United States Court of Appeals
                             FOR THE DISTRICT OF COLUMBIA CIRCUIT
                                      ____________
No. 25-5109                                                 September Term, 2024
                                                                        1:25-cv-00532-TNM
                                                        Filed On: June 6, 2025
Associated Press,

              Appellee

       v.

Taylor Budowich, in his official capacity as
White House Deputy Chief of Staff, et al.,

              Appellants


       BEFORE:       Pillard*, Katsas, and Rao, Circuit Judges

ORDER

      Upon consideration of the emergency motion for a stay pending appeal and an
immediate administrative stay, the opposition thereto and notice of errata, and the reply,
it is

        ORDERED that the motion for a stay pending appeal be granted in part. The
district court’s preliminary injunction entered on April 8, 2025, is stayed pending further
order of this court except to the extent that the preliminary injunction is applicable to the
East Room. A concurring statement of Judge Rao, joined by Judge Katsas, and a
dissenting statement of Judge Pillard are attached.

                                        Per Curiam

                                                          FOR THE COURT:
                                                          Clifton B. Cislak, Clerk

                                                  BY:     /s/
                                                          Selena R. Gancasz
                                                          Deputy Clerk


* Judge Pillard would deny the motion for a stay pending appeal.
     RAO, Circuit Judge, joined by KATSAS, Circuit Judge: The
Associated Press wants to be in the room where it happens. But
in February 2025, White House officials excluded the AP from
the Oval Office and other restricted spaces. Officials
announced that access was denied because the AP continued to
use the name Gulf of Mexico in its Stylebook, rather than the
President’s preferred Gulf of America. The AP sued, alleging
that its exclusion violated the First Amendment. The district
court held the AP was likely to succeed on its constitutional
claims, and it issued a preliminary injunction prohibiting White
House officials from denying, on the basis of viewpoint, access
to press events held in the Oval Office, on Air Force One, and
at the President’s home in Mar-a-Lago.1

     We grant in part the government’s motion for a stay
pending appeal. The White House is likely to succeed on the
merits because these restricted presidential spaces are not First
Amendment fora opened for private speech and discussion.
The White House therefore retains discretion to determine,
including on the basis of viewpoint, which journalists will be
admitted. Moreover, without a stay, the government will suffer
irreparable harm because the injunction impinges on the
President’s independence and control over his private
workspaces.

                                 I.

                                A.

    Reporters and photographers have long been permitted
access to the White House complex to cover the President and
his administration. The White House manages access by

1
  We use “Oval Office” to refer collectively to the Oval Office, Air
Force One, Mar-a-Lago, and similar restricted presidential
workspaces. We separately consider access to the East Room, a much
larger space that can accommodate more members of the press.
                                2
requiring journalists to obtain a press credential called a hard
pass. More than one thousand journalists hold hard passes,
through which they may access spaces such as the James S.
Brady Briefing Room, where the White House Press Secretary
delivers regular briefings. Hard pass holders may also sign up
via a reservation system to attend larger events hosted in the
East Room, which is often used for meetings with foreign
leaders, executive order signings, and press conferences.
Because the White House has opened these press facilities “to
all bona fide Washington-based journalists,” hard passes may
not be denied arbitrarily or based on the content of a journalist’s
speech. Sherrill v. Knight, 

, 129–30 (D.C. Cir.
1977).

     A small subset (around one percent) of hard pass holders
is sometimes invited into even more restricted White House
spaces, such as the Oval Office and the Cabinet Room. This
group of privileged journalists, referred to as the “press pool,”
has historically been selected by the White House
Correspondents’ Association, a private organization of which
the AP is a founding member. Since its inception, the press
pool has had a relatively stable, although not fixed,
membership. Journalists selected to be part of the press pool
may travel with the President aboard Air Force One and attend
small press events at the President’s home in Mar-a-Lago,
usually to observe presidential speeches and events. For many
years, the Correspondents’ Association offered the AP a
standing invitation to send one reporter and one photographer
to press pool events.

     On February 11, 2025, White House Press Secretary
Karoline Leavitt informed the AP that it would not be permitted
in the Oval Office or press pool unless it revised its Stylebook
to refer to the Gulf of America, which President Trump had
recently renamed from the Gulf of Mexico. The President and
                               3
other senior White House officials publicly stated that the
reason for the AP’s exclusion was its continued use of the name
Gulf of Mexico. The AP was similarly excluded from events in
the East Room, despite signing up in advance through the
reservation process. On February 25, the White House
announced it would select journalists for participation in press
pool events, instead of deferring to the selection made by the
Correspondents’ Association.

                               B.

     The AP brought suit, alleging that the White House
violated the First Amendment by engaging in viewpoint
discrimination and by retaliating against the AP for its
protected expression. It sought declaratory relief and a
preliminary injunction directing the White House to rescind its
new policies targeting the AP.

