Simon Ateba v. Karoline Leavitt, 133 F.4th 114

Simon Ateba, a journalist for Today News Africa, challenged the White House's policy requiring journalists to have a "hard pass" for preferred access, which could only be obtained with accreditation from congressional or Supreme Court press galleries.
The new White House Hard Pass Policy implemented in 2023 required journalists to be accredited by external press galleries, a practice with historical precedent except for two years in the past forty years.
Ateba applied for Senate Daily Press Gallery membership to get a hard pass, but his application remained pending, so he accessed the Press Area using more burdensome day passes instead.
Ateba argued the policy violated the First Amendment by delegating unbridled discretion to outside bodies (e.g., the Senate Daily Press Gallery) and for lacking deadlines for processing applications.
The district court found the policy was reasonable and viewpoint-neutral, rejecting the First Amendment facial challenge, and Ateba appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Hard Pass Policy violates the First Amendment in a facial challenge	The policy imposes burdens on press access and delegates unbridled discretion to press galleries without deadlines	Hard Pass Policy is reasonable, viewpoint-neutral, and consistent with prior practice; plaintiffs retain access via day passes	Policy is constitutional: reasonable and viewpoint-neutral in a nonpublic forum
Whether requiring external accreditation constitutes unreasonable or arbitrary delegation	Senate Daily Press Gallery wields unchecked, standardless power via the “of repute” standard	Accreditation standards are guided by concrete, objective rules; not arbitrary or unconstrained	Gallery’s rules provide standards, so no unbridled discretion; delegation is reasonable
Whether the lack of deadlines for credential decisions renders the scheme unconstitutional	Unlimited processing times can indefinitely burden access, amounting to censorship	No constitutional requirement for processing deadlines in content-neutral, nonpublic forum regulation	No deadline required; no unconstitutional burden since day pass access remains available
Whether the policy constitutes viewpoint discrimination	Hard Pass Policy lacks safeguards against viewpoint discrimination, creating risk	Policy is facially neutral and does not discriminate based on content or viewpoint	Policy is viewpoint-neutral under the First Amendment

Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) (explained due process requirements for denying White House press credentials)
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (set standards for speech restrictions in nonpublic forums)
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (distinguished public, limited public, and nonpublic forums)
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (unbridled discretion doctrine in licensing for public speech)
Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992) (standardless discretion to set permit fees violates First Amendment)
Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) (regulations must guide administrators’ discretion in granting speech-related permits)
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (prohibited viewpoint discrimination in limited public forums)
Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666 (1998) (reasonable exclusion of speakers from nonpublic forum affirmed)
Karem v. Trump, 960 F.3d 656 (D.C. Cir. 2020) (White House must employ due process when suspending press access)