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Capitol access ruling puts White House press restrictions under new legal scrutiny

A federal appeals court said restrictions on demonstrations at the Capitol must be viewpoint neutral and governed by clear standards. The decision could complicate President Donald Trump’s effort to bar POLITICO, CNN and MS NOW from White House access over their coverage.

Capitol access ruling puts White House press restrictions under new legal scrutiny
WASHINGTON — A federal appeals court ruling on demonstrations at the U.S. Capitol is putting fresh pressure on President Donald Trump’s effort to restrict access for three news organizations whose reporting he has criticized. The U.S. Court of Appeals for the D.C. Circuit ruled Tuesday that the Capitol’s East Steps are a “nonpublic forum,” meaning congressional authorities may impose limits on access. But the court said those limits must be viewpoint neutral, based on objective and workable standards, and cannot give officials unchecked discretion over who may use the space. “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,” Judge Neomi Rao wrote in the majority opinion. Rao, a Trump appointee, was joined by Judge Karen Henderson, appointed by President George H.W. Bush. The ruling came just before a federal court hearing on whether to restore White House access for POLITICO, CNN and MS NOW. The organizations say the administration revoked their access because the White House objected to their reporting. They have called the restrictions a threat to press freedom and the public’s right to independent journalism. Trump has openly described the restrictions as punishment for coverage he considers unfavorable. In a social media post Monday, he said outlets that publish what he calls “fake news” and stories based on “unknown sources” should not have access to the White House. The D.C. Circuit would hear an appeal in the White House access case. Trump has indicated he expects to appeal if a lower-court ruling goes against him. The Capitol case began with a lawsuit by Patrick Mahoney, a clergyman who sought permission to hold prayer vigils and demonstrations on the East Steps several months after the Jan. 6, 2021, attack. New security restrictions adopted afterward barred public demonstrations on the steps unless they were sponsored by a member of Congress. The appeals court found that exception unconstitutional because it created a selective system dependent on lawmakers’ approval. The majority said protecting unpopular speech is a central purpose of the First Amendment and cannot be left to the discretionary enforcement of individual members of Congress. Rao’s opinion also cited a D.C. Circuit decision from last year holding that access to White House press facilities could not be controlled through “standardless discretion.” That precedent could become significant as the court considers the administration’s treatment of the three news organizations. Judge Judith Rogers, a Clinton appointee, agreed that the congressional-sponsorship exception was unconstitutional but went further. She argued that the lower portion of the Capitol steps should be treated as a public forum, where the government generally must allow protest activity. The White House had not immediately responded to a request for comment.

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