I have been following the Ateba case closely, writing about it in From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection, forthcoming in THE FUTURE OF PRESS FREEDOM: DEMOCRACY, LAW & THE NEWS IN CHANGING TIMES (Cambridge U. Press, RonNell Andersen Jones and Sonja R. West eds. forthcoming 2025). I am particularly interested in application of journalist standards of bona fide repute in the field to deal with the question of faux journalists.

Today’s opinion rejects a journalist’s challenge to these rules under the First Amendment, in an opinion that strikes me as quite sound. But perhaps the most important part of the opinion has to do with the D.C. Circuit’s description of the White House press room as a nonpublic forum that still cannot engage in viewpoint discrimination, a point that is relevant to the AP’s current fight over access with the Trump White House. Here’s the relevant part:

As a nonpublic forum, access to the White House Press Area “can be restricted as long as the restrictions are” viewpoint neutral and reasonable. Cornelius, 473 U.S. at 800. The purpose of the forum is central to this analysis, because the government may “reserve the [nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 46. “Control over access to a nonpublic forum can be based” even “on subject matter and speaker identity so long as” it meets the requirements of reasonableness and viewpoint neutrality. Cornelius, 473 U.S. at 806….

Second, the Hard Pass Policy is viewpoint neutral. Viewpoint discrimination is an “egregious form of content discrimination,” which occurs when a government regulation “targets not subject matter, but particular views taken by speakers on a subject.” Rosenberger, 515 U.S. at 829. The Hard Pass Policy does not reference viewpoints in any way, and Ateba does not allege that either the White House or the Senate Daily Press Gallery denies press credentials based on
the content of a correspondent’s reporting….

In sum, we conclude that the White House Hard Pass Policy does not violate the First Amendment. Assuming that Ateba’s loss of preferential access to the Press Area implicates
the First Amendment at all, his rights have not been impermissibly burdened because the White House’s reliance on an outside credentialing body is both reasonable and viewpoint neutral. Moreover, the role played by the Senate Daily Press Gallery in the credentialing process does not inject “unbridled discretion” into the process because its membership decisions are guided by the concrete standards enumerated in its Standing Committee Governing Rules; and the First Amendment does not require the gallery to set a deadline for the adjudication of membership applications. We therefore affirm the judgment of the district court.

Update: Coincidentally, the AP won a preliminary injunction in the district court today on White House Access, based upon the viewpoint discrimination argument.