     The district court held that the AP was likely to succeed on
the merits of both First Amendment claims. As to viewpoint
discrimination, the court determined that the Oval Office and
other similar spaces are nonpublic fora and so the White House
may not restrict reporters’ access based on viewpoint. The
President and other White House officials candidly stated that
the AP’s exclusion turned on its viewpoint, namely its
continued use of the name Gulf of Mexico in its Stylebook. The
district court concluded that such viewpoint discrimination in
a nonpublic forum violates the First Amendment. The district
court also held that the White House engaged in unlawful
retaliation by excluding the AP from press pool events because
of its editorial decision to use Gulf of Mexico. As to the other
preliminary injunction factors, the court held the AP’s loss of
First Amendment freedoms and reporting opportunities
constitutes irreparable harm, and enforcement of an
unconstitutional policy is contrary to the public interest.
                                 4
     The district court granted the AP’s motion for a
preliminary injunction and required the White House to
“rescind the denial of the AP’s access to the Oval Office, Air
Force One, and other limited spaces based on the AP’s
viewpoint when such spaces are made open to other members
of the White House press pool,” and to “rescind [its] viewpoint-
based denial of the AP’s access to events open to all
credentialed White House journalists.” Tailoring the injunction
to the likely constitutional harm, the court recognized that the
White House retained discretion to exclude the AP for
“permissible reasons,” to deny all journalists access to the
President in restricted spaces, and to select particular
journalists for interviews.2

     The White House moved for emergency relief in this court.
It seeks a stay of the district court’s injunction pending appeal.

                                 II.

    As a threshold matter, we reject the White House’s
contention that this case implicates the political question
doctrine. The political question doctrine represents “a narrow
exception” to the general rule that “the Judiciary has a
responsibility to decide cases properly before it, even those it
would gladly avoid.” Zivotofsky ex rel. Zivotofsky v. Clinton,

2
  On April 14, 2025, while the injunction was in effect, the AP was
denied access to the Oval Office. The next day, the White House
issued an updated policy abolishing the wire services seat from the
press pool. The AP immediately filed a motion arguing the White
House violated the terms of the injunction and requesting
enforcement. The district court denied that motion because it agreed
the White House’s new policy was facially neutral. Moreover, the
court credited the White House’s declaration that it had not excluded
the AP from press events based on viewpoint while the district
court’s injunction was in place.
                               5

, 194–95 (2012) (cleaned up). A case may present
a nonjusticiable political question if one of six factors
identified by the Supreme Court is present. See Baker v. Carr,

 (1962) (setting out the modern framework
for the political question doctrine); El-Shifa Pharm. Indus. Co.
v. United States, 

 (D.C. Cir. 2010)
(explaining the six factors from Baker are disjunctive). As
relevant here, the White House maintains the political question
doctrine bars judicial review because there are no “judicially
discoverable and manageable standards” governing the
selection of journalists for small group press events with the
President and because any resolution of the AP’s claims would
necessarily express a lack of respect for a coordinate branch of
government. Baker, 

. We disagree.

     The AP’s constitutional challenge lies well within the
judicial province. The AP alleges its First Amendment rights
have been violated because the White House engaged in
viewpoint discrimination and retaliation on account of the AP’s
speech. The freedoms of speech and press are vital to our
constitutional democracy. See Stromberg v. California, 

 (1931) (“The maintenance of the opportunity for
free political discussion to the end that government may be
responsive to the will of the people ... is a fundamental
principle of our constitutional system.”). The prohibition on
viewpoint discrimination, when it applies, protects speakers
against invidious government action. See, e.g., Rosenberger v.
Rector and Visitors of University of Virginia, 

(1995) (“When the government targets not subject matter, but
particular views taken by speakers on a subject, the violation
of the First Amendment is all the more blatant.”). “[A]bove all
else, the First Amendment means that government has no
power to restrict expression because of its message, its ideas,
its subject matter, or its content.” Police Dep’t of Chicago v.
Mosley, 

, 95 (1972). The courts regularly adjudicate
                                6
claims that the government has violated the First Amendment’s
prohibition on viewpoint discrimination.

     The AP’s arguments that it has suffered viewpoint
discrimination and retaliation in violation of the First
Amendment “sound in familiar principles of constitutional
interpretation” and do “not turn on standards that defy judicial
application.” Zivotofsky, 

 (cleaned up). While
the constitutional questions presented arise in a political
context, they do not fall within the narrow category of political
questions that lie beyond the sphere of the federal courts.
Adjudicating the constitutional limits on Executive Branch
action does not, on its own, show disrespect to a coordinate
branch. See El-Shifa, 607 F.3d at 841–42. Due regard for the
Executive Branch as an independent and co-equal department
must be part of our analysis of the AP’s First Amendment
challenge, but it does not bar judicial review at the outset.

                               III.

     It is within our traditional equitable authority to “stay the
enforcement of a judgment pending the outcome of an appeal.”
Scripps-Howard Radio, Inc. v. FCC, 

, 9–10 & n.4
(1942) (citing All Writs Act, now codified at 

). In deciding whether to grant a stay pending appeal, we
consider four factors: “(1) whether the stay applicant has made
a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the
public interest lies.” Nken v. Holder, 

 (2009)
(cleaned up). While these factors guide our assessment, a stay
is an exercise of equitable discretion, and therefore “[t]he
propriety of its issue … depend[s] upon the circumstances of
                                7
the particular case.” Virginian Ry. Co. v. United States, 

, 672–73 (1926).

     The White House seeks a stay of the preliminary
injunction. A preliminary injunction is “an extraordinary
remedy” that “may only be awarded upon a clear showing that
the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.
Council, Inc., 

 (2008). Unlike a final judgment,
“a preliminary injunction is remarkable because it imposes a
constraint on the enjoined party’s actions” before a full
adjudication of the merits. Hanson v. District of Columbia, 

, 243 (D.C. Cir. 2024) (cleaned up). “[T]o grant a
preliminary injunction is normally to make a choice under
conditions of grave uncertainty.” Singh v. Berger, 

,
95 (D.C. Cir. 2022) (cleaned up). Our evaluation of the stay
factors is invariably shaped by the interim nature of the district
court’s relief. “In assessing the lower courts’ exercise of
equitable discretion, we bring to bear an equitable judgment of
our own.” Trump v. Int’l Refugee Assistance Project, 

 (2017).

