY THAT MIGHT BE USEFUL FOR US TO THINK ABOUT YOUR THEORY IS THROUGH THE LENS OF
00:33:51IRREPERABLE HARM.
00:33:53IT SOUNDS LIKE YOU'RE SAYING THERE'S SORT OF AN AUTONOMY HARM TO THE PRESIDENT.
00:33:58IS THAT A PSYCHIC HARM?
00:34:02HOW WOULD WE FIND SUCH A THING, SUCH A PHENOMENON IN LAW OR IN FACT?
00:34:11IS IT A FACTUAL QUESTION?
00:34:14I MEAN, I DON'T SEE ANYTHING IN THE CASE ABOUT ASSOCIATION OR AFFILIATION.
00:34:20BUT IT SOUNDS LIKE THAT IS SORT OF A CONCEPTUAL KERNEL OF YOUR ARGUMENT TODAY.
00:34:29I THINK IT IS.
00:34:30AND I THINK IT IS AN INJURY TO THE AUTONOMY OF THE PRESIDENT.
00:34:34THE SAME WAY I THINK YOU WOULD EXPERIENCE IT AS AN INJURY TO YOUR OWN AUTONOMY,
00:34:38IF YOU WERE BEING FORCED TO ADMIT PEOPLE TO YOUR CHAMBERS WHO YOU DIDN'T WANT TO HAVE THERE.
00:34:43NO, NOBODY IS FORCING HIM TO HAVE A PRESS POOL AT ALL.
00:34:49RIGHT.
00:34:50AND IF I WANTED TO HAVE A PRESS POOL,
00:34:52I MEAN, SOMETIMES WE HAVE GROUPS THAT COME AND VISIT US,
00:34:55AND THEY COME AND SIT AND TALK TO US.
00:34:57AND IF WE INVITE THEM IN, I MEAN, I ASSUME MANY PEOPLE HAVE VISITED ME IN MY OFFICIAL CAPACITY
00:35:04WHOSE VIEWPOINTS I DON'T SHARE, POSSIBLY WHOSE VIEWPOINTS I ABHOR.
00:35:10SO, YEAH, I'M TRYING TO GET...
00:35:13I SUPPOSE THE QUESTION IS WHETHER IT WOULD BE AN INJURY TO YOUR AUTONOMY IF YOU WERE COMPELLED
00:35:18TO DO THAT OVER YOUR OBJECTION.
00:35:20JUST BECAUSE YOU ADMITTED ONE GROUP OF ONE PARTICULAR IDEOLOGICAL PERSUASION,
00:35:25NOW YOU'RE GOING TO BE COMPELLED TO ADMIT TO YOUR PRIVATE CHAMBERS
00:35:29SOME OTHER GROUP WHOSE IDEOLOGY YOU ABHOR AND WHO YOU DO NOT WANT THERE.
00:35:33I THINK YOU WOULD EXPERIENCE THAT AS AN INJURY TO YOUR AUTONOMY.
00:35:37AND THAT IS THE EXACT KIND OF INJURY THAT WE ARE TALKING ABOUT HERE FOR THE PRESIDENT,
00:35:42HAVING TO ADMIT PEOPLE TO HIS PERSONAL SPACES TO OBSERVE HIM UP CLOSE AND PERSONAL.
00:35:49SO, WHAT THE DISTRICT COURT'S DECISION AND INJUNCTION
00:35:56IS QUITE EXPLICIT THAT IT LEAVES OPEN MANY DIFFERENT AVENUES
00:36:01FOR THE WHITE HOUSE TO CONTROL WHO IS IN THE PRESS POOL.
00:36:05SAYS IT CANNOT BE BASED ON VIEWPOINT, BUT RECOGNIZES THAT THE PRESS POOL IS HIGHLY SELECTIVE
00:36:10AND THERE COULD BE MANY DIFFERENT REASONS FOR INCLUDING A PARTICULAR, YOU KNOW, JOURNALIST
00:36:16OR EXCLUDING.
00:36:18SO, IN THAT CONTEXT, WHERE THE WHITE HOUSE STILL HAS SUBSTANTIAL DISCRETION
00:36:25OVER WHO IS PART OF THE PRESS POOL, WHAT'S THE IRREFERABLE HARM IN THOSE CERCUMSTANCES?
00:36:30I THINK THE IRREFERABLE HARM IS THE INABILITY TO EXCLUDE PEOPLE THAT THE PRESIDENT
00:36:35WANTS TO EXCLUDE BECAUSE...
00:36:37BASED ON VIEWPOINT.
00:36:38BECAUSE HE DISAGREES WITH THEIR VIEWPOINT OR THEIR COVERAGE AND DOESN'T WANT THEM IN HIS
00:36:43PERSONAL SPACES OBSERVING IT.
00:36:45JUST TO BE CLEAR ABOUT THE FACTS HERE, IT WASN'T EVEN THE AP'S COVERAGE.
00:36:50IT WAS BECAUSE THEIR STYLE BOOK USED WORDS THAT THE PRESIDENT DIDN'T LIKE TO DESCRIBE A
00:36:58CERTAIN BODY OF WATER.
00:37:01IT WAS BASED ON THEIR VIEWPOINT, AND I DON'T KNOW THAT THE PRESIDENT HAS PUBLICLY EXPLAINED
00:37:06WHY THAT PARTICULAR EDITORIAL CHOICE BOTHERS HIM, BUT IT COULD WELL BE THAT HE DOESN'T TRUST
00:37:12THIS ORGANIZATION TO REPORT ON HIM FAIRLY BECAUSE OF THAT.
00:37:15AND SO THAT'S NOT THE NEWS OUTLET THAT HE WANTS TO BE IN THE OVAL OFFICE WHEN HE DOES
00:37:21HAVE SOME INTEREST IN USING THOSE EVENTS IN HIS PERSONAL WORKSPACE TO GET HIS MESSAGE
00:37:27OUT TO THE AMERICAN PEOPLE.
00:37:29JUST STRIKES ME, AND I THINK IT WAS YOUR BRIEF THAT TALKS ABOUT THE HURLY-BURLY
00:37:32OF THE PRESS AND THE PRESS SHOULD BE ABLE TO TAKE IT, AND IT'S A BIT OF A TWO-WAY STREET,
00:37:37YOU KNOW, THAT THE PRESIDENT IS IN A POSITION IN WHICH THERE'S A CERTAIN AMOUNT OF HURLY-BURLY
00:37:41REQUIRED TO TAKE IT.
00:37:45AND THE WHITE HOUSE HAS CREATED A SPACE FOR THAT.
00:37:47AGAIN, THE AP STILL HAS THEIR FRONT-ROW SEAT IN THE BRADY BRIEFING ROOM.
00:37:52WE ARE TALKING ABOUT DIFFERENT SORTS OF SPACES WHERE I DO THINK THE WHITE HOUSE HAS A GREATER INTEREST
00:37:56IN CURATING THE COVERAGE TO MAKE SURE THAT THE MESSAGE IT WANTS TO GET OUT IS BEING
00:38:02AMPLIFIED BY THE HIGHLY SELECT GROUP OF REPORTERS THAT ARE BEING ADMITTED TO THOSE
00:38:08HIGHLY RESTRICTED SPACES.
00:38:10THERE IS ONE OTHER IDEA THAT WE HAVEN'T TOUCHED ON HERE.
00:38:13I MENTIONED IT AT THE HOUSET.
00:38:14BEFORE YOU MOVE ON, ON SELECTIVITY, I THINK IT'S SOMETHING LIKE 20 REPORTERS IN THE OVAL,
00:38:2213 ON AIR FORCE ONE, SOMETHING LIKE THAT.
00:38:25BUT THAT'S SELECTED FROM A POOL OF ELIGIBLE REPORTERS.
00:38:31SO HOW LARGE IS THAT?
00:38:33I HAVEN'T SEEN A NUMBER IN THE RECORD.
00:38:36WHAT I'VE SEEN IS THAT IT'S 1 TO 2 PERCENT OF THE OVERALL WHITE HOUSE CORRESPONDENT POOL.
00:38:43SO IT IS A HIGHLY SELECT GROUP.
00:38:46I MEAN, A HUNDRED?
00:38:48LET'S SAY IT'S A HUNDRED.
00:38:49SHOULD WE THINK OF THIS AS ONLY 10 OR 15 GET TO GO IN AT ANY ONE TIME?
00:39:01BECAUSE THE PHYSICAL SPACE IS SMALL.
00:39:04BUT REALLY IT'S A SPECIAL LEVEL OF ACCESS PROVIDED TO A HUNDRED.
00:39:10AND A HUNDRED TO ME STARTS TO SOUND MORE LIKE THE EAST ROOM EVENT THAN LIKE THE ONE-ON-ONE INTERVIEW.
00:39:20SO I THINK OF IT MORE IN TERMS OF THE SMALL GROUP OF 20 THAT'S THERE AT A TIME.
00:39:26BUT I DON'T THINK THAT THAT DISTINCTION WILL MATTER.
00:39:29AGAIN, I THINK THE EAST ROOM FALLS ON OUR SIDE OF THE LINE BECAUSE THAT'S NOT A DEDICATED PRESS FACILITY.
00:39:35IT'S THERE TO HOST EVENTS FOR THE EVENT'S OWN SAKE.
00:39:38THE PRESS COVERAGE THAT HAPPENS THERE IS INCIDENTAL TO THE PRIMARY FUNCTION OF THAT SPACE.
00:39:44THE ONE IDEA, I KNOW I'M OVER TIME, BUT THE ONE IDEA I DID WANT TO TOUCH ON HERE IS IN RESPONSE TO YOUR QUESTION,
00:39:51JUDGE PILLARD, ABOUT I THINK MUCH OF THE ANALYSIS ABOUT THE INTERESTS OF A GOVERNMENT OFFICIAL IN AUTONOMY DO APPLY TO GOVERNMENT OFFICIALS.
00:40:00BUT I DO THINK THERE IS AN EXTRA LAYER IN THIS CASE BECAUSE WE ARE TALKING ABOUT THE PRESIDENT OF THE UNITED STATES.
00:40:06AND THERE ARE SERIOUS SEPARATION OF POWERS CONCERNS THAT I DO THINK SHOULD INFORM HOW YOU THINK ABOUT THIS.
00:40:13BECAUSE A JUDICIAL DECREE FORCING THE PRESIDENT TO ADMIT INDIVIDUALS INTO THE KINDS OF SPACES WE'RE TALKING ABOUT HERE
00:40:20DOES EVENCE A LACK OF THE RESPECT DUE TO A COORDINATE BRANCH OF GOVERNMENT.
00:40:26AND IT INVITES LITIGATION THAT WILL OFTEN TURN ON INTRUSIVE INQUIRIES INTO THE PRESIDENT'S STATE OF MIND.
00:40:33AND IF YOU WANT A PREVIEW OF WHAT'S COMING, IF YOU UPHOLD THE DISTRICT COURT'S DECISION, YOU NEED LOOK NO FURTHER THAN THE MOTION TO ENFORCE THAT THE AP FILED YESTERDAY,
00:40:45AFTER THIS INJUNCTION HAD BEEN IN FORCE FOR TWO DAYS, THEY'VE NOW GONE TO THE DISTRICT COURT AND SAID THAT WE'RE IN VIOLATION.
