On Thursday, a DC Circuit Court of Appeals judge questioned a Trump Administration attorney about the nature of speech President Trump is using in the Oval Office.
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00:00You know, the nature of the space is also connected to the idea that the president in the Oval Office and Air Force One is engaging in government speech, because the Oval Office, Air Force One are not places where other parties, journalists, or other people have any expectation to be able to speak themselves.
00:21I think that is true.
00:22I mean, the president, whenever he speaks, obviously he's engaging in government speech.
00:29But if you're talking just about sort of pre-communicative activity of, you know, observing what he says and does on Air Force One, I think that is a different sort of analysis that isn't pure government speech.
00:46Tell me what's wrong with this way of thinking about it, focusing on speakers rather than places, or maybe.
00:56Incidentally, addressing places, but really focusing on the speakers.
01:02There are two kinds of communication going on in the White House press pool event.
01:14One is communication between the president and the journalists, and one is between journalists and members of the public.
01:28And you can sort of separate them and say, okay, president communicating to journalists with you 100%, but the district court took care of that problem, making crystal clear, president doesn't have to engage with any journalist he doesn't want to engage with.
01:50Absolute discretion to pick who gets to ask questions and how he answers them, viewpoint-based, like whatever he wants.
01:58And then the other level, the other level of communication is the journalists are sort of they're passive observers, and then they are broadcasting out.
02:16That feels a little less intrusive, you know, sort of like if we admit press pool to this argument, they have no expectation of speaking.
02:32You're here to observe and talk to the public, I mean, that's communicative, that's more communicative than the stuff in price was.
02:44And that just doesn't implicate the president's speech interests in the same way.
02:53So I think I agree with that, Judge Katz, as to that step, once they've got the information.
02:59Once they've got the information and they are deciding to communicate it out to the public, they are engaged in their own speech.
03:06But there is the intermediate step of whether they are going to be granted access to that information in the first place.
03:13And that's what we were talking about here, because what we were talking about is not admitting them to the space and then preventing them from communicating.
03:22The question is whether they get admitted to the space in the first place so that they can collect and gather that information.
03:27And that is, I do think, very much the analysis of the Fourth Circuit in Baltimore Sun, where the court said it is a routine aspect of this industry
03:39that government officials grant or withhold access to non-public information based on their assessment of reporters' coverage.