                               IV.

     Because we are considering a stay pending appeal of a
preliminary injunction, the government can demonstrate
likelihood of success on the merits by showing that the district
court misapplied the Winter factors—the first of which is
whether the plaintiff has shown likelihood of success on the
merits. See NTEU v. Trump, No. 25-5157, 

,
at *1 & n.1 (D.C. Cir. May 16, 2025). Here, the AP is not likely
to succeed on its viewpoint discrimination and retaliation
claims, which weighs heavily in favor of granting the stay
pending appeal.
                                8
                               A.

     The district court held the Oval Office, Air Force One, and
similar restricted spaces are nonpublic fora when members of
the press pool are present, and therefore the AP’s exclusion on
the basis of viewpoint violates the First Amendment. We
conclude the spaces to which the AP seeks access are not any
type of forum. As such, the White House may consider
journalists’ viewpoints when deciding whether to grant access.

                               1.

     To determine the extent of any First Amendment
protection, we must first identify the relevant government
space or spaces to which the AP claims access. “The existence
of a right of access to public property and the standard by which
limitations upon such a right must be evaluated differ
depending on the character of the property at issue.” Perry
Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 

(1983). Forum analysis guides our assessment of whether and
to what extent the government may restrict speech on its
property. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

, 799–800 (1985). But we are mindful that courts
should not “extend[] the public forum doctrine in a mechanical
way to contexts that meaningfully differ from those in which
the doctrine has traditionally been applied.” Price v. Garland,

, 1068 (D.C. Cir. 2022) (cleaned up).

     The AP argues that it suffers harm through its viewpoint-
based exclusion from press pool events. The district court
identified the press pool as the relevant forum because the AP
has “not been admitted in any form or fashion to the press pool
since February 14” and therefore “seeks restored eligibility
for … press pool events.” Focusing on the press pool, however,
distracts from the actual fora relevant to our analysis. The press
pool is an historically privileged group of reporters that is at
                                   9
times given access to spaces like the Oval Office. Reporters
and photographers within the pool gather news and speak to the
public about what they have seen and heard, but the pool is a
not an “instrumentality used for communication” by the AP or
other journalists. Cornelius, 

. The press pool is
simply a mechanism for granting a select group of reporters
access to the most private spaces in the White House.3

     Although the AP emphasizes its storied place in the history
of the press pool, the pool is relevant only because it is often
granted access to spaces in which the President conducts
business. See 

 (“[I]n defining the forum we have
focused on the access sought by the speaker.”). If the press pool
were not allowed in the Oval Office, membership in the pool
would be irrelevant to the access that the AP seeks.

     The proper context for our First Amendment analysis is
therefore the restricted spaces to which the AP seeks access,
namely the Oval Office, Air Force One, Mar-a-Lago, and the
East Room, when they are opened to a small group of
journalists to observe presidential events.

                                   2.

      Courts apply forum analysis to determine the character of
government property and the extent to which it is open to
private speech. Government property may be one of “three
types of fora: the traditional public forum, the public forum
created by government designation, and the nonpublic forum.”

. Some government properties, however, are “not fora
at all.” Arkansas Educ. Television Comm’n v. Forbes, 

 The press pool is not, and has never been, a government benefit. Cf.
Pillard, J., dissenting, at 9, 21. Until recently, membership in the pool
was determined by a private organization, the Correspondents’
Association.
                                  10
666, 677 (1998); Walker v. Texas Div., Sons of Confederate
Veterans, Inc., 

, 216 (2015). The degree of First
Amendment protection turns on both the characterization of the
property and the type of activity occurring there.4 “[F]orum
analysis applies only to communicative activities, not to
activities that, even if generally protected by the First
Amendment, are not communicative.” Price, 45 F.4th at 1070.

     No one suggests the Oval Office is a traditional public
forum such as a park or sidewalk held in trust for expressive
activity. Nor is the Oval Office a designated public forum that
the government has made generally available to the public for
discourse and communication. The disagreement between the
parties is whether the spaces at issue are nonpublic fora or not
fora at all, and so we focus on this distinction.

     “A nonpublic forum is government property that is not by
tradition or designation a forum for public communication.” Id.
at 1068 (cleaned up). The government, “no less than a private
owner of property, has power to preserve the property under its
control for the use to which it is lawfully dedicated.” Greer v.
Spock, 

 (1976) (cleaned up). Government
property does not become a nonpublic forum unless and until
the government takes some affirmative step to open the space
for private communication. While the government need not
open up property “that is not by tradition or designation a
forum for public communication,” the government “creates a

4
  While viewpoint discrimination is often unconstitutional, we reject
the dissent’s primary argument that the White House’s viewpoint-
based exclusion of the AP is per se unconstitutional. See Pillard, J.,
dissenting, at 6–9. This blanket conclusion finds no support in our
First Amendment jurisprudence, which carefully assesses the type of
government property at issue and recognizes that some government
spaces are not fora at all and therefore are not subject to prohibitions
on viewpoint discrimination.
                                  11
nonpublic forum when it provides selective access for
individual speakers.” Ateba v. Leavitt, 

, 121–22
(D.C. Cir. 2025) (cleaned up). Until the government opens a
restricted space to private speech between private parties, such
a space is not a First Amendment forum at all.