00:40:54THEY SAY THEY ARE CONTINUING TO BE EXCLUDED BASED ON THEIR VIEWPOINT.
00:40:58WE SAY, NO, IT WASN'T YOUR TURN. WE PUT YOU BACK IN THE ROTATION, BUT IT WASN'T YOUR TURN ON THOSE TWO DAYS.
00:41:04AND THOSE ARE THE KINDS OF DISPUTES THAT COURTS ARE GOING TO BE CALLED UPON TO wade INTO.
00:41:10AND THIS INJUNCTION DOESN'T DO ANYTHING MORE THAN IMPOSE THE SORTS OF OBLIGATIONS THAT THE DISTRICT COURT THINKS THAT THE FIRST AMENDMENT IMPOSES OF ITS OWN FORCE.
00:41:19SO YOU DON'T NEED AN INJUNCTION TO BRING THESE KINDS OF CLAIMS.
00:41:22YOU CAN COME STRAIGHT INTO COURT AND START MICROMANAGING ON A DAILY BASIS DECISIONS THAT THE WHITE HOUSE IS MAKING ABOUT WHO GETS ACCESS TO THE OVAL OFFICE.
00:41:31SO MR. MCCARTHY, YOU TALKED ABOUT THE GOVERNMENT'S INTEREST IN HAVING ITS MESSAGE CONVEYED THROUGH THE PRESS.
00:41:40AND I JUST WANT TO HAVE A CLEAR UNDERSTANDING OF HOW YOU THINK THAT MIGHT AFFECT THE HARD PASSES.
00:41:47MY UNDERSTANDING IS THAT THE BROADER PRESS CORE HAS MAYBE 1,000 MEMBERS AND THEY ARE ON A MORE ROTATING BASIS, YOU KNOW, ALLOWED TO RSVP FOR AND GET INVITED TO CERTAIN THINGS.
00:42:01AND I ASSUME THEY'RE ALL ALLOWED TO COME TO, YOU KNOW, Q&A'S IN THE BRADY RUM.
00:42:07BUT UNDER YOUR THEORY, IT'S ALSO THE PRESIDENT'S PREROGATIVE TO ISSUE OR RESTRICT ISSUE PRESS PASSES BASED ON THE NATURE OF THE PASS COVERAGE?
00:42:23I DON'T THINK ANYTHING IN OUR POSITION HERE TOUCHES THE HARD PASSES.
00:42:27NO, IT DOESN'T TOUCH THE HARD PASSES.
00:42:29NO VIEWPOINT-BASED WEDGE IN THERE.
00:42:33YES, WE ACCEPT THAT THE DEDICATED PRESS FACILITIES IN THE WHITE HOUSE, INCLUDING THE BRADY BRIEFING ROOM, ARE AS THIS COURT HELD IN ATEBA, NONPUBLIC FORUMS TO WHICH A VIEWPOINT NEUTRALITY REQUIREMENT ATTACHES.
00:42:46AND THEREFORE, I DON'T THINK YOU COULD EXCLUDE ANY REPORTERS FROM THAT SPACE BASED ON THEIR VIEWPOINT.
00:42:51WHAT ABOUT INVITATIONS?
00:42:53YOU MENTIONED, YOU KNOW, TOPICAL EVENTS AND WHETHER PEOPLE COULD BE SCREENED.
00:42:59NOT BASED ON SECURITY, BUT BASED ON VIEWPOINT.
00:43:04SO IS IT YOUR POSITION THAT THE PRESIDENT ALSO HAS THE ABILITY, FOR EXAMPLE, RSVP EVENTS?
00:43:10YOU KNOW, WHO'S GOING TO COME AND HEADS OF STATE ARE COMING AND MEETING WITH THE PRESIDENT AND HE'S ALLOWING A CERTAIN NUMBER OF MEMBERS OF THE PRESS CORE TO BE PRESENT?
00:43:21IS THE VIEWPOINT-BASED SCREENING PERMISSIBLE THERE OR NOT?
00:43:25I THINK SO IF WE'RE ON THE SAME WAVELANGTH HERE, BECAUSE WHAT I HAVE IN MY MIND WHEN YOU DESCRIBE THAT IS SOMETHING LIKE THE EAST ROOM EVENT THAT WAS HELD TO COMMEMORATE BLACK HISTORY MONTH.
00:43:36I DO THINK THAT SORT OF EVENT WHERE IT'S BY INVITATION AND THEY ADMIT MEMBERS OF THE PRESS POOL IS A TIME AND A SPACE WHERE THEY CAN
00:43:44OR MEETING WITH PRESIDENT ZELENSKYY OR ANY OTHER HEAD OF STATE.
00:43:49THOSE COULD BE VIEWPOINT-BASED.
00:43:51YES, IF THEY'RE BEING HELD IN THESE SORTS OF SPACES.
00:43:54I SEE THAT I AM WELL OVER MY 13 MINUTES IF THERE ARE NO FURTHER QUESTIONS.
00:44:15GOOD AFTERNOON, MR. TOBIN.
00:44:16YOU MAY PROCEED WHEN YOU'RE READY.
00:44:17GOOD AFTERNOON, YOUR HONOR.
00:44:18YOUR HONORS, THANK YOU FOR THE OPPORTUNITY FOR THE ARGUMENT TODAY.
00:44:21MY NAME IS CHARLES TOBIN WITH THE LAWFORM OF BALLARD SPAR.
00:44:24WITH ME AT COUNCIL TABLE IS MY CO-COUNCIL, SACHA DUTTING.
00:44:28YOUR HONORS, I WANTED TO JUST MENTION A QUOTE THAT I HAD COME ACROSS IN PREPARING FOR THIS CASE.
00:44:36IT'S FROM MARK TWEEN.
00:44:37HE SAID THAT THERE ARE ONLY TWO FORCES THAT CAN CARRY LIGHT TO ALL CORNERS OF THE GLOBE,
00:44:42THE SUN IN THE HEAVENS AND THE ASSOCIATED PRESS DOWN HERE.
00:44:46I THINK THAT'S A POINT WAY TO EXPLAIN WHY WE ARE SO CONCERNED THAT FOR TWO MONTHS NOW,
00:44:56THE WHITE HOUSE HAS BRAZENLY EXCLUDED THE AP FROM OPPORTUNITIES OFFERED TO OTHER JOURNALISTS IN THE WHITE HOUSE,
00:45:03JUST BECAUSE THE AP'S EXPRESSION, AS YOU ALL WERE DISCUSSING WITH MY FRIEND GOVERNMENT COUNCIL,
00:45:08IT'S ALL ABOUT THE ADHERENCE TO THE DESIGNATION OF GULF OF MEXICO THAT THE PRESIDENT DOES NOT LIKE AND EXPRESSLY WANTS TO CONTROL,
00:45:15AND THAT THE TRIAL COURT CORRECTLY TERMED VIEWPOINT DISCRIMINATION UNDER THE LAW.
00:45:21YOUR HONORS, THE DISTRICT COURT FOUND THAT EXCLUSION VIOLATES THE FIRST AMENDMENT AND CAUSES THE WIRE SERVICE IRREPABLE HARM,
00:45:27AND IT DID THE BALANCING OF THE INTERESTS, AND IT APPROPRIATELY AND VERY NARROWLY TAYLORED AN INJUNCTION.
00:45:33THE ORDER SIMPLY RESCINDS ORDERS THE WHITE HOUSE TO RESCIND VIEWPOINT DISCRIMINATION,
00:45:38VIOLATION OF THE FIRST AMENDMENT IN PROVIDING THE OPPORTUNITIES TO THE ASSOCIATED PRESS OFFERED TO OTHERS IN THE POOL OR OTHERS INVITED TO RSPVP.
00:45:47I'M WONDERING IF YOU CAN RESPOND TO THE POINT THAT MR. MCARTHUR JUST MADE AT THE END,
00:45:53WHICH IS, IF THIS COURT WERE TO RECOGNIZE THAT THE PRESIDENT CANNOT DISCRIMINATE ON THE BASIS OF VIEWPOINT FOR THE PRESS POOL,
00:46:01BUT THEN THE PRESIDENT RECONSTITUTES THE PRESS POOL FOR SOME OTHER NON-VIEWPOINT-BASED REASON,
00:46:08DOESN'T THAT JUST OPEN UP THE WHITE HOUSE TO FREE TEXT CLAIMS ON THE BASIS OF VIEWPOINT,
00:46:15AND LEAD TO A PROBLEM WHERE THE COURTS ARE GOING TO BE MICROMANAGING THE DECISIONS OF THE WHITE HOUSE
00:46:21AS TO WHO CAN BE PART OF THE PRESS POOL?
00:46:24YOUR HONOR, THE ANSWER IS GOING TO BE THE LAWYER'S DODGE.
00:46:26IT DEPENDS ON THE FACTS.
00:46:28IT WILL DEPEND ON WHAT THE WHITE HOUSE ARTICULATES AS THE REASONS FOR THE NEW SELECTION CRITERIA.
00:46:34IF IT'S SECURITY...
00:46:35IT'S ALREADY HAPPENED.
00:46:37THEY'VE ISSUED A NEW POLICY.
00:46:39IT'S VIEWPOINT NEUTRAL ON ITS FACE, AND YOU'RE RUNNING INTO DISTRICT COURT TO ENFORCE THIS INJUNCTION.
00:46:48BUT WE WERE TOLD WE HAVE AVERID IN THE INJUNCTION IN THE MOTION TO ENFORCE PAPERS,
00:46:54AND I MIGHT ADD THE JUDGE VERY QUICKLY SET A HEARING FOR TOMORROW, SO PRIMA FACI,
00:46:59WHATEVER WE PUT IN THOSE PAPERS WAS OF ENOUGH CONCERN TO HAVE A BUSY JUDGE...
00:47:03THAT'S WHAT YOU'RE DOING.
00:47:05BUT I'M HAPPY TO...
00:47:06HOW WE'RE NOT GOING TO CONSTANTLY BE MICROMANAGING.
00:47:09AND I'M HAPPY TO ANSWER YOUR QUESTION, YOUR HONOR.
00:47:12WHAT THE WHITE HOUSE DID IN THE NEW POLICY, JUST TO GO THERE FIRST,
00:47:16IS IT SAID THAT THE OVERARCHING RULE IS THAT THE PRESIDENT RETAINS ABSOLUTE DISCRETION OVER OVAL ACCESS TO THE OVAL OFFICE.
00:47:24THAT'S EXACTLY THE TYPE OF ISSUE THAT WAS BEFORE THE JUDGE PREVIOUSLY,
00:47:28AND THE JUDGE SAID THE PRESIDENT'S DISCRETION IS CABINED BY THE FIRST AMENDMENT.
00:47:32SO THAT ANSWERS THE MAIN CONCERN THAT WE'RE GOING TO ARGUE TOMORROW WITH THE JUDGE.
00:47:37IN TERMS OF OTHER PRITERIA...
