A federal appeals court ruling Tuesday on demonstrators’ access to the steps of the Capitol could bode poorly for President Donald Trump’s attempt to ban three media organizations from the White House.
The majority opinion, written by Trump appointee Neomi Rao, concluded that the East Steps of the Capitol are a “nonpublic forum” — just like most areas of the White House grounds, including the press facilities. While the government may impose restrictions on access to those nonpublic areas, the limits must be “viewpoint neutral,” apply “objective, workable standards” and not permit officials to exercise “unbridled discretion over a forum’s use,” the D.C. Circuit Court of Appeals panel concluded.
“A regulation that grants the government arbitrary control over who may speak invites the suppression of disfavored viewpoints and undermines the First Amendment’s core protections,” wrote Rao, who was joined in the majority by Judge Karen Henderson, a George H.W. Bush appointee.
The ruling, on the eve of a hearing over restoring White House accessfor POLITICO, CNN and MS NOW, reaffirms the D.C. Circuit’s longstanding First Amendment precedents at an inopportune time for Trump. The president has explicitly described his ban on the three outlets as a punishment for publishing what he calls “fake news.”
“Fake News people and publications that only write negatively, and who violate our National Security by writing false and defamatory stories with unknown ‘sources,’ shouldn’t be allowed access to the most important Office anywhere in the World,” Trump said on social media Monday.
The outlets have said their access was revoked because the White House objected to their reporting and that the ban “threatens press freedom and the public’s right to independent journalism free from government interference.”
The D.C. Circuit would hear any appeals in the litigation over Trump’s media ban, and Trump has in fact already said he anticipates filing an appeal, presuming that he will be dealt a defeat in district court.
The White House did not immediately respond to a request for comment.
The D.C. Circuit’s Tuesday ruling stemmed from a lawsuit brought by Patrick Mahoney, a clergyman who sought to hold prayer vigils and demonstrations on the East Steps of the Capitol several months after the Jan. 6, 2021 attack, which resulted in new access restrictions. His permit was denied in part based on Capitol Police regulations that prohibit public demonstrations on the steps unless they are sponsored by a member of Congress.
Though the case has inched through the courts for years, Tuesday’s ruling resolves a key question, labeling the Capitol’s East Steps a “nonpublic forum” for which congressional authorities may restrict public access — in part because lawmakers use those steps to enter and exit the building.
But allowing members of Congress to sponsor gatherings on the steps creates an arbitrary system, the majority concluded.
“Because the protection of unpopular speech and advocacy is central to the First Amendment, we cannot leave it to the selective enforcement of members,” Rao wrote.
Notably, Rao’s opinion cites a D.C. Circuit ruling last year that concluded “it would be unreasonable to control access to White House press facilities through standardless discretion.”
The third judge on the panel, Clinton appointee Judith Rogers, dissented, but her opinion was even more protective of free-speech rights.
Rogers said she agreed with her colleagues that the “selective exception” for demonstrations sponsored by lawmakers was unconstitutional. However, she said she would have held that the lower portion of the Capitol steps was a public forum where the government was obligated to permit protest activity.
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