Undaunted: The Associated Press

Stand up to bullies, and you just might win

Unlike Columbia University, unlike a pack of big law firms (e.g. Paul Weiss, Skadden Arps), unlike Washington Post owner Jeff Bezos, unlike ABC News, and unlike virtually every House and Senate Republican, the Associated Press (AP) refused to capitulate in the face of authoritarian bullying. Rather than accept its “punishment”—exclusion from key venues at the White House and daily access to Donald Trump, simply because it had the galling temerity to call the Gulf of Mexico…“the Gulf of Mexico”—it took the Trump censoring regime to federal court. This week, it won at the district court level.

Explaining the AP’s position, Executive Editor Julie Pace wrote to the White House chief of staff: “The actions taken by the White House were plainly intended to punish The A.P. for the content of its speech.” Pace continued:

“It is among the most basic tenets of the First Amendment that the government cannot retaliate against the public or the press for what they say. This is viewpoint discrimination based on a news organization’s editorial choices and a clear violation of the First Amendment.”

Sadly, the odiously docile White House Press Correspondents’ Association continued business as normal. (It similarly accepted the White House’s unprecedented decision to select members of the press, thereby stocking the pool with toadies and propagandist reporters with close relationships to the president.) Maybe the organization should be renamed the Worthless Press Correspondents’ Association.

But not the AP. It took up the fight at great financial risk. As the judge who handed down the favorable decision explained (citations removed):

To state the obvious, if the AP’s wire reporters are not in the room when news happens, they can hardly be the first to break the news. … [R]eporting through second-hand sources simply does not allow for the “same level of completeness” in their reporting as if they had “been there in person.”

They cannot look around the room and use all five senses to craft a unique message for publication. And, as Miller pointed out, reporters “don’t know what [they’re] not there to see.” Finally, and obviously, they cannot ask questions from outside a closed door.

Those questions, if the President chose to answer, could lead to incisive and cutting-edge reporting that the AP cannot reproduce by watching from afar. This disadvantage has poisoned the AP’s business model. As its ability to rapidly supply new photographs and breaking news has dwindled, its customers have expressed concerns and turned to other sources for their needs. These concerns also led an advertiser to cancel a $150,000 deal. The facts reflect the precarious realities of life in the fast-paced world of journalism: A delay in capturing photos and details of breaking news can be catastrophic.

Imagine if the toniest law firms, elite universities, and Republican politicians were as willing to risk financial harm to defend principle against Trump’s attack! Plainly, they were not willing to risk a single client, a single dollar, or a single primary challenge to follow their professional oaths and stand up for democracy. Fortunately for the cause of democracy, the AP endured severe financial pain. “The AP has been economically hemorrhaging for the last two months, and its condition will only worsen as its customers flee to other news services absent injunctive relief.”

The AP sued and came prepared with a raft of evidence, historical material, and legal precedent in support of its right to have equal access to report on the lawless White House occupants.

Judge Trevor N. McFadden, a Trump appointee, delivered a 41-page scholarly opinion reaming the president and his lackeys. McFadden began:

“[T]he 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. The Constitution requires no less.”

Reviewing the series of blatantly retaliatory utterances from Trump and his aides, McFadden readily concluded, “The AP claims, and the Court now finds, that the Government has singled out the AP because of its refusal to update the Gulf’s name in its Stylebook, an influential writing and editing guide.”

McFadden noted, “Indeed, the Government has been brazen about this. Several high-ranking officials have repeatedly said that they are restricting the AP’s access precisely because of the organization’s viewpoint.” The White House rarely conceals its illegal motives these days; the whole point is to publicize its vindictiveness. In fact,

“At an evidentiary hearing, the AP’s witnesses made clear that its text reporters have been systematically and almost completely excluded from events open to the broader White House press corps since February 13, while its photographers have suffered curtailed access,” McFadden found. “The Government declined to offer witnesses in rebuttal.”

In this and other legal disputes, the government’s lawyers rely on obfuscation. “All the AP wants, and all it gets, is a level playing field,” McFadden explained, while the White House lawyers insist on “framing things otherwise” and trying to “sidestep” the real issues. McFadden tersely scolded the government:

“Defendants may pursue their favored litigation tactics, but the Court must address the merits of the relief requested.”

The decision flowed from uncontested facts. “[T]he AP presented evidence that the Government has discriminated against it based on its viewpoint, a claim the Government all but concedes,” McFadden held. “The AP is thus likely to succeed on its claim that its exclusion from eligibility to access the Oval Office violates its First Amendment rights.” McFadden reached the same conclusion regarding access to other locations (e.g., the East Room).

Three lessons from this confrontation should not be lost on us:

1) Democracy does not defend itself;

2) An attack on one person/entity or one tactic never stops there;

3) If you stand up to bullies, who often are unprepared or unqualified to defend their position, your chances of winning are high.

The defense of democracy requires courage and selflessness. The A.P. was stalwart, unafraid, and undaunted. This week, we salute the courageous wire service, its employees, and its lawyers.