     Our cases provide guideposts for applying forum analysis
to spaces in the White House. When the White House opens its
facilities to the press generally, as it does in the Brady Briefing
Room, it cannot exclude journalists based on viewpoint. In
Sherrill, we held that the “White House press facilities having
been made publicly available as a source of information for
newsmen, the protection afforded newsgathering under the
[F]irst [A]mendment guarantee of freedom of the press”
attached, requiring that “access not be denied arbitrarily or for
less than compelling reasons.” 

 (cleaned up).
We recently explained that “[a]lthough Sherrill predated
modern forum analysis, its description of the Press Area fits the
definition of a nonpublic First Amendment forum.” Ateba, 133
F.4th at 122–23. Thus, “access to the White House Press Area
can be restricted as long as the restrictions are viewpoint
neutral and reasonable.” Id. at 123 (cleaned up). Sherrill and
Ateba stand for the proposition that White House spaces
generally open to the press are nonpublic fora, and therefore
access cannot be restricted based on viewpoint.5

    On the other hand, we have never suggested that there are
any First Amendment restrictions on “the discretion of the
President to grant interviews or briefings with selected

5
 The White House has substantial discretion to control press access
based on considerations such as security or space limitations, and this
court has declined to micromanage or intrude on the White House’s
discretion to set such policies. See Sherrill, 

; Ateba,
133 F.4th at 122–23.
                                12
journalists.” Sherrill, 

. In deciding which
journalists to speak with, the President may of course take into
account their viewpoint. If President Trump sits down for an
interview with Laura Ingraham, he is not required to do the
same with Rachel Maddow. The First Amendment does not
control the President’s discretion in choosing with whom to
speak or to whom to provide personal access. It is a time
honored and entirely mundane aspect of our competitive and
free press that public officials “regularly subject all reporters to
some form of differential treatment based on whether they
approve of the reporters’ expression.” The Baltimore Sun Co.
v. Ehrlich, 

 (4th Cir. 2006).

     These uncontested principles provide the framework for
assessing the AP’s claim that the Oval Office and other
restricted spaces become nonpublic fora when the White House
selects a small group of journalists (such as the press pool) to
be present for observational newsgathering and reporting.

                                3.

     To properly characterize the Oval Office and like spaces,
we examine their history and the government’s “policy and
practice” with respect to allowing access. Cornelius, 

. We also consider whether “the tradition of … activity”
in these spaces demonstrates that they “have historically been
made available for speech activity.” Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 

 (1992); see also
Perry, 

 (evaluating whether the space has “by
long tradition … been devoted to assembly and debate”). The
design and function of the space is also relevant when
determining whether the government has created any type of
forum for private speech. United States v. Kokinda, 

, 727–30 (1990) (plurality opinion).
                              13
    The Oval Office is the President’s office, over which he
has absolute control and discretion to exclude the public or
members of the press. As the district court explained, the Oval
Office “is a highly controlled location … shrouded behind a
labyrinth of security protocols,” which “few members of the
public will ever” enter. The President uses the space for myriad
purposes, including speeches, signing ceremonies, and
meetings with senior officials or heads of state. When events in
the Oval Office are broadcast to the public, they feature the
President’s speech and expressive activity.

     It hardly needs to be said that the Oval Office, Air Force
One, or even the East Room are not places “traditionally open
to assembly and debate,” nor are they open to the public for
expressive activity. Cornelius, 

. The parties
agree the White House could, consistent with the First
Amendment, exclude press from these spaces entirely. Cf.
Zemel v. Rusk, 

 (1965) (explaining there is no
First Amendment right to enter the White House); Pell v.
Procunier, 

 (1974) (“It has generally been
held that the First Amendment does not guarantee the press a
constitutional right of special access to information not
available to the public generally.”) (cleaned up); Houchins v.
KQED, Inc., 

 (1978) (holding the press has no
First Amendment “right of access to all sources of information
within government control”).

    The AP’s primary contention, however, is that when the
Oval Office and similar spaces are opened to the press pool,
they become nonpublic fora and therefore the White House
may not withhold access on the basis of viewpoint. We
disagree.

    First, the press events to which the AP seeks access do not
involve the type of communicative activities that transform a
                               14
restricted government space into a nonpublic forum. “[F]orum
analysis applies only to communicative activities.” Price, 45
F.4th at 1070. In each of the Supreme Court’s forum analysis
cases, the activity triggering application of the doctrine
involved “assembly, the exchange of ideas to and among
citizens, the discussion of public issues, the dissemination of
information and opinion, and debate—all of which are
communicative activities.” Id. at 1069 (canvassing cases).
Where, as here, a small group of journalists is permitted to
attend events in restricted White House spaces like the Oval
Office, the primary activity is observational newsgathering.
The district court found that at so-called press pool events,
“journalists are relegated to watching events unfold” and very
often “have no interaction with the President or other officials.”
At these events, journalists do not expect to “have a substantive
conversation with officials.” Instead, journalists are present
“just to witness what is said and what the reaction is, and what
else is happening in the room.” The AP admits as much and
identifies the harms from exclusion as the loss of opportunities
to “gather and quickly disseminate news about the President.”
Newsgathering may enjoy some First Amendment protections
from government interference. See Branzburg v. Hayes, 

 (1972). But newsgathering is not itself a
communicative activity. When journalists are invited to
observe events in the Oval Office, they are gathering
information for their reporting, which is “a noncommunicative
step in the production of speech.” Price, 45 F.4th at 1068.

     Second, the communicative acts identified by the district
court cannot transform these restricted White House spaces
into nonpublic fora. The AP stressed that the “quick[]
disseminat[ion]” of presidential news is essential to its business
model as a global wire service. And the district court concluded
that journalists are in fact “speaking” from these limited-access
spaces because they transmit stories, observations, and
                                 15
photographs in real time.6 Without question, such reporting
constitutes speech and expressive activity. That speech,
however, has little if any nexus to the restricted spaces in which
it occurs such that the spaces become nonpublic fora.

