During Thursday's appeal before the DC Circuit Court of Appeals, the Trump Administration's lawyer explained the differing levels of press access to different rooms in the White House.
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00:00Mr. MacArthur, so you've focused on the space, you know, the type of space, the Oval Office, Air Force One.
00:07What about the nature of the press pool, which itself is a very highly selective, you know, a very small group of all hard pass holders?
00:18And I wonder if one analogy, it may not be a perfect analogy, is to Finley and American Library Association.
00:26Because 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.
00:38They didn't say it's government speech, but they said because it's highly selective, it's not a forum.
00:43I do think that is an additional factor that you should consider here.
00:46So 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 principle extend to the president?
01:03I mean, I think the principle extends to the president in these private spaces where he has an interest in autonomy.
01:12So you would apply the same Finley standard to the Oval Office?
01:19Which Finley standard?
01:20Allowing the government to control how it supports speakers the same way as in Finley, to the same degree under the First Amendment?
01:30I don't know if it's to the exact same degree, but I think that strand of thought is implicated here.
01:36The reason that I ask is because Finley explicitly says viewpoint-based discrimination is not allowed in that context.
01:44And 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.
01:58It's clearly erroneous, nor on this record could you.
02:00No, we're not disputing that.
02:02Right, so even, so in Finley, it's, like, what is your case that government, whether physical space or, you know, services like the second-class mailing in Cornelius,
02:18like copyright in Mattel versus Tant, what is your case that the government can either restrict access to public space or restrict benefits?
02:33That, to which someone would otherwise be entitled, you know, they don't have to, we don't force people to be able to express the viewpoint wherever they want.
02:41But 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 access on their viewpoint?
02:54Again, I don't, I don't have a case because I don't think there is one that addresses.
02:58Exactly. There is no case.
02:59There is no case that addresses one way or the other.
03:03Oh, there are many cases that say no.
03:04No, this type of space.
03:06This is where one of the places where I think the district court went astray is simply assuming that all government property is created equal or even all government spaces in a given government building are created equal.
03:26I think First Amendment analysis should be flexible enough to pick up distinctions between things like the Oval Office and the Brady Briefing.
03:34So 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.
03:49And not as a press facility.
03:51That is not its dedicated purpose.
03:53And not as a press facility.
03:53That 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?
03:58I mean, there may be other places in the White House that the analysis would be different.
04:05You could look at, for example, the East Room.
04:07I 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, I think the East Room is probably in between those two.
04:17So how does your test apply to the East Room?
04:20I think the East Room would still fall on my side of the line because...
04:24You could exclude people based on their viewpoint.
04:27That's correct.
04:28Hard pass holders.
04:29That's correct.
04:30Because that, again, is a highly restricted space whose function is to host events.
04:36Its function isn't as a press facility.
04:39And let me just give you an example here.
04:42I think it helps to make it concrete.
04:43So one of the events that they are complaining about having been excluded from was a reception in February in honor of Black History Month that was held in the East Room.
04:56Under the rule that they are proposing and under the rule adopted by the court below, the White House could not exclude from that event a news organization that is avowedly a white supremacist organization because that would be engaging in viewpoint discrimination.
05:15Similarly, if the president decided to host the Prime Minister of Israel in the Oval Office, he could not, as long as he admitted other reporters to that event, he could not exclude a news organization that was avowedly anti-Semitic.
05:31That's why when I think about examples like this, the sort of government proprietary function idea does inform this analysis.
05:42There is a time and a place for wide open, no holds barred, all viewpoints represented coverage of the administration.
05:50And the White House has set aside a space for that.
05:54That is the Brady Briefing Room.
05:56They have their 30 hard passes.