00:47:39THAT WAS A POKE IN THE EYE.
00:47:41OH, IS IT?
00:47:42NO DOUBT ABOUT IT.
00:47:43BUT THE NEW POLICY ON ITS FACE IS VIEWPOINTED.
00:47:48BUT I WOULD DISAGREE WITH THAT WITH ALL DUE RESPECT, YOUR HONOR,
00:47:51BECAUSE IF IT SAYS HERE'S ALL THE VIEWPOINT NEUTRAL REASONS...
00:47:55EXCLUSION IS NO WIRE SERVICE.
00:47:58BUT THE PRESIDENT RESERVES ABSOLUTE DISCRETION,
00:48:01AND WITHIN ABSOLUTE DISCRETION HAS TO LIVE VIEWPOINT DISCRIMINATION,
00:48:05OR ELSE THERE IS NO DISCRETION.
00:48:07SO THEN A COURT NEEDS TO SAY THE PRESIDENT DOES NOT HAVE ABSOLUTE DISCRETION?
00:48:11A COURT NEEDS TO SAY THE PRESIDENT'S DISCRETION IS CABINED BY THE CONSTITUTION,
00:48:15AN ISSUE THAT'S OBVIOUSLY PLAYING OUT IN MANY DIFFERENT CASES IN THIS COURTHOUSE TODAY.
00:48:20THE PRESIDENT OF THE UNITED STATES DOES NOT HAVE ABSOLUTE DISCRETION TO VIOLATE THE CONSTITUTION,
00:48:25AND THE DISTRICT COURT FOUND AFTER TWO HEARINGS, ONE OF THEM ALL DAY,
00:48:30LISTENING TO TWO ASSOCIATED PRESS WITNESSES,
00:48:33THE WHITE HOUSE CHOOSING NOT TO BRING A WITNESS TO EXPLAIN THEIR CRITERIA,
00:48:37AFTER FINDING THERE WAS A CONTRADICTION BETWEEN THE WHITE HOUSE'S WRITTEN EXPLANATIONS IN THE DECLARATIONS,
00:48:43ONE DECLARATION SAID THAT WE WERE ELIGIBLE FOR ADMISSION,
00:48:47THE OTHER DECLARATION SAID WE WOULD NOT HAVE ADMISSION,
00:48:50COUNSEL WAS ASKED BY JUDGE McFADDIN, WHAT DO YOU MEAN BY ELIGIBILITY?
00:48:53AND HIS ANSWER WAS, WELL, I'M ELIGIBLE TO PLAY FOR THE WASHINGTON NATIONALS,
00:48:57BUT THEY'RE NEVER GOING TO ACCEPT ME TO PLAY,
00:48:59AND THE PRESIDENT IS NOT GOING TO LET THE ASSOCIATED PRESS IN BECAUSE OF ITS VIEWPOINT.
00:49:04AND SO, I'M SORRY, YOUR HONOR.
00:49:06I SUPPOSE IT'S THE SAME POLICY WITHOUT THAT POKE IN THE EYE SENSE AT THE END.
00:49:12WE'RE JUST ELIMINATING THE WIRE SERVICE,
00:49:14REPLACING THE WIRE SERVICE SEAT WITH SOMETHING ELSE.
00:49:18YOUR HONOR, THERE'S ALSO DISCRETION ALLOWED FOR THE WHITE HOUSE PRESS SECRETARY,
00:49:24AND WITH RESPECT, YOUR HONOR, THESE ARE FAIR QUESTIONS FOR ME TO BE ASKED,
00:49:29BUT THEY'RE QUESTIONS THAT WE SHOULD BE RESOLVING IN THE DISTRICT BOARD,
00:49:32BECAUSE THIS PARTICULAR POLICY...
00:49:34AND THEN YOUR DAY-TO-DAY, THE DISTRICT JUDGE IS GOING TO BE PROBING
00:49:39THE MOTIVE OF SENIOR WHITE HOUSE AIDES, IF NOT THE PRESIDENT HIMSELF.
00:49:46IF A WHITE HOUSE AID TELLS ONE OF THESE REPORTERS,
00:49:50YOU'RE NOT GETTING IN BECAUSE OF VIEWPOINT DISCRIMINATION,
00:49:53I WOULD SUGGEST THAT THEY HAVE EVERY RIGHT TO COME TO THE COURT
00:49:57AND TO SAY THAT WE HAVE A CONSTITUTIONAL PROBLEM HERE THAT THE COURT NEEDS TO ADDRESS.
00:50:02IF YOU HAVE THE APPROPRIATE EVIDENCE, YOUR HONOR,
00:50:05YOU SHOULD BRING A CLAIM IN COURT.
00:50:07EVERYBODY HAS THE RIGHT TO DO THAT.
00:50:09WE DID NOT WILLY-NILLY BRING A CLAIM HERE.
00:50:12WE PUT BEFORE THE COURT ABUNDANT EVIDENCE, UNDISPUTED, LARGELY UNDISPUTED,
00:50:18TWO WITNESSES ALL DAY FILLED WITH TESTIMONY.
00:50:21AND THE COURT CAME TO THE CORRECT CONCLUSION,
00:50:23BECAUSE THE WHITE HOUSE HAS CONCEDED,
00:50:25THAT THIS IS ALL ABOUT TRYING TO CONTROL THE MESSAGE,
00:50:28TRYING TO CONTROL THE VIEWPOINT, IF YOU WILL,
00:50:30OF THE ASSOCIATED PROCESS.
00:50:32THERE ARE A SERIES OF PRESIDENTIAL IMMUNITY DOCTRINES,
00:50:39NOT DIRECTLY CONTROLLING HERE, BUT BUILT INTO EVERY ONE OF THOSE DOCTRINES
00:50:45IS THAT COURTS CAN'T PROBE THE MOTIVATION OF THE PRESIDENT,
00:50:52BECAUSE THAT WOULD BE DEBILITATING AND INAPPROPRIATE.
00:50:58THAT'S WHAT HAS TO HAPPEN HERE, IF THIS IS ALLOWED.
00:51:04IF THAT BECOMES THE RULE, THEN THE DOCTRIN OF VIEWPOINT DISCRIMINATION
00:51:07WILL NO LONGER APPLY TO THE PRESIDENT.
00:51:09AND WE KNOW CLEARLY THAT IT DOES APPLY TO AT LEAST THE WHITE HOUSE.
00:51:12I MIGHT ADD WE DIDN'T SUE THE PRESIDENT,
00:51:15BECAUSE OF THE CARVE OUT IN, I BELIEVE IT WAS THE CAROM CASE,
00:51:19WHERE I THINK IT WAS JUDGE TAIL SAID,
00:51:21ONE OF THE JUDGES SAID YOU CAN'T SUE THE PRESIDENT,
00:51:23SO THE INJUNCTION WAS NOT ENFORCEBLE AS TO THE PRESIDENT,
00:51:28BUT IT WAS ENFORCEBLE AS TO THE WHITE HOUSE.
00:51:30SO AS TO THE WHITE HOUSE...
00:51:31I MEAN, AS BROADLY OR NARROWLY, I MEAN...
00:51:34BUT THE CASE DID APPLY TO THE WHITE HOUSE,
00:51:38AND IT DID SAY, CAROM SAYS IT,
00:51:40ATEBA IS THE MOST RECENT CASE THAT SAYS IT,
00:51:42CHERYL IS THE PROGENITOR CASE THAT SAYS IT,
00:51:45PRICE DOESN'T SAY IT AS TO THE WHITE HOUSE,
00:51:47BUT IT SAYS IT IN GENERAL.
00:51:48IT STANDS FOR THE PROPOSITION THAT VIEWPOINT DISCRIMINATION,
00:51:51EVEN IN THE WHITE HOUSE...
00:51:53IT SAYS COURTS WILL POLICE VIEWPOINT DISCRIMINATION
00:51:57FOR SOMETHING LIKE THE BRADY ROOM.
00:52:01WELL...
00:52:02IT'S VERY DIFFERENT.
00:52:04WHAT MAKES IT DIFFICULT IS THIS PRESIDENT'S BOLD POSITION
00:52:07THAT HE CAN DISCRIMINATE BECAUSE OF VIEWPOINT.
00:52:11I TAKE YOUR POINT ON THAT.
00:52:16AND, YOU KNOW, THE FIRST ITERATION OF THIS CASE
00:52:21WAS VERY EASY FACTUALLY,
00:52:23BECAUSE THE WHITE HOUSE WAS QUITE OPEN ABOUT THAT.
00:52:27BUT THE LEGAL PRINCIPLE THAT THE DISTRICT COURT
00:52:31HAS ESTABLISHED HERE IS NOT IN ANY OBVIOUS WAY
00:52:36CABINABLE TO CASES WITH SMOKE AND GUN DIRECT EVIDENCE.
00:52:40WELL, IT'S CABINABLE TO CASES WHERE THE PRESIDENT EXERCISES
00:52:44VIEWPOINT DISCRIMINATION OR RESERVES TO HIMSELF THE RIGHT
00:52:47TO EXERCISE VIEWPOINT DISCRIMINATION.
00:52:50IF YOU WERE TO DECLARE TOMORROW THAT I'M GOING TO EXCLUDE ANY PRESS
00:52:55THAT DOESN'T REPORT THAT THE TARIF POLICY OF THE UNITED STATES IS WONDERFUL.
00:53:00THAT'S VIEWPOINT DISCRIMINATION.
00:53:02AND ANY JOURNALIST WHO'S EXCLUDED ON THAT BASIS SHOULD AND WOULD HAVE A RIGHT
00:53:07TO BRING A CLAIM.
00:53:08I MEAN, IT'S ONE THING TO JUST TALK ABOUT VIEWPOINT DISCRIMINATION GENERALLY,
00:53:12BUT WE DO HAVE TO FOCUS SPECIFICALLY ON WHAT TYPE OF ACTIVITY IS OCCURRING.
00:53:16I MEAN, I THINK THE AP CONCEDES THAT IF THE PRESIDENT WERE TO SCHEDULE A
00:53:20ONE-ON-ONE INTERVIEW OR EVEN A SMALL GROUP INTERVIEW, HE COULD
00:53:24CHOOSE JOURNALIST BASED ON VIEWPOINT.
00:53:27THAT'S CORRECT, JOURNALIST.
00:53:29RIGHT.
00:53:30AND SO, I MEAN, THE REAL QUESTION, YOU KNOW, AS WE WERE DISCUSSING WITH YOUR
00:53:34FRIEND ON THE OTHER SIDE IS WHERE THIS FALLS ALONG THAT CONTINUUM, RIGHT?
00:53:37THIS IS NOT...
00:53:38THE OVAL OFFICE IS, I THINK, QUITE OBVIOUSLY NOT THE BRADY PRESS ROOM.
00:53:42AND THE PRESS POLL IS NOT EXACTLY LIKE A ONE-ON-ONE INTERVIEW
00:53:45BECAUSE MEMBERS OF THE PRESS POLL ARE NOT INTERACTING WITH THE PRESIDENT.
