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Federal Judge Asks Trump Admin Lawyer: Is News Gathering Covered By The First Amendment?
Forbes Breaking News
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4/18/2025
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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00:00
you've said that that the AP is not engaged in communicative activity when
00:06
they're inside the Oval Office so how should we understand what they're doing
00:10
should we understand it as news gathering so I if I if I said that I if
00:17
I said that I misspoke the district court found that they were engaged in
00:22
communicative activity because they could send essentially in real time
00:26
things out like texts and pictures but I I really don't think anything turns on
00:31
that analysis here I don't think the analysis would be any different if the
00:36
rule in the Oval Office were no internet you can come in you can observe you can
00:41
take notes you can take pictures but you can't transmit anything until you leave
00:45
I think if that were the rule they would be making the exact same claim we would
00:49
be making the exact same defense so I don't think anything turns on that but I
00:53
do think we are not restricting their ability to communicate or at least we're
00:58
restricting it only in the sense that we are denying them access to information
01:02
so so that's what I'm wondering though so so putting aside the access to the
01:06
internet you know if they're just observing and there's probably no
01:10
communication and then they're doing something like news gathering is that
01:14
activity does that activity have any first amendment protections yes I think that
01:20
is what this Gordon Price talked about as sort of a pre-communicated step in the
01:25
creation of speech I think it does have it is first amendment protected so to agree
01:34
with the government's position here would we have to say that news gathering is not
01:38
covered by the first amendment not at all not at all I think you would have to
01:43
say that in these particular circumstances where you're talking about access to a space
01:49
that's in the president's immediate periphery that his interest in autonomy just
01:57
like in who he reveals his mind to override any first amendment interest in
02:02
access to him to observe him up close personally and record what he is doing
02:08
and saying so that you can later report it they can't force the president to
02:12
answer their questions just because they're not claiming that they have any
02:15
right to force the president to answer their questions that's right that they
02:18
have any right without you know very exhaustive security examination or that
02:25
they have any right to say anything disruptive or distract him from his work
02:28
or that they have any right as the press pool as a whole to be invited at moments
02:35
when the president wants to concentrate on his writing and his work so it's a
02:41
little unclear to me when you say a right of autonomy I think the Oval Office suddenly
02:50
seems like like a place of silent retreat and it's clearly not I mean he has a private
03:00
study and as I said he can exclude people when when he thinks his autonomy so requires
03:07
people as a whole but not on based on view so I guess I'm trying to understand the
03:12
connection between the claimed prerogative to do not exclusion of humans or members of
03:22
the press but of people because of their viewpoints how is that more challenging to
03:29
the president's autonomy than just the ability to say nobody today at all because the president has
03:41
speech and associational rights of his own right and so if you're looking at can the president decline
03:49
to answer any questions from the AP because he disagrees with the AP's editorial choices everyone agrees
03:56
the answer to that is yes the question is why I think the answer is because the president
04:01
has autonomy over his mind and who he chooses to reveal that information to that is absolutely
04:09
true of a mayor and a governor I think the same thing would be true of other government officials
04:18
on this point yes when you're talking about what's in their mind and whether they have to reveal that to
04:30
someone or who they admit nobody's saying that the president has to reveal anything he doesn't want to
04:36
reveal it's only about whether somebody is is allowed when the president decides we're going to have a press
04:45
pull allowed notwithstanding viewpoint to be a participant in that at the times when the president
04:51
chooses to have the press pull present what I what I'm trying to explain just pillard apparently not
04:56
very successfully is that it's the same principle the same principle that says the president can
05:02
consider viewpoint in deciding to whom he discloses is his mind should apply to this adjacent situation
05:09
of whom he admits to his immediate periphery in private personal proprietary whatever adjective you
05:18
want to use to describe it those sorts of spaces he has associational rights just like he has speech
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