     In every case in which the Court has concluded a
government property constitutes a traditional public forum,
designated forum, or even nonpublic forum, there exists a close
relationship between the forum and the protected speech. Since
Roman times, a forum has been emblematic of a space for
citizens to participate in public discussion and dialogue, to
exchange ideas, and to engage in political debate. In modern
doctrine, the “traditional public forum” is closely tethered to
this historical conception: It is a place which, “time out of
mind, [has] been used for purposes of assembly,
communicating thoughts between citizens, and discussing
public questions.” Perry, 

 (cleaned up). See also
Cornelius, 

 (“[A] principal purpose of
traditional public fora is the free exchange of ideas.”). In a
similar way, a designated public forum is a space the
government opens “for use by the public as a place for
expressive activity.” Perry, 

 (emphasis added).

6
  The district court relied heavily on a Seventh Circuit decision,
which concluded that an “invitation-only, limited-access press
event” hosted by the governor of Wisconsin was a nonpublic forum.
See John K. MacIver Inst. for Public Policy, Inc. v. Evers, 

, 610 & n.1 (7th Cir. 2021). In that case, however, while the
Governor argued that his press events were likely not a forum at all,
he acknowledged that nonpublic forum analysis “might apply” under
the circumstances. 

 at 610 n.1. Without explanation, the Seventh
Circuit held “the non-public forum analysis is the appropriate one”
and concluded that the Governor’s access policies were
constitutional even under this more demanding standard. The case is
therefore of limited relevance to the inquiry here, where the parties
dispute whether these spaces are fora at all.
                               16
So, for example, a university created a designated public forum
when it made its facilities available for student groups and
speakers to use for meetings, discussions, and other
communicative purposes. Widmar v. Vincent, 

,
267–73 (1981). In all of these cases, there is a clear nexus
between the forum and the protected speech.

     Even with respect to less conventional nonpublic fora, the
Supreme Court has carefully considered the connection
between the speech and the forum. In Cornelius, the plaintiffs
wanted to solicit donations (a form of protected speech)
through a charity drive brochure targeted at federal employees.
473 U.S. at 797–801. The Court concluded that the charity
drive with its government-distributed materials was a
nonpublic forum because “the nexus between solicitation and
the communication of information and advocacy of causes is
present in the [charity drive brochure] as in other contexts.” Id.
at 799 (emphasis added). The plaintiffs sought “access to a
particular means of communication,” namely, speaking to
government workers within the nonpublic forum of the charity
drive brochure. Id. at 801.

     These cases illustrate why AP’s communicative activities
here have no nexus to the Oval Office. When a small number
of press observe presidential events, they are not using the Oval
Office as the location or means of communication. And when
the White House opens events in the Oval Office to a select
group of journalists for observational newsgathering, the
journalists generally are not speaking with the President or
other officials, nor are they engaged in dialogue with each
other. 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
                                  17
lacks the essential connection to the government space required
to create even a nonpublic forum.

     We decline to adopt a rule that would turn any government
space in which smart phones or computers are allowed into a
nonpublic forum simply because individuals can communicate
with the outside world by blogging, posting comments and
pictures, or other otherwise disseminating messages in real
time. Smart phone ownership is ubiquitous. The mere
possibility of communicating through the internet while on
government property cannot transform every government
space into a forum protected by the First Amendment.7 Indeed,
we are not aware of any forum analysis case in which the
relevant expressive or communicative activity was directed
outside the forum. When the courts determine that government
property serves as a forum, the property is the essential situs
for the communicative activity.

     Third, these spaces should not be classified as nonpublic
fora because access to them is tightly controlled and highly
selective. Only about one percent of hard pass holders can fit
in spaces like the Oval Office. When access to government
property is very limited, considerations of viewpoint may be
permissible. Cf. Nat’l Endowment for the Arts v. Finley, 524

7
  In Price, we said in dicta that livestreaming may be a kind of
communicative activity, “albeit to people who are not necessarily
located in the forum in which the streaming is conducted.” 45 F.4th
at 1071 n.***. Livestreaming was not at issue in that case, but instead
used as an example to distinguish communicative activity from
noncommunicative steps in the creation of speech. Moreover,
although we stated in Price that the government could not restrict
filmmaking in national parks on the basis of viewpoint, see id. at
1071–72, the government generally had opened the parks to the
public for commercial uses, see id. at 1064–65. This aspect of Price
has no relevance to highly restricted spaces such as the Oval Office.
                                 

, 585–86 (1998) (upholding discretionary funding
scheme against First Amendment challenge and explaining that
with such a competitive grant program “absolute neutrality is
simply inconceivable”) (cleaned up).

     At oral argument, the AP agreed that the President or
White House could select a group of journalists each day to
observe events in these spaces and that such selection would
not be subject to forum analysis. The AP further conceded that
the President could abolish the existing press pool or establish
a new pool based on different criteria, including viewpoint.8
And the AP agrees the White House or President can
discriminate on the basis of viewpoint in granting exclusive
interviews, answering journalists’ questions, or selecting
journalists to attend an event about a particular subject matter.