00:53:49BUT I THINK YOU HAVE TO SAY WHY THIS IS MORE LIKE THE BRADY PRESS ROOM
00:53:53THAN LIKE A ONE-ON-ONE INTERVIEW.
00:53:55WHEN YOU'RE TALKING ABOUT 10 OR 12 JOURNALISTS WHO ARE IN THE PRESIDENT'S OFFICE
00:54:00OR IN THE PRESIDENT'S AIRPLANE OR IN HIS HOME IN MAR-A-LAGO,
00:54:04WHY IS THAT NOT MORE LIKE A ONE-ON-ONE INTERVIEW?
00:54:07BECAUSE, YOUR HONOR, IT IS PART OF AN ESTABLISHED SYSTEM.
00:54:10I THINK YOU ASKED THE QUESTION, WHAT ABOUT THE POOL ITSELF?
00:54:13THERE IS A SYSTEM ESTABLISHED CALLED THE POOL.
00:54:16THE WHITE HOUSE HAS DECIDED TO ACCEED AND NOW CONTROL THAT SYSTEM,
00:54:20TAKE OVER THE SELECTION OF THE POOL.
00:54:22ONCE YOU HAVE A SYSTEM CALLED THE POOL OR WHATEVER YOU WANT TO CALL IT,
00:54:27AND YOU INVITE ON A DAILY BASIS MEMBERS OF THAT POOL TO COME IN
00:54:31AND OBSERVE AND IN REAL-TIME REPORT OUT THE NEWS THAT'S HAPPENING IN THE WHITE HOUSE.
00:54:36AND YOU'RE NOT INTERACTING WITH THE PRESIDENT.
00:54:38THE PURPOSE IS NOT FOR AN INTERVIEW,
00:54:40WHETHER IT'S ONE-ON-ONE OR TWO-ON-ONE OR THREE-ON-ONE.
00:54:42IT'S TO OBSERVE AND REPORT.
00:54:44THAT'S EXACTLY WHERE THE DISTINCTION LIES.
00:54:48AND THAT'S WHAT THE DISTRICT COURT FOUND.
00:54:50THE COURT ITSELF ASKED QUESTIONS OF MY WITNESSES, THE AP'S WITNESSES,
00:54:54IN ORDER TO DRAW OUT THAT DISTINCTION.
00:54:56BUT THE POOL DOESN'T HAVE ANY KIND OF MYTHICAL STATUS.
00:55:00I MEAN, PRESUMABLY, PRESIDENTS HAVE A PRESS POOL FOR THEIR OWN PURPOSES,
00:55:04FOR THEIR OWN REASONS, IN TERMS OF HOW THEY WANT TO GET THEIR MESSAGE OUT
00:55:08TO THE AMERICAN PUBLIC.
00:55:09AND PRESUMABLY, A WHITE HOUSE PRESIDENT COULD CONSTITUTE A PRESS POOL
00:55:14IN ANY WAY THAT THEY THOUGHT WAS USEFUL.
00:55:17YOUR HONOR, I WOULD JUST POINT THE COURT TO THE OTHER SETTINGS WHICH A PRESS POOL,
00:55:23AND THE WORDS PRESS POOL APPEAR IN ALL OF THE DECISION,
00:55:26HAVE BEEN FOUND TO BE BOUND BY THE SHERREL DOCTRINE,
00:55:29THE HARD PASS HOLDER DOCTRINE, WHICH IS THERE IS NO VIEWPOINT DISCRIMINATION,
00:55:33ONLY ALLOWS FOR NEUTRAL, REASONABLE CRITERIA.
00:55:36IT'S JUST A NARROW SUBSET OF HARD PASS HOLDERS.
00:55:39THAT'S CORRECT.
00:55:40I MEAN, A VERY SMALL SET, RIGHT?
00:55:41I MEAN, THERE ARE, WHAT, SOME 1,500 HARD PASS HOLDERS, SOMETHING LIKE THAT?
00:55:441,300, YOUR HONOR.
00:55:46AND THEY'RE, YOU KNOW, A FRACTION, 1% OF THAT IN THE OVAL OFFICE?
00:55:51RIGHT, YOUR HONOR, BUT THEY ARE SELECTED ON IT, HAVE BEEN SELECTED,
00:55:54AND ARE STILL SELECTED ON THE NEW POLICY, OSTENSIVELY,
00:55:57ON A ROTATING BASIS BY ENTITY, NOT BY REPORTER.
00:56:01AND YOUR HONOR, THAT'S THE SYSTEM THAT...
00:56:03AND NOT BY VIEWPOINT.
00:56:04AND NOT BY VIEWPOINT.
00:56:06WELL, OSTENSIVELY NOT BY VIEWPOINT.
00:56:08OKAY.
00:56:09THAT'S AN ISSUE THAT THE DISTRICT COURT FOUND AGAINST THE GOVERNMENT
00:56:12ON IN THE PREVIOUS ITERATION OF THE POLICY.
00:56:14LET ME ASK YOU ABOUT JUST SORT OF THE UNDERLYING DOCTRINE
00:56:17THAT WE'RE WORKING WITH HERE.
00:56:20WE HAVE TRADITIONAL PUBLIC FORA.
00:56:23WE HAVE LIMITED OR DESIGNATED PUBLIC FORA.
00:56:26WE HAVE NON-PUBLIC FORA.
00:56:28AND THE DISTRICT JUDGE IN THIS CASE HELD THAT THE OVAL OFFICE IN AIR FORCE ONE
00:56:33AND THE RELEVANT PART OF MAR-A-LAGO IS A NON-PUBLIC FORUM.
00:56:38ARE THERE...
00:56:39ARE THERE SOME TYPES OF GOVERNMENT PROPERTY OR SOME USES OF GOVERNMENT PROPERTY
00:56:44THAT ARE NOT FORUMS AT ALL?
00:56:47AND HOW DO WE THINK ABOUT THAT FOR FIRST AMENDMENT PURPOSES?
00:56:52YES.
00:56:53I THINK JUDGE MCFADDON ANSWERED THAT IN DENYING THE STAY, THE EXTENDED STAY THAT WAS REQUESTED.
00:56:59SO, FOR EXAMPLE, THE PRESIDENT HAS A PRIVATE OFFICE, A SMALLER OFFICE OFF OF THE OVAL OFFICE
00:57:05THAT HE RETREATS TO.
00:57:07THE COURT FOUND THAT THAT IS NOT...
00:57:10IS SEPARATE AND DISTINCT FROM THE OVAL OFFICE WHEN IT'S USED FOR PRESS SPRAY PURPOSES.
00:57:15THE PRESIDENT'S SUITE IN AIR FORCE ONE...
00:57:18I GUESS I'M STILL TRYING TO FIGURE OUT WHAT WORK THE FORUM, EVEN NON-PUBLIC FORUM DESIGNATION IS DOING
00:57:25BECAUSE THERE ARE BROADER DOCTRINES ABOUT PEOPLE WHO WOULD OTHERWISE BE ELIGIBLE.
00:57:36CANNOT BE EXCLUDED, DENIED, DEPRIVED OF THE THING FOR WHICH THEY'RE OTHERWISE, YOU KNOW, ELIGIBLE, BASED ON VIEWPOINT.
00:57:47AND I'M JUST TRYING TO UNDERSTAND...
00:57:51PRESUMPELY THAT DOES NOT APPLY IF THE PRESIDENT WANTS TO CONVENE A MEETING OF...
00:57:57YOU KNOW, EVEN IF IT'S GOING TO BE IN THE...
00:57:59LET'S SAY HE USES THE PRESS ROOM AS THE SPACE, BUT HE WANTS TO HAVE A MEETING OF EXPERTS ON THE CRIMINAL JUSTICE SYSTEM
00:58:05AND HE REALLY ONLY WANTS PEOPLE WHO ARE ORIENTED TO REDUCING MASS INCARCERATION.
00:58:11CAN THE PRESIDENT IN THAT KIND OF SITUATION, YOU KNOW, IT'S PUBLIC SPACE, INVITE PEOPLE TO THE MEETING BASED ON VIEWPOINT?
00:58:21OR, I MEAN, THERE'S LANGUAGE IN SOME OF THE CASES LIKE CORNELIUS AND PRICE THAT SAY IDENTITY OF THE SPEAKER AND THE CONTENT RELATED TO THE EVENT.
00:58:33BUT IT SEEMED TO SUGGEST THAT VIEWPOINT DISCRIMINATION WOULD BE BARRED, BUT I FIND THAT HARD TO ACCEPT THAT THAT WOULD BE TRUE.
00:58:41WHAT'S YOUR VIEW? HELP US OUT ON THAT.
00:58:43WELL, IF IT WERE A DESIGNATED POOL EVENT, IF IT WERE...
00:58:47NO, NO, NO. I'M NOT TALKING ABOUT THE PRESS POOL. I'M TALKING ABOUT A MEETING.
00:58:51AND IF THE PRESIDENT WANTS TO CONVENE A MEETING, HE CAN INVITE PEOPLE TO THE MEETING BASED ON VIEWPOINT.
00:58:57HE CAN INVITE FOX, I'LL JUST PICK AS A LOGICAL...
00:59:01HE CAN INVITE PROFESSORS. I'M NOT EVEN TALKING ABOUT PRESS.
00:59:04THAT'S CORRECT.
00:59:05HE CAN INVITE PEOPLE WHO ARE SPECIALISTS, WHO ARE CORPORATE LEADERS, WHO ARE PROFESSORS, WHO ARE ENGINEERS, WHATEVER.
00:59:10CERTAINLY.
00:59:11SO THAT KIND OF CONVENING, IT CAN BE BASED ON VIEWPOINT.
00:59:14AND THAT'S BECAUSE IT'S NOT EVEN A NONPUBLIC FORUM? IT'S NOT A FORUM AT ALL?
00:59:18IT'S NOT A PUBLIC FORUM IN THE SENSE THAT IT IS NOT A PLACE OPENED UP FOR FIRST AMENDMENT PROTECTED ACTIVITY.
00:59:27THE REASON THE OVAL OFFICE IS A NATURAL EXTENSION...
00:59:30IT'S NOT EVEN A PRIVATE FORUM, THOUGH. IT'S NOT EVEN A NONPUBLIC FORUM.
00:59:35AT THAT POINT, IT'S NOT A FORUM, IT IS A NONPUBLIC FORUM IN THE SENSE THAT THERE'S NO ACTIVITY THERE.
00:59:44IF IT'S NONPUBLIC, IT'S SUBJECT TO PROHIBITION ON VIEWPOINT DISCRIMINATION.
00:59:50BUT...
00:59:51SO HE WANTS TO HAVE AN EVENT IN THE CABINET ROOM AND INVITE...
00:59:57HE HAS SOME POLICY IN MIND THAT HE CARES A LOT ABOUT, AND HE WANTS TO INVITE MEMBERS OF THE PUBLIC AND PRESS WHO SUPPORT THE POLIC.
01:00:11AND ONLY PEOPLE ON THAT SIDE OF THE ISSUE.
01:00:15CAN HE DO THAT?
01:00:16NOT IF IT'S...
