During Thursday's appeal, a DC Circuit Court of Appeals judge questioned a lawyer for the Trump Administration about First Amendment protections of journalism.
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00:00you've said that that the AP is not engaged in communicative activity when
00:06they're inside the Oval Office so how should we understand what they're doing
00:10should we understand it as news gathering so I if I if I said that I if
00:17I said that I misspoke the district court found that they were engaged in
00:22communicative activity because they could send essentially in real time
00:26things out like texts and pictures but I I really don't think anything turns on
00:31that analysis here I don't think the analysis would be any different if the
00:36rule in the Oval Office were no internet you can come in you can observe you can
00:41take notes you can take pictures but you can't transmit anything until you leave
00:45I think if that were the rule they would be making the exact same claim we would
00:49be making the exact same defense so I don't think anything turns on that but I
00:53do think we are not restricting their ability to communicate or at least we're
00:58restricting it only in the sense that we are denying them access to information
01:02so so that's what I'm wondering though so so putting aside the access to the
01:06internet you know if they're just observing and there's probably no
01:10communication and then they're doing something like news gathering is that
01:14activity does that activity have any first amendment protections yes I think that
01:20is what this Gordon Price talked about as sort of a pre-communicated step in the
01:25creation of speech I think it does have it is first amendment protected so to agree
01:34with the government's position here would we have to say that news gathering is not
01:38covered by the first amendment not at all not at all I think you would have to
01:43say that in these particular circumstances where you're talking about access to a space
01:49that's in the president's immediate periphery that his interest in autonomy just
01:57like in who he reveals his mind to override any first amendment interest in
02:02access to him to observe him up close personally and record what he is doing
02:08and saying so that you can later report it they can't force the president to
02:12answer their questions just because they're not claiming that they have any
02:15right to force the president to answer their questions that's right that they
02:18have any right without you know very exhaustive security examination or that
02:25they have any right to say anything disruptive or distract him from his work
02:28or that they have any right as the press pool as a whole to be invited at moments
02:35when the president wants to concentrate on his writing and his work so it's a
02:41little unclear to me when you say a right of autonomy I think the Oval Office suddenly
02:50seems like like a place of silent retreat and it's clearly not I mean he has a private
03:00study and as I said he can exclude people when when he thinks his autonomy so requires
03:07people as a whole but not on based on view so I guess I'm trying to understand the
03:12connection between the claimed prerogative to do not exclusion of humans or members of
03:22the press but of people because of their viewpoints how is that more challenging to
03:29the president's autonomy than just the ability to say nobody today at all because the president has
03:41speech and associational rights of his own right and so if you're looking at can the president decline
03:49to answer any questions from the AP because he disagrees with the AP's editorial choices everyone agrees
03:56the answer to that is yes the question is why I think the answer is because the president
04:01has autonomy over his mind and who he chooses to reveal that information to that is absolutely
04:09true of a mayor and a governor I think the same thing would be true of other government officials
04:18on this point yes when you're talking about what's in their mind and whether they have to reveal that to
04:30someone or who they admit nobody's saying that the president has to reveal anything he doesn't want to
04:36reveal it's only about whether somebody is is allowed when the president decides we're going to have a press
04:45pull allowed notwithstanding viewpoint to be a participant in that at the times when the president
04:51chooses to have the press pull present what I what I'm trying to explain just pillard apparently not
04:56very successfully is that it's the same principle the same principle that says the president can
05:02consider viewpoint in deciding to whom he discloses is his mind should apply to this adjacent situation
05:09of whom he admits to his immediate periphery in private personal proprietary whatever adjective you
05:18want to use to describe it those sorts of spaces he has associational rights just like he has speech
05:24rights
05:24rights
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