A win for the free press is a win for the First Amendment, which means a win for all of us. Voting is the right that unlocks all other rights. The free press is the guarantee of those rights, including the right to vote. There is little that is more important. – Joyce Vance, April 9, 2025
Get the legal knowledge & analysis you need to be an advocate for democracy, along with a dose of savvy optimism from Joyce Vance. Vance is a distinguished professor at the University of Alabama School of Law, focusing on criminal law and democratic institutions. She is also a legal analyst for NBC and MSNBC and served as the U.S. attorney for the Northern District of Alabama from 2009 to 2017.
You can be forgiven if, in the crush of lawsuits involving illegal deportations and the firing of hard working, high performing federal employees, you’ve forgotten that The Associated Press (AP) sued Donald Trump after he excluded them from the Oval Office and White House pool events because of their refusal to redesignate the Gulf of Mexico as the Gulf of America in their reporting. On February 11, 2025, they reported that they “were informed by the White House that if AP did not align its editorial standards with President Donald Trump’s executive order renaming the Gulf of Mexico as the Gulf of America, AP would be barred from accessing an event in the Oval Office.” After that, they were systematically excluded, and their lawsuit, Associated Press v. Budowich, followed.
The lawsuit alleges that the administration is violating the Due Process Clause of the Fifth Amendment by barring the AP from spaces it has used “for over a century” without any prior notice and no opportunity to challenge the decision before it took effect or since then. It also argues that the administration is violating the First Amendment because it is trying to compel the AP’s speech and retaliating against the AP for using its right to free speech. The AP asked the court for both a declaratory judgment calling the decision to deny it access to the president unconstitutional and an order requiring the White House to rescind its new policy.
Today, the AP won one of the first steps in the lawsuit in court. Federal District Judge Trevor McFadden granted the preliminary injunction they asked for, which will prevent Trump from excluding them from reporting opportunities while the litigation works its way through the courts. The Judge’s order is well-reasoned and relied only on a First Amendment argument. He seems to be something of both a scholar and a humorist, writing, following a considerable exposition of the history and tradition of the free press, “All of this to say: The AP’s predicament comes with considerable prologue. See William Faulkner, Requiem for a Nun 73 (1951) (‘The past is never dead. It’s not even past.’)” Unless five Justices on the Supreme Court believe all of our news should come from Fox and OAN, which is a tough sell even for this Court, it should survive.
The Judge wrote: “This injunction does not limit the various permissible reasons the Government may have for excluding journalists from limited-access events. It does not mandate that all eligible journalists, or indeed any journalists at all, be given access to the President or nonpublic government spaces. It does not prohibit government officials from freely choosing which journalists to sit down with for interviews or which ones’ questions they answer. And it certainly does not prevent senior officials from publicly expressing their own views. No, the Court simply holds that under the First Amendment, if the Government opens its doors to some journalists—be it to the Oval Office, the East Room, or elsewhere—it cannot then shut those doors to other journalists because of their viewpoints.”
With those words, the Judge, who was appointed by Donald Trump during his first administration, underlined the principle of a free press that animated the country’s founding. Judge McFadden has been a member of the Federalist Society for more than 20 years and has issued rulings favorable to the Trump administration, like one prohibiting the District of Columbia from vaccinating minors for COVID-19 without parental permission. In other words, it’s going to be difficult to portray him as a deep state Democratic judge, even for an administration that has ceaselessly criticized federal judges for being unelected—even though that’s how the Constitution works—and making decisions that affect the whole country, which is how our rule of law system works.
This notion of “viewpoint discrimination” as violating the First Amendment is well established in the law. In 1943, Justice Robert Jackson wrote, that “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
“The press and all people in the United States have the right to choose their own words and not be retaliated against by the government,” the AP said in its lawsuit. You can read their complaint here.
The free press is essential to democracy. In 1786, Thomas Jefferson wrote, “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” Donald Trump knows that too, hence the attack, an almost trivial one, perhaps designed to let him walk away without much damage if he loses. It would be a tragedy for the country if the whims of a childish wannabe dictator were permitted to prevail.
A win for the free press is a win for the First Amendment, which means a win for all of us. Voting is the right that unlocks all other rights. The free press is the guarantee of those rights, including the right to vote. There is little that is more important.
This case is still far from over. This evening, the Judge temporarily stayed his order to give the Trump administration the opportunity to appeal. There is a long path ahead.
Although there are a lot of bright shiny things to chase every day with Donald Trump (something that is a feature, not a bug with this administration, as it was during his first one), this case and the principle of a free press that it stands for has to remain among our North Stars. Attacks on the press, whether of the sort that lead publishers to bend the knee in advance or ones like this that exclude news outlets that refuse to bend the knee, are an attack on democracy itself.
Citing to an opinion written by Justice Clarence Thomas in 1991, Judge McFadden found that the damage being done by the Trump administration is irreparable: “‘The loss of First Amendment freedoms, for even minimal periods of time,’ constitutes irreparable harm when the plaintiff demonstrates that its ‘First Amendment interests are either threatened or in fact being impaired at the time relief is sought.’” He concludes his opinion by chastising the government because it, “repeatedly characterizes the AP’s request as a demand for ‘extra special access.’ But that is not what the AP is asking for, and it is not what the Court orders. All the AP wants, and all it gets, is a level playing field. In framing things otherwise, the Government fails to fully engage with forum analysis and retaliation caselaw. Rather than grappling with the implication of these doctrines, the Government tries to sidestep them. Defendants may pursue their favored litigation tactics, but the Court must address the merits of the relief requested.” (citations omitted) It was a resounding win for The Associated Press.
We’re in this together,
Joyce