01:00:17NOT IF IT IS SELECTING FROM AMONG THE HARD PASS HOLDERS REPORT OF THE PRESS POOL IN THE WHITE HOUSE.
01:00:24IF HE IS INVITING...
01:00:25AND I WAS...
01:00:26I THOUGHT THAT'S WHAT JUDGE POLLARD WAS ASKING ME.
01:00:28IF HE'S INVITING ONE FAVORITE JOURNALIST IN TO SIT DOWN AND WITNESS, YOU KNOW, A CABINET MEETING, OR SOMETHING LIKE THAT.
01:00:35I WOULD SAY THAT'S PROBABLY CLOSER TO AN INDIVIDUAL SELECTIVE INTERVIEW THAN IT IS A PRESS POOL EVENT.
01:00:41NO, HE'S INVITING...
01:00:43HE WANTS TO DEVELOP THE CASE FOR, I DON'T KNOW, HIGHER TARIFS.
01:00:51AND HE INVITES UNION LEADERS WHO SUPPORT HIGHER TARIFS, ACADEMICS WHO SUPPORT HIGHER TARIFS, PUBLIC INTELLECTUALS, AND THEY'RE DOING AN EVENT.
01:01:07THEY'RE DOING A GIVE AND TAKE IN THE CABINET ROOM, TOTALLY VIEWPOINT BASED.
01:01:13IS THAT OKAY?
01:01:14YES, I MEAN, THAT'S THE DEVELOPMENT OF DISCUSSION AMONG LEADERS IN DEVELOPING POLICY.
01:01:22IT'S NOT A COMMUNICATIVE ACTIVITY.
01:01:24BUT THEN, SO THOSE ARE THE PEOPLE AT THE TABLE, BUT THEN THEY WANT FIVE...
01:01:30HE WANTS FIVE PRESS PEOPLE, KIND OF ON THE CHAIRS AND BACK AT THE EDGE, BUT HE CAN'T DISCRIMINATE BASED ON VIEWPOINT FOR THE REPORTERS.
01:01:42I THINK ONCE HE'S...
01:01:46IF HE GOES OUT, IF THE WHITE HOUSE PRESS SECRETARY WERE TO GO OUT AND TAP PEOPLE ON THE SHOULDER AND SAY,
01:01:52PRESIDENT WANTS TO TALK TO YOU, COME ON INTO THE OVAL OFFICE, AND IT'S A SMALL GROUP OF PEOPLE.
01:01:57I THINK HE'S PERFECTLY ENTITLED TO DO THAT.
01:02:01ONCE YOU DESIGNATED A POOL EVENT, ONCE YOU HAVE A SYSTEM, WHICH WE DISCUSSED A MINUTE AGO, OF ROTATION,
01:02:07THAT'S WHERE THE ENTIRE NOTION OF VIEWPOINT DISCRIMINATION BECOMES AN ANATHEMA.
01:02:12AND THE COURT GOT THERE BY THE ANALYSIS, BY ANALOGIZING THIS, TO THE NONPUBLIC FORUM SETTING.
01:02:17I PERSONALLY THINK IT'S CLOSER TO A LIMITED PUBLIC FORUM IN THAT SETTING.
01:02:21THERE'S A REAL ROTATION IN THE POOL.
01:02:23I MEAN, THE AP IS CONCERNED THAT IT USED TO ALWAYS BE PART OF THE PRESS POOL.
01:02:27IT'S NOT ROTATION.
01:02:28I MEAN, YOU'RE MAKING IT SOUND AS THOUGH, I MEAN, IF THEY WERE IN THE NATURAL ROTATION,
01:02:32THEN THEY WOULD, OF HARD PASS HOLDERS OR ORGANIZATIONS, THEY WOULD RARELY BE IN THE OVAL.
01:02:39WELL, WE WERE HAPPY TO HAVE THE WHITE HOUSE RECOGNIZE THE UNIQUE ROLE THAT THE AP HOLDS,
01:02:45BOTH HISTORICALLY.
01:02:46BUT THAT'S NOT A FIRST AMENDMENT.
01:02:48NO, BUT I AM TRYING TO ANSWER YOUR QUESTION, YOUR HONOR.
01:02:50WE WERE HAPPY TO HAVE THAT.
01:02:52I WOULD NOT STAND HERE AND ARGUE THAT WE HAVE A RIGHT TO BE THE LINE LEADER.
01:02:55AND I SAID THAT TO JUDGE McFADDEN.
01:02:57WE WERE PLEASED THAT WE WERE, BUT NOW WE'RE COMPLETELY SHUT OUT.
01:03:01WE'RE NOT EVEN IN THE ROTATION, AT LEAST WE WEREN'T, IN THE RECORD BEFORE THE DISTRICT BOARD.
01:03:06I'M NOT CONVINCED THAT WE ARE YET, BUT THAT'S AN ISSUE I WANT TO WORK OUT WITH THE DISTRICT BOARD.
01:03:10ALSO, I'M INTERESTED FROM AP'S PERSPECTIVE, WHAT IS THE COMMUNICATIVE ACTIVITY THAT AP OR ANY OTHER MEMBER OF THE PRESS
01:03:19POOL IS ENGAGED IN WHEN THEY ARE WATCHING OR, YOU KNOW, OBSERVING EVENTS IN THE OVAL OFFICE OR AIR FORCE.
01:03:28SURE, I HAVE TWO ANSWERS TO THAT, ONE'S IN THE LAW AND ONE'S IN THE FACTS.
01:03:32UNDER THE LAW, THE SHERREL DOCTRINE, WHICH THIS COURT, THE DISTRICT COURT DID APPLY IN THIS CASE,
01:03:39THE SHERREL DOCTRINE IS THAT THE PRESENT PUBLIC HAVE AN INTEREST PROTECTED BY THE FIRST AMENDMENT
01:03:45IN ENSURING THAT RESTRICTIONS ON NEWSGATHERING BE NO MORE ARDUOUS THAN NECESSARY.
01:03:50SO THAT WAS A QUESTION YOU ASKED MY FRIEND ON THE OTHER SIDE EARLIER.
01:03:53WHAT IS THIS NEWSGATHERING ALL ABOUT AND WHAT ARE THE DEFINITIONS?
01:03:56THE LAW IN THIS CIRCUIT PROTECTS NEWSGATHERING.
01:03:59NEWSGATHERING MEANS BOTH DEVELOPING THE INFORMATION AND TAKING IT IN AND COMMUNICATING IT OUT.
01:04:05SO, GRANTED, NEWSGATHERING HAS SOME FIRST AMENDMENT PROTECTION, BUT IS IT COMMUNICATIVE ACTIVITY?
01:04:11NEWSGATHERING ITSELF?
01:04:12THAT'S WHERE THE FACTS THEMSELVES COME IN.
01:04:15BECAUSE THE CLEAR RECORD IN THIS CASE IS THAT WHAT'S GOING ON FROM THE WHITE HOUSE IS LIVE REPORTING,
01:04:20BOTH BY PHOTOGRAPH AND BY TEXT AND .COM MEANS.
01:04:25THE REPORTERS FOR THE AP ARE REPORTING LIVE FROM THE WHITE HOUSE.
01:04:29WE ALL GET PUSH NOTIFICATIONS FROM THE AP.
01:04:32SO, DOES THAT TURN ANY GOVERNMENT SPACE IN WHICH A REPORTER OR ANYONE ELSE,
01:04:37AND I THINK JUDGE CASES HAS A SIMILAR QUESTION EARLIER, YOU KNOW, ANY SPACE, ANY GOVERNMENT SPACE
01:04:42WHERE SOMEONE HAS A CELL PHONE AND POSTS SOMETHING ON THEIR BLOG OR, YOU KNOW, WHATEVER,
01:04:47MAKES ANY KIND OF COMMUNICATION TO THE OUTSIDE WORLD, THEN THAT'S A NONPUBLIC FORUM?
01:04:53DOES THE INTERNET TRANSFORM ALL PHYSICAL SPACES INTO NONPUBLIC FORUM?
01:04:58I WOULD NARROW THE LIMITING PRINCIPLE BY SAYING THAT ANYWHERE THE GOVERNMENT
01:05:02OPENS UP FOR NEWS GATHERING.
01:05:05CERTAINLY, IF THERE'S AN AFFIRMATIVE ACT, THE ANSWER HAS TO BE YES.
01:05:08AND HERE THERE'S THE AFFIRMATIVE ACT OF INVITING THE PRESS POOL INTO THE OVAL OFFICE
01:05:13TO OBSERVE AND REPORT OUT IN REAL TIME THE NEWS, AND THAT MAKES IT A PROTECTED FIRST AMENDMENT.
01:05:18SO IF YOU OPEN THE FORUM, NOT NECESSARILY, SPECIFICALLY FOR COMMUNICATION, BUT FOR NEWS GATHERING,
01:05:25AND PART OF THAT INCLUDES ACCESSING THE INTERNET, NOT COMMUNICATING IN THE FORUM DIRECTLY.
01:05:31NOT COMMUNICATING WITH THE PEOPLE STAGING THE EVENT.
01:05:34RIGHT.
01:05:35WELL, BECAUSE, I MEAN, THE TRADITIONAL ALL FORA ANALYSIS STEMS FROM THE TRADITIONAL PUBLIC FORUM,
01:05:39PARKS, SIDEWALKS, THINGS LIKE THAT, WHERE THE FORUM AND THE SPEECH ARE INTIMATELY CONNECTED.
01:05:44BUT WHERE COMMUNICATION EXISTS ONLY ON THE INTERNET OR, YOU KNOW, THROUGH ELECTRONIC TRANSMISSIONS
01:05:51OF SOME TYPE, THERE'S NO CONNECTION BETWEEN THAT TYPE OF ELECTRONIC TRANSMISSION AND, SAY,
01:05:59THE OVAL OFFICE IN THE WAY THERE IS BETWEEN A SIDEWALK OUTSIDE THE SUPREME COURT WHERE SOMEONE
01:06:04MIGHT WANT TO PICKET THE SUPREME COURT BECAUSE THEY DON'T LIKE A PARTICULAR DECISION.
01:06:09SO THERE'S NO CONNECTION.
01:06:11AND IN ALL THE FORA ANALYSIS, THERE'S ALWAYS A CONNECTION BETWEEN THE COMMUNICATION THAT
01:06:16PEOPLE ARE AIMING FOR AND THE TYPE OF FOR.
01:06:19YOU KNOW, YOU KNOW, A CHARITY WANTS TO BE PART OF THE CAPITAL CAMPAIGN SO THEY CAN GET
01:06:24THEIR MESSAGE OUT TO GOVERNMENT WORKERS AND CORNELIUS OR SOMETHING LIKE THAT.
01:06:27ALL THE TRADITIONAL PUBLIC FORA CASES ARE LIKE THIS.
01:06:30SO HERE THERE'S NOT THE SAME CONNECTION.
01:06:33BUT THAT WAS THE SAME, BROADLY SPEAKING, SET OF FACTS IN THE CHERYL B. NIGHT CASE,
01:06:39WHICH IS ACCESS TO THE WHITE HOUSE IN ORDER TO BE ABLE TO REPORT INFORMATION, TO GATHER THE
01:06:44NEWS.
