706 F.Supp.3d 63
D.D.C.2023Background
- The White House issues "hard passes" (permanent credentials) and day passes (temporary) for access to the White House Press Area; hard passes allow immediate, unescorted entry and are more convenient for on-the-spot reporting.
- On May 5, 2023 the White House announced a new Hard Pass Policy: existing hard passes would expire July 31 unless holders met six criteria, including accreditation by the Supreme Court or a congressional press gallery (Rule No. 5).
- Simon Ateba, Today News Africa White House correspondent, lost his hard pass under the new policy because he lacked a congressional or Supreme Court credential; he continues to access the Press Area using day passes and applied to the Senate Daily Press Gallery (still pending).
- Ateba sued alleging (1) the Hard Pass Policy facially violates the First Amendment by conferring unbridled discretion on gallery committees, (2) the White House engaged in viewpoint discrimination against him, and (3) the Secret Service acted arbitrarily and capriciously in deactivating his pass (APA).
- The court (Dec. 7, 2023) held that Ateba has a cognizable First Amendment injury from burdened access, but granted summary judgment to defendants on the facial (unbridled discretion/reasonableness) and APA claims and dismissed the viewpoint-discrimination claim without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment injury (loss of hard pass vs. day-pass access) | Loss of hard pass burdens newsgathering/speaking (hard pass is materially superior) | Day pass provides access to same forum; loss is mere inconvenience | Court: loss is an actionable First Amendment injury because the Press Area is a First Amendment forum and burdens on access can be reviewed |
| Facial challenge: Hard Pass Policy unreasonable / grants unbridled discretion to press galleries | Requiring congressional/Supreme Court credentials is standardless, susceptible to abuse, and not reasonably related to purpose | Credentialing by galleries is a reasonable, viewpoint-neutral heuristic to identify bona fide journalists and limits White House discretion | Court: Policy is reasonable and viewpoint neutral; gallery standards supply sufficient constraints—grant summary judgment to defendants |
| Viewpoint-discrimination claim | White House changed criteria to exclude Ateba in retaliation for his disruptive questions and focus on U.S.–Africa coverage | Policy is neutral; any exclusion targeted at disruptive conduct (not viewpoint) and applied broadly | Court: Complaint fails to plausibly allege viewpoint motivation; claim dismissed without prejudice (no discovery) |
| APA reviewability of Secret Service deactivation | Secret Service cancelled Ateba's pass without reasoned explanation; action arbitrary and capricious | Deactivation implemented at direction of White House Press Office (President’s discretionary authority); Secret Service acted ministerially and is thus not subject to APA review here | Court: Secret Service’s action is effectively carrying out a White House discretionary policy and is not reviewable under the APA; summary judgment for defendants |
Key Cases Cited
- Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) (White House press facilities opened to journalists cannot be denied arbitrarily; due-process and First Amendment protections for press access)
- Karem v. Trump, 960 F.3d 656 (D.C. Cir. 2020) (loss of White House access implicates First Amendment and related procedural protections)
- Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (1985) (limited/nonpublic forum rules: restrictions must be reasonable and viewpoint neutral)
- Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018) (nonpublic forum restriction invalid where standards are not objective or workable; unbridled discretion concern)
- City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (facial challenge to licensing regimes based on overly broad official discretion)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (licensing schemes with unbridled discretion are subject to strict scrutiny principles)
- Houchins v. KQED, Inc., 438 U.S. 1 (1978) (no special First Amendment right of access to government-controlled information or facilities beyond public access)
- Branzburg v. Hayes, 408 U.S. 665 (1972) (First Amendment does not grant reporters special privileges to obtain information)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (viewpoint discrimination doctrine; government may not regulate based on speaker’s ideology or perspective)
- American Freedom Defense Initiative v. Washington Metro. Area Transit Auth., 901 F.3d 356 (D.C. Cir. 2018) (applying Mansky-related unbridled-discretion principle to forum restrictions)