The White House informed The Associated Press that its access to the Oval Office and the Diplomatic Room would be restricted if AP did not start using the term “Gulf of America.” The Trump administration’s actions are Constitutionally wrong.
This lesson is for you, whether you want to call it the Gulf of America, the Gulf of Mexico, or The Gulf of Mar del Norte. The Constitution is a neutral principle that transcends politics. And the Constitution restricts the government’s power to take punitive action against the media based on a media outlet’s editorial decisions. This applies whether that media outlet is “right leaning” or “left leaning.”
I handled a similar case in Maricopa County, Arizona, where the government mistreated a well-known Conservative news outlet, The Gateway Pundit.
During the 2022 midterm elections, Maricopa County officials found themselves dogged by a Gateway Pundit and its reporter, Jordan Conradson. Conradson was often the only reporter asking hard questions, refusing to accept the government narrative, and he engaged in aggressive and probing reporting. Other media outlets simply accepted the government’s positions at face value. Conradson had his theories and a narrative about the election and about Maricopa County officials’ conduct, including Maricopa County Recorder Stephen Richer.
From Richer and Maricopa’s perspective, Conradson was promoting a false narrative, and not “reporting the truth.” They considered him to be an inconvenience, so they decided it was time to institute a requirement for a press pass to enter County facilities. When Conradson sought such a press pass, officials denied him because, per the county officials’ opinions, he was “not a reputable journalist” and “reported false information.”
Conradson and The Gateway Pundit sued.[1] After an all-day hearing,[2] Federal Judge Tuchi shockingly held that the government was well within its rights to do this. His order[3] was conveniently issued on late Wednesday, before Thanksgiving. The Gateway Pundit filed an emergency appeal to the Ninth Circuit,[4] arguing that Tuchi’s decision lacked any tether as to how the Constitution operated, and that the lower court had given the government a license to censor critical reporting.
The County argued that they were barring Conradson and The Gateway Pundit because, according to them, they did not report “the truth.” The Ninth Circuit Court of Appeals immediately slapped down this obviously unconstitutional order, holding that “Permitting ‘truth’ to be determined by the [government] violates our foundational notions of a free press.”[5] It made it clear, relying on established precedent that content-based criteria for press access is prohibited under the First Amendment. (Op. at 11) “A free press is undermined if the access of certain reporters to facts relating to the public’s business is limited merely because they advocate a particular viewpoint. This is a dangerous and self-defeating doctrine.”
This here is the same situation.
If Trump has an adversarial relationship with the AP and wants to suggest that we should not trust it, he can do that. However, Press Secretary Leavitt openly confessed to an affront to the Constitution when she said “if [the Trump Administration] feel[s] that there are lies being pushed by outlets in this room, we are going to hold those lies accountable, and it is a fact that the body of water off the coast of Louisiana is called the Gulf of America.”
Is the Associated Press “telling the truth?” Whether to trust the AP or not is a matter for the marketplace of ideas to determine, not the government. And the AP has a right to refuse to accept Trump’s re-naming of the Gulf. There are still many people, including myself, who refuse to call the Las Vegas Airport the “Harry Reid Airport.” They still do, and will forever, call it “McCarran.” Fort Bragg became “Fort Liberty,” and many swore they would call it Bragg forever. Now it is Bragg again. The federal government can call it “The Gulf of America,” and you can resist that out of habit or you can resist that because you disagree with it. The government may not prescribe what shall be orthodox in politics, nationalism, religion, or any other matter, including geography.[6] Is the AP wrong? Everyone can have an opinion on that. But the government may not restrict press access on the basis of what it thinks about the press being truthful. The government is perhaps the worst possible arbiter of truth. The public would be blindfolded if the government got to choose their own investigators.
The staff of The Miami Herald won a Pulitzer in 1999 for a series of articles exposing election fraud. That series of articles is replete with government wrongdoers contradicting the accusations, claiming they are telling the truth. The Herald declined to take the government’s word for it, and its persistent reporting led to the Miami mayoral election being overturned. How convenient it would have been for Mayor Suarez to have been able to simply impede the reporters by calling them “inaccurate” reporters.
In 1994, the Providence Journal-Bulletin was honored for reporting on corruption in the Rhode Island court system. The government position was that the Chief Justice was “guilty of no intentional wrongdoing.”[7] Why should the Providence Journal-Bulletin have taken the government’s word for it? It did not, and it later proved that the government version of “the truth” was a lie.
Consider the “kids for cash” scandal, in which Pennsylvania judges accepted kickbacks for harsh sentences to for-profit detention centers. In that case, the government’s statement of what is the “truth” was only contradicted by journalists who refused to uncritically take the government’s position as being immune from challenge.[8]
The Trump administration has tried to draw a distinction that this issue with the AP is about access to the Oval Office, and there is no First Amendment violation because the AP can print whatever it wants. Does this make a difference? Probably not.
Press Secretary Leavitt stated that “nobody has the right to go into the Oval Office and ask the President of the United States questions.” She may be correct that access to the Oval Office is a privilege, but that does not give the government the power to take retaliatory action against a free press, nor does the government have the power to discriminate against a publication due to what or how they choose to report. Once the government started granting access, it created a limited public forum that it can still control, but not on the basis of viewpoint.
Once the Trump Administration opened the Oval Office and Diplomatic Room to participation by some of the media, the First Amendment requires that access be given to all viewpoints. It may use other criteria to limit access, but not editorial decisions.
The press is supposed to be a watchdog on the government. The government does not get to walk through the pound, picking docile watchdogs. Those watchdogs may snarl and bark. They may be uncontrollable. When they are, they do the greatest service to the public. But if the government expects its watchdog to simply lay its head in the government’s lap, the government greatly exceeds the expectations of the First Amendment.
This act is an affront to the First Amendment, and Conservatives/MAGA should align with even those they may politically oppose, today. Trump will not be in power forever. If this First Amendment violation goes uncured, the damage to the First Amendment will outlast his administration.
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[1] https://randazza.com/lawsuits/tgp-v-maricopa/
[2] https://randazza.com/wp-content/uploads/Gateway-TRO-Transcript.pdf
[3] https://randazza.com/wp-content/uploads/Gateway-Order-re-TRO-Motion.pdf
[4] https://randazza.com/wp-content/uploads/Gateway-Injunction-Motion.pdf
[5] https://randazza.com/wp-content/uploads/Gateway-Pundit-CA9-Order.pdf
[6] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
[7] “Top Rhode Island Justice Quits Amid Accusations,” THE NEW YORK TIMES (Oct. 9, 1993).
[8] Ian Urbina, “Despite Red Flags About Judges, a Kickback Scheme Flourished,” New York Times (Mar. 27, 2009); see also United States v. Ciavarella, 716 F.3d 705, 713 (3d Cir. 2013)
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View the TGP v. Maricopa case, including all briefing, HERE.