01:06:45AND THE CIRCUT DID FIND THAT THERE WAS, AND REAFFIRMED IT IN A TABA AND IN CARAM, THAT
01:06:51THERE WAS A FIRST AMENDMENT INTEREST IN THAT NEWS GATHERING ACTIVITY.
01:06:54NEWS GATHERING IN THE PRESS ROOM.
01:06:56I DIDN'T SAY THAT.
01:06:59A CARAM AROSE OUT OF THE ROSE GARDEN.
01:07:02A TABA AROSE OUT OF THE BRADY PRESS ROOM.
01:07:05CHERYL AROSE OUT OF GETTING INTO THE WHITE HOUSE AT ALL.
01:07:08AND THE SAME DOCTRUM WAS APPLIED ACROSS ALL THREE.
01:07:11AND THERE IS NO...
01:07:12I THINK THOSE ARE IDENTICAL TO THE PRESIDENT HIMSELF INVITING A SMALL GROUP OF JOURNALISTS.
01:07:18INVITING A DESIGNATED POOL IN WHICH IS SUPPOSED TO BE A ROTATING SYSTEM IF YOU'RE GOING
01:07:23TO AGREE WITH US THAT IT HAS TO BE NON-DISCRIMINATORY, NON-VIEWPOINT DISCRIMINATORY.
01:07:28YES, YOUR HONOR.
01:07:29SO THAT SEEMS THE STRONGEST PART OF YOUR CASE.
01:07:34THERE WAS A POOL.
01:07:35THERE HAS BEEN A POOL.
01:07:36AND WHETHER YOU LOOK AT THE NIGHT INSTITUTE, IT dates back to 1881, OR YOU LOOK AT THE NATIONAL
01:07:43JOURNAL DECLARATION IN THE DISTRICT COURT, IT dates back to the 40s.
01:07:50THERE HAS BEEN A PRESS POOL, AND IT HAS BEEN A NON-VIEWPOINT-BASED OPPORTUNITY FOR THE PRESS.
01:08:00IF THE FACTS OF THIS CASE HAD NEVER OCCURRED, AND THE PRESIDENT HAD JUST DECIDED HE WANTS
01:08:08TO ABOLISH THE PRESS POOL ENTIRELY.
01:08:11LET'S JUST NOT HAVE ANYBODY COMING INTO THE OVAL, ANY MEMBERS OF THE PRESS, ON AIR FORCE ONE.
01:08:18FIRST AMENDMENT PROBLEM, OR NO?
01:08:20I WOULD NEED TO UNDERSTAND A LITTLE MORE FACTS, AND NAMELY, I NEED TO KNOW WHAT IT'S REPLACED WITH.
01:08:27AND I NEED TO...
01:08:28NO REPORTERS IN THOSE PLACES, BECAUSE THE PRESIDENT FEELS HIS AUTONOMY WOULD BE HAMPERED.
01:08:35HE DOESN'T WANT TO ASSOCIATE WITH JOURNALISTS WHO HE FINDS PESKY.
01:08:40I THINK IT WOULD BE A TOUGHER ARGUMENT UNDER ZEMEL VERSUS RUSK TO SAY THAT THE PRESIDENT
01:08:44COULDN'T EXCLUDE THE PRESS ENTIRELY FROM THE OVAL OFFICE OR EVEN THE WHITE HOUSE.
01:08:50I WANT TO KNOW A LITTLE MORE ABOUT THE FACTS.
01:08:53I WANT TO STUDY UP ON THAT A LITTLE MORE.
01:08:55BUT MY ANSWER, STANDING AT THE PODIUM, IS THAT THE DISTRICT COURT GOT THE LIBITATIONS CORRECT,
01:09:02THAT THE PRESIDENT CAN'T BE ORDERED TO SPEAK TO SOMEBODY.
01:09:05THE PRESIDENT CAN'T BE ORDERED TO HOLD A PRESS EVENT.
01:09:08BUT ONCE HE DECIDES TO DO THOSE THINGS IN A POOL SETTING, IN AN ESTABLISHED POOL SETTING,
01:09:14HE CAN'T DO IT IN A VIEWPOINT DISCRIMINATORY WAY.
01:09:17AND I JUST WANTED TO JUST POINT THE COURT OUT TO FOUR OTHER SETTINGS,
01:09:21WHERE THE DISTRICT COURTS, THE FEDERAL DISTRICT COURTS,
01:09:25HAVE EACH SAID THAT A POOL SETTING IN AREAS THAT MAY BE COUNTERINTUITIVE TO ALL OF US,
01:09:31IMBEDDING WITH THE MILITARY CENTRAL COMMAND IN GULF WAR ONE,
01:09:35NATION MAGAZINE VERSUS DOD IN THE SOUTHER DISTRICT OF NEW YORK,
01:09:39THE PRESS POOL HAD TO BE SELECTED BASED ON NON-VIEWPOINT DISCRIMINATORY REASONS.
01:09:44FLIGHTS TO GUANTANAMO BAY, WHERE THE PRESS WERE INVITED,
01:09:47AND THERE WERE ONLY 20 SEATS THAT WAS IN THIS COURTHOUSE,
01:09:51GETTY IMAGES, NEW SERVICES, VERSUS DEPARTMENT OF DEFENSE.
01:09:54THOSE 20 SEATS HAD TO BE SELECTED ON VIEWPOINT NEUTRAL CRITERIA.
01:09:59THE CONGRESSIONAL PRESS GALLERIES, ALSO IN THIS COURT,
01:10:02CONSUMERS UNION OF THE U.S. VERSUS THE PERIODICALS CORRESPONDENCE ASSOCIATION,
01:10:07ALSO I SAID IN THE DISTRICT COURT HERE.
01:10:10AND THEN THE WHITE HOUSE POOL ITSELF WAS ADJUDICATED
01:10:14BY THE NORTHERN DISTRICT OF GEORGIA IN 1981 IN CNN VERSUS ABC, INC,
01:10:20AS A FORUM IN WHICH YOU COULD NOT HAVE DISCRIMINATION
01:10:24BASED ON VIEWPOINT WHEN THEY WERE TRYING TO EXCLUDE
01:10:27ALL OF THE TELEVISION STATIONS FROM THE POOL.
01:10:30THOSE ARE FOUR AREAS, AND THE FOURTH ONE ACTUALLY SUPPORTS
01:10:34VERY DIRECTLY THE DISTRICT COURT'S REASONING IN THIS CASE.
01:10:37BUT THOSE ARE AREAS WHERE YOU MIGHT HAVE SOME REAL QUALMS IF YOU'RE
01:10:42LOOKING AT THIS FRESH UNTIL YOU START TO APPLY THE NOTION THE
01:10:46VIEWPOINT DISCRIMINATION IS ANATHEMA.
01:10:48AND ONCE YOU OPEN UP AN AREA TO A GROUP OF PEOPLE.
01:10:51THIS IS BASIC, TO US, BASIC, FUNDAMENTAL
01:10:53AMERICAN DOCTRINE, YOUR HONORS.
01:10:55AND WE WOULD ASK THE COURT AT LEAST NOT TO STAY.
01:10:59WE'LL OBVIOUSLY HAVE A MORE FULSOME ARGUMENT IF THE GOVERNMENT
01:11:03PROCEEDS WITH ITS APPEAL.
01:11:04WE DO HAVE ISSUES TO SORT OUT WITH THE DISTRICT COURT.
01:11:07BUT IN TERMS OF A STAY, THEY HAVE NOT SUFFICIENTLY ESTABLISHED
01:11:10THE GROUNDS THAT THEY NEED.
01:11:12MR. CHERBIN.
01:11:14SO YOU CONCEED THE ONE-ON-ONE INTERVIEW, RIGHT?
01:11:19SO WHY IS IT THEN, WHAT IS THE DOCTRINAL BASIS FOR SAYING,
01:11:24THE PRESIDENT WANTS TO OPEN UP THE OVAL OFFICE TO BRING IN A
01:11:34JOURNALIST TO PROJECT HIS VIEWS?
01:11:40IF IT'S ONE-ON-ONE, HE CAN DO THAT ON A VIEWPOINT-BASED
01:11:44CRITERIA.
01:11:46WHY CAN HE DO THAT?
01:11:48THAT'S BALTIMORE SUN VERSUS ERLICH, WHICH WAS MY CASE,
01:11:51YOUR HONOR, I HAD THE PRIVILEGE OF ARGUING THAT CASE IN THE
01:11:54COURTH CIRCUIT.
01:11:55IN BALTIMORE SUN VERSUS ERLICH, THE COURT HELD THAT THERE WAS NO
01:11:58FIRST AMENDMENT RIGHT TO DEMAND A ONE-ON-ONE INTERVIEW WITH
01:12:01THE PRESIDENT.
01:12:02THEREFORE, THE PRESIDENT COULD BE SELECTED.
01:12:04HOW ABOUT FIVE ON?
01:12:06IF HE GOES OUT...
01:12:08FIVE FAVORITE JOURNALISTS.
01:12:10IF HE GOES OUT AND TAPS THEM ON THE SHOULDER AND SAYS,
01:12:13COME ON INTO MY OFFICE.
01:12:14THAT WAS PART OF THE FACT PATTERN IN BALTIMORE SUN VERSUS ERLICH,
01:12:17PRESS SECRETARY FOR GOVERNOR ERLICH, DID EXACTLY THAT WITH ONE
01:12:21PRESS GAGGLE BRIEFING IN A SMALL CONFERENCE ROOM.
01:12:25THIS IS FUNDAMENTALLY DIFFERENT, YOUR HONOR, AND WE THINK THAT
01:12:28JUDGE MCFADDEN GOT IT ABSOLUTELY RIGHT IN THAT THIS IS...
01:12:33BECAUSE HE'S STARTING FROM THE FULL POOL AND THEN SUBTRACTING,
01:12:37RATHER THAN...
01:12:38STARTING FROM THE FULL POOL AND THEN DISCRIMINATING BASED ON VIEWPOINT.
01:12:41RATHER THAN JUST ADDING...
01:12:43IF HE JUST GOES DOWN THE LIST, YOU KNOW,
01:12:45HE KEEPS A LIST OF REPORTERS HE LIKES AND DOESN'T,
01:12:48AND GOES DOWN AND...
01:12:50ALL RIGHT, THERE ARE 20 SEATS IN THE OVAL,
01:12:53I'M CALLING IN MY FAVORITE 20,
01:12:55AND NOT SURPRISINGLY, THAT'S A VIEWPOINT-BASED JUDGMENT.
01:12:59THAT WOULD BE A VIOLATION UNDER CHERYL VERSUS NIGHT
01:13:02AND ALL OF THE OTHER CASES?
01:13:04TO DO IT AS A WAY OF NARROWING THE POOL?
01:13:08IF HE DID IT JUST BY CALLING PEOPLE UP?
01:13:09NO, NO, NO. HE'S JUST PICKING HIS FAVORITE...
01:13:13THEN HE'S NOT EXCLUDING PEOPLE, HE'S INVITING...
01:13:16ONE, THREE, OR 20.