    The AP’s concessions give away the game, because such
scenarios cannot be distinguished from so-called press pool
events, which are at bottom small press availabilities with the
President. Allowing a handful of selected journalists into the
President’s personal office cannot transform it into the Brady

8
  Both the AP and the district court at various points suggest that if
the White House maintains something like the press pool, it must
allow access on a viewpoint neutral basis. For the reasons already
explained, a group of journalists observing presidential events is not
a forum of any sort. Accordingly, the White House should not have
to choose between excluding all journalists and admitting journalists
under the restrictions of a nonpublic forum. By recognizing the
distinctions between different fora “we encourage the government to
open its property to some expressive activity in cases where, if faced
with an all-or-nothing choice, it might not open the property at all.”
Forbes, 

; see also Pleasant Grove City, Utah v.
Summum, 

 (2009) (“[W]here the application of
forum analysis would lead almost inexorably to closing of the forum,
it is obvious that forum analysis is out of place.”).
                               19
Briefing Room. The AP therefore must place great weight on
the historical press pool as the forum to which it seeks access.
But as we have already explained, the only potential fora here
are the restricted physical spaces, like the Oval Office, to which
AP seeks access, not the historical press pool.

    Finally, the fact that the President is communicating at
these events further distances this context from forum analysis.
When the government is speaking, forum analysis is usually
inapplicable because while the First Amendment “restricts
government regulation of private speech[,] it does not regulate
government speech.” Pleasant Grove City, Utah v. Summum,

 (2009); see also Walker, 576 U.S. at 215
(“Because the State is speaking on its own behalf, the First
Amendment strictures that attend the various types of
government-established forums do not apply.”).

    Although the White House disclaims primary reliance on
the government speech doctrine, the events to which the AP
seeks access by their nature involve presidential, i.e.
government, speech. The messages conveyed in the Oval
Office are government speech and opportunities for the
President’s administration to express its message. “When
government speech is involved, forum analysis does not apply
and the Government may favor or espouse a particular
viewpoint.” Bryant v. Gates, 

, 898–99 (D.C. Cir.
2008) (Kavanaugh, J., concurring). Forum analysis is also
inappropriate when government speech occurs within a limited
space, such as the Oval Office, the “essential function” of
which would be defeated by compelling the President to
support private speech on a viewpoint-neutral basis. Summum,

.
                                20
                              ***

     In sum, forum analysis is the wrong framework for
analyzing the First Amendment protections for journalists
observing presidential events in the Oval Office. Opening
restricted White House and presidential spaces to small groups
of journalists does not transform these spaces into nonpublic
fora to which access must be granted on a viewpoint neutral
basis. The AP’s claim to access is inconsistent with
longstanding First Amendment principles and would “plant the
seed of a constitutional case” in every decision the White
House makes about which reporters to include at presidential
events. Connick v. Myers, 

 (1983); Baltimore
Sun, 

. For the foregoing reasons, the White
House is likely to prevail against AP’s viewpoint
discrimination claim.

                                B.

     With respect to the AP’s First Amendment retaliation
claim, the district court concluded that the White House
unlawfully retaliated against the AP for its protected speech,
namely its decision to continue using Gulf of Mexico, rather
than Gulf of America, in its Stylebook. We disagree. Picking
and choosing journalists on the basis of viewpoint might be
actionable in some contexts, such as when the White House
opens its facilities “to all bona fide Washington-based
journalists,” but this is not one of those circumstances. Sherrill,

 (cleaned up). The White House’s decision to
exclude the AP from limited-access presidential events is not
the type of action that counts as materially adverse for purposes
of a retaliation claim.

    “[T]he First Amendment prohibits government officials
from subjecting individuals to retaliatory actions … for having
engaged in protected speech.” Houston Cmty. Coll. System v.
                                

 S. Ct. 1253, 1259 (2022) (cleaned up). The
government “may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests—especially,
his interest in freedom of speech.” Perry v. Sindermann, 

 (1972). The retaliation doctrine is rooted in the
principle that “[o]fficial reprisal for protected speech offends
the Constitution because it threatens to inhibit exercise of the
protected right.” Hartman v. Moore, 

 (2006)
(cleaned up).

     To prevail on its First Amendment retaliation claim, the
AP must demonstrate that (1) it engaged in protected
expression; (2) a government actor took a materially adverse
action against it; and (3) there is a causal relationship between
the protected expression and the adverse action. Aref v. Lynch,

 (D.C. Cir. 2016); Wilson, 142 S. Ct. at 1260–
61. The White House has narrowed our inquiry by frankly and
publicly stating that it excluded the AP because of its protected
speech, specifically, the AP’s refusal to adopt Gulf of America
in its Stylebook. The only disputed question, therefore, is
whether the AP’s exclusion from these spaces was a
“materially” adverse action for the purposes of a First
Amendment retaliation claim. Wilson, 142 S. Ct. at 1261
(distinguishing between “material” and “immaterial” adverse
actions, only the former of which gives rise to an actionable
retaliation claim).

     A materially adverse action is generally one that deprives
a person of certain property rights or infringes a liberty interest.
For instance, loss of employment or the withdrawal of a
business license or permit may qualify as a materially adverse
action. See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 

, 283–85 (1977) (decision not to rehire
employee); Soranno’s Gasco, Inc. v. Morgan, 

,
1314 (9th Cir. 1989) (suspension of regulated entity’s permits).
                                   22
Other materially adverse actions include retaliatory arrest or
prosecution. See Nieves v. Bartlett, 

, 1721–22
(2019) (arrest); Hartman, 547 U.S. at 256–57 (prosecution). By
contrast, courts have held that criticisms or reprimand do not
constitute adverse actions. See, e.g., Wilson, 142 S. Ct. at 1259–
60 (holding that a verbal censure by the board of a public
college was not a materially adverse action, in part because
censures have been a common feature of government
assemblies since colonial times).

