Here's an excerpt from the opposition to plaintiffs' temporary restraining order motion (for my view on why the plaintiffs should prevail as to access to the main press briefing room, see this post):
While the D.C. Circuit has held that some areas of the White House grounds constitute a nonpublic forum, Sherrill v. Knight (D.C. Cir. 1977), that decision is wrong and should be overruled. But even under Sherrill, the President's actions must be sustained because the President has "compelling interest[s]" in enforcing minimum standards for bona fide journalists and safeguarding national security information…. [T]he President's actions were not retaliatory because the Government would have taken the same action anyway, notwithstanding Plaintiffs' speech criticizing the President—indeed, the President has not revoked access to other outlets that have equally criticized the President….
Sherrill v. Knight … held that because "White House press facilities hav[e] been made publicly available as a source of information for newsmen, the protection afforded newsgathering under the first amendment guarantee of freedom of the press, requires that this access not be denied arbitrarily or for less than compelling reasons." While Defendants acknowledge the D.C. Circuit's decision in Sherrill, that case was wrongly decided, and Defendants expressly reserve their right to argue so on appeal.
Access to the White House is a privilege, not a right. In Sherill, the D.C. Circuit emphasized that "[t]hese press facilities [were] perceived as being open to all bona fide Washington-based journalists[.]" The reality is much better described by the D.C. Circuit's more recent decision in AP v. Budowich (D.C. Cir. 2025). There, the court acknowledged that there are more journalists who wish to interview the President than he can accommodate; "[i]n deciding which journalists to speak with, the President may of course take into account their viewpoint." Accord Baltimore Sun Co. v. Ehrlich (4th Cir. 2006) (upholding State Governor's press directive that "no one in the Executive Department or Agencies" should speak with two named reporters because the "Governor's Press Office feels that currently both are failing to objectively report on any issue dealing with" that administration). As a result, the court concluded that at least for certain spaces, "the White House may consider journalists' viewpoints when deciding whether to grant access."
The same logic and standard should apply to access to White House grounds more generally. "Opening" the "White House" to some journalists should not "transform these spaces into nonpublic fora to which access must be granted on a viewpoint neutral basis." Indeed, there are currently a finite number of hard passes, and yet the White House briefing room and West Wing facilities can accommodate only so many reporters. Under the AP decision, this counsels against the conclusion that the White House is a nonpublic forum. See AP ("These spaces should not be classified as nonpublic fora because access to them is tightly controlled and highly selective…. When access to government property is very limited, considerations of viewpoint may be permissible.").
In short, there is no principled way of easily distinguishing between rooms that are a nonpublic forum and those that are no forum at all—particularly where the White House is not obligated to respond to any questions by reporters in the first place. See id. ("The AP's reporting on presidential events through electronic dissemination of news to editors or the public outside the White House is the only communicative activity at issue. But this activity could occur anywhere and therefore lacks the essential connection to the government space required to create even a nonpublic forum."). The reasoning of AP should properly control as to all parts of the White House complex.