01:13:17THEN HE'S NOT EXCLUDING PEOPLE, HE'S INVITING PEOPLE,
01:13:20AND THE DOCTRIN...
01:13:21HE CAN INVITE HIS FAVORITE 20 JOURNALISTS
01:13:24INTO THE OVAL ON A VIEWPOINT BASIS.
01:13:27YES, YOUR HONOR, SO LONG AS HE IS NOT STAGING IT AS A POOL EVENT,
01:13:32HE CAN DO INDIVIDUAL EVENTS LIKE THAT.
01:13:34AND, YOUR HONOR, I CAN'T DO ANY BETTER...
01:13:36HE'S BEEN AWFULLY CLOSE TO WHAT'S HAPPENING HERE.
01:13:39WELL, I CAN POINT TO, JUST AS PERSUASIVE AUTHORITY,
01:13:46THE STATE DEMOCRACY DEFENDERS BRIEF THAT WAS FILED IN THE DISTRICT COURT
01:13:50AS AN AMICUS BRIEF,
01:13:5223 FORMER OFFICE HOLDERS,
01:13:54SOME OF THEM FORMER PRESS SECRETARIES TO THE WHITE HOUSE,
01:13:57MANY OF THEM IN THE CURRENT PRESIDENT'S PARTY,
01:14:00ONE OF THEM, JUDGE LUDDIG FROM THE FOURTH CIRCUIT,
01:14:02WHO WAS ON THE PANEL THAT VOTED AGAINST THE BALTIMORE SON IN ERLICH,
01:14:06AND ALL OF THEM HAVE DRAWN A SHARP DISTINCTION BETWEEN,
01:14:09AS JUDGE McFADDEN DID BASED ON THE RECORD EVIDENCE OF MY REPORTERS' TESTIMONY,
01:14:15THAT THERE IS A FUNDAMENTAL DISTINCTION IN THE WAY THE WHITE HOUSE OPERATES
01:14:20BETWEEN HOLDING A PULL SPRAY TYPE OF EVENT
01:14:23AND INVITING REPORTERS IN ONE BY ONE FOR INDIVIDUAL INTERVIEWS.
01:14:27LET ME ASK YOU TWO MORE JUST TO TRY TO PIN DOWN WHAT'S DOING WORK AND WHAT'S NOT.
01:14:32SO SAME ANALYSIS, TRYING TO TAKE OUT THE ACCESS DIMENSION
01:14:37FROM THE SPEAK WITH THE PRESIDENT DIMENSION.
01:14:40SO, HE'S PICKING JOURNALISTS WHO WILL BE NOT ALLOWED TO SPEAK WITH HIM,
01:14:46BUT JUST FOLLOW HIM AROUND AND OBSERVE HIM IN ORDER TO WRITE ARTICLES.
01:14:53HE CAN DO THAT ON A VIEW.
01:14:56HE CAN PICK HIS FAVORITE ONE OR TWO OR FIVE REPORTERS BASED ON VIEWPOINT.
01:15:02HE CAN PICK...
01:15:04SAME IDEA.
01:15:05SAME IDEA.
01:15:06YEAH, SURE.
01:15:07HE CAN PICK A PUPLE OF PEOPLE AND SAY FOLLOW ME FOR THE DAY.
01:15:08ABSOLUTELY.
01:15:09AND ANOTHER ONE TO TEST WHETHER RETALIATION WORKS DIFFERENTLY FROM FORUM.
01:15:17HE HAS A ONE-ON-ONE SCHEDULED WITH A FAVORED REPORTER.
01:15:24THAT REPORTER THEN SAYS SOMETHING THE PRESIDENT DOESN'T LIKE AND THE PRESIDENT CANCELS.
01:15:30CANCELS THE INTERVIEW BECAUSE OF THAT.
01:15:33BECAUSE OF THE STATEMENT.
01:15:35IS THAT...
01:15:36IS THAT PERMISSIBLE?
01:15:38OR IS THAT...
01:15:40YOU KNOW, IT'S A VIEWPOINT-BASED RETALIATION, BUT IN THE PRESIDENT'S INTIMATE ASSOCIATION WITH JOURNALISTS.
01:15:47THE RETALIATION HAS TO BE AN INCURSION INTO A FIRST AMENDMENT RIGHT HELD BY THE PLAINTIFF IN THE CASE.
01:15:54IN THE CASE THAT YOU JUST POSITED, I DON'T THINK THE JOURNALIST HAD A FIRST AMENDMENT RIGHT TO BE INVITED TO THE ONE-ON-ONE INTERVIEW.
01:16:01AND SO THE PRESIDENT'S CANCELATION, BASED ON NOT LIKING WHAT THE JOURNALIST SAID, DOESN'T INCURRENT TO THEIR FIRST AMENDMENT RIGHT.
01:16:08BUT IF YOU JUST MECHANISTICALLY APPLY THE ELEMENTS OF FIRST AMENDMENT RETALIATION LAW OR UNCONSTITUTIONAL CONDITIONS LAW,
01:16:22IT DOESN'T MATTER THAT HE DIDN'T HAVE THAT RIGHT IN THE FIRST PLACE.
01:16:26IF HE'S BEING DENIED A BENEFIT FOR A BAD REASON, THAT'S UNLAWFUL RETALIATION.
01:16:32WELL, BUT...
01:16:33AND YET, WE STILL HAVE THIS INSTINCT, LIKE OF COURSE HE CAN CANCEL THAT INTERVIEW.
01:16:38AND MY INSTINCT IS THE SAME AS YOURS.
01:16:40SO WHY IS THAT?
01:16:41BUT I COME AT IT FROM A FIRST...
01:16:42WHY IS THAT?
01:16:43I COME AT IT FROM THE FACTS OF THIS CASE FIRST AMENDMENT STANDPOINT.
01:16:46THE FIRST AMENDMENT APPLIES HERE BECAUSE THERE IS A PUBLIC FORUM THAT IS DESIGNATED FROM TIME TO TIME FOR POOL OPPORTUN...
01:16:53I'M SORRY, A GOVERNMENT OFFICE THAT IS DESIGNATED A NONPUBLIC FORUM FROM TIME TO TIME FOR PRESS OPPORTUNITIES ON A ROTATING BASIS BY THE POOL.
01:17:03A FIRST AMENDMENT RIGHT ATTACHES TO THOSE OPPORTUNITIES, NUMBER ONE.
01:17:07NUMBER TWO, MY REPORTERS ARE PART OF A PRESS POOL WHO ARE BEING DENIED OPPORTUNITIES FOR RETALIATORY REASONS.
01:17:14AND THAT ATTACHES THEIR FIRST AMENDMENT RIGHT TO GATHER NEWS UNDER CHERYL V. KNIGHT IN A SETTING IN WHICH THEY POSSESS A FIRST AMENDMENT RIGHT.
01:17:24THAT'S WHAT DISTINGUISHES IT FROM THE ONE-ON-ONE INTERVIEWS.
01:17:27AND I WOULD URGE THE COURT TO LOOK NO FURTHER THAN THE STATE DEMOCRACY DEFENDER'S BRIEF.
01:17:32JUST END MY REPORTERS TESTIMONY FOR THE FACTUAL RECORD OF WHY THOSE TWO FUNDAMENTALLY DIFFERENT THINGS.
01:17:39SO THANK YOU.
01:17:40THANK YOU, YOUR HONOR.
01:17:42THANK YOU.
01:17:43THANK YOU VERY MUCH.
01:17:46MR. MCARTHUR HAS RESERVED TWO MINUTES FOR REBUTTAL.
01:17:55JUST A FEW POINTS.
01:17:56TO YOUR QUESTION, JUDGE PILLARD, ABOUT THE LONGSTANDING EXISTENCE OF THE POOL.
01:18:00THE THING ABOUT FORUMS THAT ARE CREATED BY THE GOVERNMENT IS THEY CAN BE CLAWED BACK.
01:18:05PRESIDENT TRUMP IS UNDER NO OBLIGATION TO RUN THE PRESS POOL THE WAY HIS PREDECESSORS DID OR EVEN THE WAY HE HIMSELF DID IN HIS FIRST ADMINISTRATION.
01:18:12IF HE WANTED TO RECONSTITUTE THE PRESS POOL AS HIS 20 FAVORITE REPORTERS, WHICH I HEARD MY FRIEND ON THE OTHER SIDE TO CONCEDE, HE CAN DO THAT.
01:18:21AND I THINK THAT CONCEDES THE CASE.
01:18:23BECAUSE IF HE CAN MAKE IT THE 20 THAT HE MOST PREFERS BASED ON THEIR VIEWPOINTS, HE CAN CERTAINLY EXCLUDE ONE BASED ON VIEWPOINT.
01:18:33TO THE LINE OF QUESTIONS ABOUT WHERE THIS CASE FITS IN PUBLIC FORUM EXISTING CASE LAW, IT DOESN'T.
01:18:40BECAUSE THERE IS NO CASE ADDRESSING A SPACE LIKE THIS ONE IN THE PRESIDENT'S IMMEDIATE PERIPHERY IN A HIGHLY RESTRICTED SPACE.
01:18:48THIS SPACE IS NOT LIKE A POLLING PLACE.
01:18:50IT'S NOT LIKE AN AIRPORT TERMINAL.
01:18:52JUST TO BE CLEAR, THIS SPACE, YOU'RE TALKING ABOUT THE OVAL OFFICE BUT ALSO AIR FORCE ONE AND ALSO THE MAR-A-LAGO SPACE?
01:18:58YES, I THINK THE OVAL OFFICE IS SORT OF THE PERADEMATIC ONE, THE FOCUS OF THE CASE, AS JUDGE McFADDEN SAID, BUT I THINK THE PRINCIPLE APPLIES TO THE OTHER SPACES AS WELL.
01:19:08WHETHER YOU THINK OF IT AS SIMPLY NOT A FORUM AT ALL OR AS A DIFFERENT KIND OF FORUM, WE NEED A NEW BOX FOR THIS.
01:19:15I TEND TO THINK OF IT AS SOMETHING LIKE A PROPRIETARY FORUM.
01:19:18IT DOESN'T FIT WITHIN THE EXISTING CASE LAW ON FORUMS.
01:19:22WHAT DO YOU MEAN BY PRIETARY FORUM?
01:19:25I MEAN IT'S A ZONE OF DISCRETION WHERE THE PRESIDENT GETS TO CHOOSE, INCLUDING BASED ON A VIEWPOINT, WHO HE ADMITS TO THOSE SPACES JUST LIKE HE GETS TO CHOOSE BASED ON A VIEWPOINT WHO HE DISCLOSES HIS MIND TO IN ANSWERING QUESTIONS OR GIVING AN EXCLUSIVE INTERVIEW.
01:19:42ALTHOUGH THE CASE DOESN'T FIT IN THE FORUM CASES, I DO THINK IT WOULD BE A MISTAKE TO TOO HASTILY DISMISS BALTIMORE SOME.
01:19:50THAT CASE WAS NOT ABOUT GOVERNMENT SPEECH.
01:19:52READ IT CAREFULLY, JUDGE BILLARD.
