An appeals judge appointed by President Donald Trump issued a free speech ruling that threatens the new White House media ban.
According to a Tuesday article by Politico, Judge Neomi Rao wrote in the majority opinion for a three-judge D.C. Circuit Court of Appeals panel that the Capitol’s East Steps are a “nonpublic forum,” the same legal category that covers most of the White House grounds, including its press facilities.
Rao wrote that the government can restrict access to such spaces, but those limits have to be “viewpoint neutral,” follow “objective, workable standards,” and cannot hand officials “unbridled discretion over a forum’s use,” per Politico.
“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,” Rao wrote. She was joined by George H.W. Bush appointee Judge Karen Henderson.
The decision came on the eve of a hearing on restoring White House access for Politico, CNN and MS NOW. Trump has openly cast his ban on those outlets as retaliation for coverage he labels “fake news,” Politico noted.
Any appeal in the media ban case would go to the D.C. Circuit. Trump has already said he expects to file an appeal on the assumption that he will lose in district court, Politico noted.
Tuesday’s ruling grew out of a lawsuit from Patrick Mahoney, a clergyman who wanted to hold prayer vigils and demonstrations on the East Steps in the months after the January 6 attack on the Capitol, according to Politico.
Mahoney’s permit was denied in part under Capitol Police rules that bar demonstrations on the steps unless a member of Congress sponsors them. The panel agreed that the steps can be restricted because lawmakers use them to come and go. However, it found that the sponsorship carve-out created an arbitrary system.
“Because the protection of unpopular speech and advocacy is central to the First Amendment, we cannot leave it to the selective enforcement of members,” Rao wrote.
The lone dissent in Tuesday’s decision came from Judge Judith Rogers, a Clinton appointee, who wrote that she would have declared the lower part of the Capitol steps a public forum open to protest, per Politico.
Politico added that the White House did not immediately respond to its request for comment.
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