     The White House’s choice of who to allow into the Oval
Office is simply not like a decision about a government benefit
or license. First Amendment concerns may be raised “[w]hen
the government interacts with private individuals as sovereign,
employer, educator, or licensor, … [b]ut those cases are not
this one.” Id. at 1262. Choosing who may observe or possibly
speak with the President in these spaces is not the type of action
that supports a retaliation claim. Rather, it is more akin to a
decision about how the President wields the bully pulpit.9

     Furthermore, in determining whether a First Amendment
retaliation claim is actionable, courts may be guided by “long
settled and established practice[s].” Id. at 1259. White House

9
   Our dissenting colleague emphasizes that the denial of a
government benefit based on speech is often actionable. Pillard, J.,
dissenting, at 7–8. While this is generally true, the press pool is in no
way a government benefit program. Denying unemployment
benefits, tax exemptions, or trademarks on the basis of viewpoint can
support a First Amendment retaliation claim. Denying access to
observe or speak with the President in his private spaces cannot. The
dissent acknowledges that the President may take viewpoint into
account when granting interviews to select journalists. Id. at 17–18.
Our holding today reflects the fact that granting access to spaces such
as the Oval Office is more like granting interviews than like denying
unemployment benefits.
                              23
staff, not to mention the President, often form relationships
with reporters who cover the administration. James A. Jacobs,
The President, the Press, and Proximity, WHITE HOUSE
HISTORICAL         ASSOCIATION        (Mar.        1,     2015),
https://www.whitehousehistory.org/the-president-the-press-
and-proximity. Hard pass holders and press pool members
daily jockey for access to certain privileged spaces and to
senior administration officials. As the AP acknowledges (and
the district court recognized), the White House can and does
reward journalists with advantages like interviews with the
President and the opportunity to ask questions at press events.
Such viewpoint-based preferences occur at every level of
government in the relationship between elected officials and
the press. See Baltimore Sun, 457 F.3d at 417 (describing how
reporters routinely “cultivate access” to government officials).
These pervasive practices simply do not give rise to a
retaliation claim, regardless of how valuable the access may be.

      The AP and the district court again lean heavily on the
history of the press pool as an institution. But the AP cannot
adversely possess a seat in the Oval Office, no matter how long
its tradition of access. The press pool was a creation of the
White House Correspondents’ Association, a private
organization established by the press to manage itself. The
press pool gave privileged access to certain outlets in the
established media. Although the White House for many years
accepted this private arrangement between journalists, that
arrangement had no First Amendment status. Prior to the
Correspondents’ Association’s inception, no defined press
group covered the White House. Presidents decided which
journalists received privileged access, and the type and
frequency of access varied by administration. Jacobs, The
President, the Press, and Proximity. The Trump administration
has returned to the old system. It will no longer rely on the
Correspondents’ Association to select the members of the press
                               24
pool and instead will determine for itself which journalists to
admit to the Oval Office and other similar spaces for
presidential events.

     The AP also relies on the fact that the White House has not
abolished or replaced the press pool and therefore cannot
exclude journalists from the pool on the basis of viewpoint. The
emphasis on the press pool as a standalone entity does not
transform the AP’s exclusion into a materially adverse action.
This is particularly true because the AP concedes it has no First
Amendment right to privileged access within the press pool or
to events in such restricted spaces as the Oval Office. The AP
also acknowledges that the White House could, consistent with
the First Amendment, discriminate on the basis of viewpoint in
one-on-one interviews, small events on a particular subject
matter, or even newsgathering by groups other than the
established press pool. These realities of press coverage in the
White House reinforce our conclusion that the AP’s exclusion
from small group press events does not rise to the level of First
Amendment retaliation.

                               V.

     We turn now to the remaining stay factors: “(2) whether
the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.” Nken, 

 (cleaned up). In
granting equitable relief, the stay factors are not applied
mechanically and require “individualized judgments.” 

 (cleaned up). We must focus on the particular facts of the
case, exercising judgment “to balance the equities—to explore
the relative harms to applicant and respondent, as well as the
interests of the public at large.” Int’l Refugee Assistance
Project, 

 (cleaned up). In doing so, we are
                               25
mindful that a stay of a preliminary injunction involves the
equitable review of an extraordinary and interim equitable
remedy.

     Both the AP and the Government have identified
substantial harms if they are denied relief. The White House
seeks a stay because the injunction intrudes upon “essential
Presidential prerogatives.” Nixon v. Fitzgerald, 

 (1982). It is “incontestable” that the Presidency comes with
the power to use the office’s “bully pulpit.” Blassingame v.
Trump, 

, 14–15 (D.C. Cir. 2023) (cleaned up). The
President’s discretion to choose with whom he will speak and
travel is part of that power. On the other hand, the AP maintains
that the deprivation of its First Amendment right to be free
from unlawful viewpoint discrimination is an ongoing and
substantial harm, one that also includes significant economic
loss to its business. Elrod v. Burns, 

 (1976).

     Although the constitutional interests are weighty on both
sides, the harm to the White House outweighs the harm to the
AP. Absent a stay, the injunction threatens to impede the
President’s ability to select which members of the press to
invite into his otherwise private workspaces. The AP, however,
may continue to exercise its free speech rights in other spaces,
including White House press facilities such as the Brady
Briefing Room. While the AP has alleged financial loss from
being denied access to the Oval Office, that harm does not, in
our view, justify an intrusion on presidential prerogatives
during this litigation.