01:19:53OH, IT WAS.
01:19:54THERE'S A PART AT THE END THAT'S ABOUT GOVERNMENT SPEECH THAT ADDRESSES A COMMENT THE GOVERNOR HAD MADE.
01:20:00THE HEART OF THE ANALYSIS IN THE CASE, THE COURT CONCEIVES OF AS DENIAL OF ACCESS TO DISCRETIONARILY AFFORDED INFORMATION.
01:20:09IF YOU GIVE INFORMATION TO SOME REPORTERS, YOU HAVE TO GIVE IT TO OTHERS.
01:20:13THAT IS WHAT THIS CASE IS ABOUT.
01:20:15THEY WANT INFORMATION ABOUT WHAT IS HAPPENING BEHIND THOSE CLOSED DOORS WITH THE PRESIDENT AND HIS GUESTS IN THOSE RESTRICTED SPACES.
01:20:25ISN'T THAT SORT OF CIRCULAR?
01:20:27BECAUSE THERE, EVERYBODY AGREED THAT IT WAS DISCRETIONARILY AFFORDED BECAUSE A GOVERNMENT OFFICIAL DOESN'T HAVE TO RETURN A REPORTER'S PHONE CALL.
01:20:37AND A GOVERNMENT OFFICIAL HAS COMPLETE DISCRETION ON WHO HE OR SHE INVITES IN FOR AN INTERVIEW.
01:20:43SO THAT'S WHY THAT WAS DISCRETIONALLY AFFORDED.
01:20:45WHEREAS YOU'RE A LITTLE BIT BOOTSTRAPPING OR ARGUING WITH IN THE CIRCLE IF YOU SAY, WELL, HERE IT'S DISCRETIONARY.
01:20:51WHEREAS IN FACT THE COURTS AND THE PRESS AND THE WHITE HOUSE HAVE UNDERSTOOD THE POOL NOT TO BE DISCRETIONARY IN THE SENSE THAT IT REALLY ENTAILS GOVERNMENT SPEECH.
01:21:05OR JUST PUTTING THAT ASSIDE, BECAUSE I UNDERSTAND YOU DISPUTE THAT, THEY HAVE NOT SEEN THIS AS A PLACE WHERE THE WHITE HOUSE HAS DISCRETION TO PICK AND CHOOSE BASED ON VIEWPOINT.
01:21:19AND SO I'M NOT SURE WHAT DISCRETIONARY...
01:21:22WHETHER THEY'VE SEEN IT THAT WAY OR NOT, WHAT I'M SAYING IS...
01:21:24DISCRETIONARILY AFFORDED INFORMATION GETS YOU EXCEPT TO ASSUME THAT YOU WIN AND THEN SAY THAT YOU WIN.
01:21:29I DON'T THINK IT'S ASSUME THAT I WIN.
01:21:31WHAT I WOULD SAY IS THAT IT'S THE SAME PRINCIPLE.
01:21:34THE SAME PRINCIPLE WHEREBY A GOVERNANT OFFICIAL DOESN'T HAVE TO ANSWER QUESTIONS FROM REPORTERS WHOSE COVERAGE HE DOESN'T LIKE,
01:21:40SHOULD BE MODESTLY EXTENDED TO COVER THIS VERY ANALOGUS SITUATION OF DO YOU HAVE TO ADMIT SOMEONE TO YOUR PERSONAL SPACE TO
01:21:48OBSERVE WHAT YOU ARE SAYING AND DOING THERE SO THEY CAN REPORT ON YOU JUST BECAUSE YOU'VE GIVEN THAT ACCESS TO SOME OTHER REPORTERS.
01:21:55I THINK FROM BALTIMORE SUN IS THAT THIS IS ROUTINE IN THIS INDUSTRY AND THAT SHOULD INFORM HOW YOU THINK ABOUT THE FIRST AMENDMENT.
01:22:04THE COURT SAID GOVERNMENT OFFICIALS FREQUENTLY AND WITHOUT LIABILITY EVALUATE REPORTERS AND REWARD THEM WITH ADVANTAGES OF ACCESS.
01:22:13BUT, MR. MCCARTHUR, IF YOU GO BY WHAT IS ROUTINE IN THE INDUSTRY, WHAT IS ROUTINE IN THE PRESS POOL AND THE PRESS CORE IS
01:22:20ACTUALLY QUITE DIFFERENT FROM WHAT IS ROUTINE IN ANSWERING PHONE CALLS OR INVITING INDIVIDUAL OR SMALL GROUPS OF JOURNALISTS IN FOR
01:22:29CONVERSATIONS WITH A PUBLIC COMMISSION.
01:22:33BUT I THINK IT'S...
01:22:34SO WHAT IS ROUTINE ACTUALLY CUTS AGAINST YOU.
01:22:37LET ME ASK YOU, IS IT THE GOVERNMENT'S POSITION THAT THE PRESIDENT HAS ABOLISHED THE PRESS POOL?
01:22:45NO, I DON'T THINK HE'S ABOLISHED THE PRESS POOL.
01:22:48HE HASN'T.
01:22:49NO.
01:22:50JUST ONE FINAL POINT, IF I MAY?
01:22:53JUDGE KATZIS, I DID NOT HEAR AN ANSWER TO THE QUESTION OF HOW YOU CAN CABIN THIS LEGAL PRINCIPLE
01:23:00SO THAT WE AREN'T GOING TO HAVE CONSTANT INQUIRIES INTO THE PRESIDENT'S STATE OF MIND ABOUT WHO HE IS CHOOSING TO ADMIT
01:23:06TO THESE SPACES.
01:23:07AND AGAIN, THIS IS PRECISELY WHAT THE COURT IN BALTIMORE SUN WARNED AGAINST.
01:23:12THAT IF YOU ACCEPT THIS PRINCIPLE, YOU ARE GOING TO PLANT THE SEED OF A CONSTITUTIONAL CASE IN EVERYDAY INTERACTION.
01:23:19I AM WORRIED ABOUT THAT.
01:23:22BUT LET ME GIVE YOU A COUPLE OF COMPETING CONSIDERATIONS.
01:23:28TO ME, THESE ARE HARM POINTS.
01:23:32ONE IS, YOU KNOW, WE'VE SEEN A LOT OF CASES LATELY WHERE THE EXECUTIVE BRANCH IS CLAIMING INTERIM HARM TO SUPPORT STAYS.
01:23:45MANY OF THEM INVOLVE INJUNCTIONS THAT DIRECT HOW THE PRESIDENT PERFORMS OFFICIAL DUTIES.
01:23:58RECOGNIZING INFERIOR OFFICERS, SPENDING MONEY, RIGHT?
01:24:01WE DON'T HAVE THAT HERE.
01:24:04THIS IS, IT'S DIGNATARY IN A SENSE, BUT IT'S MORE ABSTRACT IN THAT SENSE.
01:24:10AND THEN, YOU KNOW, IN TERMS OF WHAT'S GOING TO HAPPEN IN THE, HOWEVER LONG IT TAKES TO ADJUDICATE THE APPEAL ON THE MERITS.
01:24:24YEAH, IT NO DOUBT STICKS IN, WILL STICK IN THE WHITE HOUSE'S CRAW, BUT IT IS THE SAME ARRANGEMENT THAT PEOPLE HAVE BEEN LIVING UNDER.
01:24:41AND THE MERIT'S POINT THAT HE CAN CLAW IT BACK IS MAYBE A LITTLE BIT DIFFERENT FROM THE HARM POINT THAT, YOU KNOW, THIS WILL NOT IMPERILLE THE PRESIDENCY IF IT
01:24:54PERSISTS FOR A FEW MONTHS OR HOWEVER MANY MONTHS WHILE THE APPEAL IS PENDING.
01:24:59SO I DO THINK IT IS A SPECIES OF DIGNATARY HARM, BUT I WOULD NOT MINIMIZE IT.
01:25:04I DO THINK IT IS A SERIOUS DIGNATARY HARM.
01:25:07IT IS NOT FAR OFF FROM A JUDICIAL DECREE ORDERING THE PRESIDENT TO ANSWER A SPECIFIC REPORTER'S QUESTION.
01:25:13IT IS SO INTERESTING TO ME THAT YOU MAKE THAT ARGUMENT.
01:25:16THE RECORD IN THIS CASE IS REALLY EDIFYING IN THE SENSE THAT DURING THE WATERGATE PERIOD THE PRESS POOL WAS RIGHT IN THERE WITH PRESIDENT NIXON.
01:25:28DURING THE SCANDALS WITH PRESIDENT CLINTON, THE PRESS POOL WAS RIGHT IN THERE.
01:25:36WHEN VARIOUS PRESIDENTS WERE AILING AND DYING, THE PRESS POOL WAS RIGHT IN THERE WITH THEM.
01:25:43AND THIS IS THE TRADITION WHEN YOU TALK ABOUT WHAT'S ROUTINE IN YOUR REFERENCE TO BALTIMORE SUN.
01:25:52TO ME, I MEAN, I FOUND THAT REALLY IMPRESSIVE THAT WE HAVE A FIRST AMENDMENT THAT ENABLES THAT KIND OF OBSERVATION OF OUR CHIEF EXECUTIVE.
01:26:09AND TO ME, THAT DOES AFFECT THE CLAIM OF A REFERABLE INJURY THAT'S MADE HERE.
01:26:16SO I THINK WHAT IS ROUTINE, WHAT THE BALTIMORE SUN COURT SAID IS ROUTINE IS GOVERNMENT OFFICIALS CHOOSING WHO THEY GIVE ACCESS TO INFORMATION TO BASED ON REASONS OF THEIR OWN, INCLUDING THEIR ASSESSMENT OF THE COVERAGE.
01:26:30WHO THEY THEMSELVES ARE WILLING TO SPEAK TO.
01:26:33OR TO GIVE INFORMATION TO.
01:26:34I DON'T THINK IT WAS JUST ABOUT ANSWERING QUESTIONS IN BALTIMORE SUN.
01:26:37IT WAS ABOUT GIVING INFORMATION.
01:26:39AND IT WAS A FAR MORE EXCLUSIONARY POLICY THAN WHAT WE HAVE HERE.
01:26:41THE GOVERNOR HAS SAID EVERYONE IN THE EXECUTIVE BRANCH CAN'T TALK TO OR GIVE INFORMATION TO THESE TWO REPORTERS.
01:26:47OKAY?
01:26:48AND SO WHAT THE PRESIDENT HAS DONE HAS TAKEN THAT ROUTINE ASPECT OF THIS INDUSTRY WHERE THERE'S JOCKEYING FOR ACCESS AND GRANTING OF INFORMATION BASED ON ASSESSMENTS OF REPORTERS AND THEIR COVERAGE AND EXTENDED IT TO THIS SPACE, WHICH HE IS ENTITLED TO DO.
01:27:03HE IS UNDER NO OBLIGATION TO RUN THE PRESS FULL THE WAY IT HAS HISTORICALLY BEEN RUN.
01:27:10THANK YOU.
01:27:13THANK YOU BOTH VERY MUCH.
01:27:20THE CASE IS SUBMITTED.