    Even if we considered the harms to be more evenly
balanced, that would simply require us “to decide the
emergency [stay] application by assessing likelihood of
success on the merits.” Labrador v. Poe, 

, 929
(2024) (Kavanaugh, J., concurring in the grant of stay); see also
                               26
Washington Metro. Area Transit Comm’n v. Holiday Tours,
Inc., 

 (D.C. Cir. 1977) (explaining that
careful parsing of likelihood of success on the merits “may be
necessary ... when interim relief would cause substantial harm”
or “when the balance of equities” so requires). Here, we have
already explained that the White House is likely to succeed
against the AP’s challenge because the President has discretion
to determine who is admitted to highly restricted presidential
workspaces such as the Oval Office.

     For the same reasons, the public interest favors a stay. See
Nken, 

 (explaining the balance of harms and
public interest factors “merge when the Government is the
opposing party”). We conclude that the preliminary injunction
intrudes on the independence of the Executive Branch and
burdens the President’s exercise of core executive powers, and
these harms warrant a stay with respect to the Oval Office, Air
Force One, Mar-a-Lago, and other similar spaces.

    We decline to stay the part of the preliminary injunction
applicable to the East Room. The identified harms are less clear
with respect to the East Room, which does not share the
hallmarks of spaces like the Oval Office.

                              ***

     Throughout our nation’s history, presidents have held
crucial meetings and made historic decisions in the Oval Office
and on Air Force One. On occasion, they have welcomed the
press to observe. But these restricted presidential spaces are not
First Amendment fora, and the President retains discretion over
who has access. Because we conclude the President may,
consistent with the Constitution, exclude journalists from these
spaces based on viewpoint, the White House is likely to prevail
on its appeal of the preliminary injunction. Without a stay, the
White House will suffer irreparable harm from the court’s
                             27
intrusion on presidential prerogatives. We therefore grant in
part the White House’s motion for a stay pending appeal.
     PILLARD, Circuit Judge, dissenting: For almost a century,
the White House has enabled the White House Press Pool, a
limited number of credentialed media organizations, to cover
the President at close range from inside the Oval Office, Air
Force One, and other government-controlled spaces. White
House staff determines which presidential activities and trips
the Press Pool covers. But participation in the Press Pool or
the broader White House press corps has never been
conditioned on the viewpoint expressed outside the Pool by any
participating news organization—until now. The issue here is
whether, when the White House authorizes the Press Pool to
travel with the President or observe an Oval Office meeting or
signing, the White House may exclude journalists or news
organizations based on their expression outside the Pool of
views the President disfavors. Neither this court nor the
Supreme Court has ever upheld the exclusion from a forum or
denial of a benefit based on a private recipient’s viewpoint
outside the forum or benefit program. Because the district
court correctly enjoined just such exclusion here, I see no basis
for a stay pending appeal.

     In late January, the White House barred the Associated
Press (AP) from the Press Pool solely and explicitly because
the AP uses the term “Gulf of Mexico” in its reporting and
editorial Stylebook rather than the President’s preferred “Gulf
of America” moniker. The AP challenged its exclusion as
unconstitutional viewpoint discrimination.        Following a
hearing, the district court issued a preliminary injunction
requiring White House staff to readmit the AP to Press Pool
privileges on a viewpoint-neutral basis.

    Defendants concede that they ousted the AP from the Press
Pool based on the AP’s expression of its own views outside the
Press Pool. They disavow any argument that the AP’s press
coverage of the presidency, much less its Stylebook, constitutes
government speech. They insist that they have not disbanded
the Press Pool. And defendants’ only claim of “irreparable
                                2
harm” is the continued operation of the White House Press Pool
during this litigation in the same way it had operated since the
Eisenhower Administration without apparent objection or
challenge.

     The panel’s stay of the preliminary injunction cannot be
squared with longstanding First Amendment precedent,
multiple generations of White House practice and tradition, or
any sensible understanding of the role of a free press in our
constitutional democracy.        Both its public-forum and
retaliation analyses contravene the fundamental principle that
the government may not leverage its allocation of valuable
support to punish recipients for the viewpoints they express
with their own time and resources. In my view, the clear and
only choice is to deny the stay.

                                I.

      The White House Press Pool is a subset of the
credentialled White House press corps that is regularly
admitted to smaller spaces to facilitate press coverage of the
President. The full press corps consists of more than 1,300
“hard pass” holders whom the government has vetted and
permitted to use dedicated press facilities in the White House,
Budowich Decl. ¶ 3, ECF No. 33-1;1 Ateba v. Leavitt, 

, 117-18 (D.C. Cir. 2025), whereas the Press Pool ranges
from 13 to 32 journalists depending on the specific event and
space, Pl. Ex. A to Second Miller Decl., ECF No. 27-6. The
criteria for press corps membership have evolved over time, but
it is undisputed that the White House may not exclude reporters
from the press corps based solely on their viewpoint. Ateba,
113 F.4th at 122-23.


1
 All citations to ECF numbers are to Associated Press v. Budowich,
No. 25-00532.
                                3
     When the White House decides to allow members of the
press corps to cover newsworthy events occurring in limited
spaces such as the Oval Office, it does so by inviting the Press
Pool. See Hearing Tr. 82:6-13, ECF No. 45. Journalists in the
Pool generate coverage for their own organizations and
distribute “pool reports” to other media outlets that use them to
inform their own coverage of the presidency. Knight Inst. Br.
3-4, 8, ECF No. 31-1. By custom dating back to the
Eisenhower Administration, presidential staff have relied on
the White House Correspondents’ Association to determine
which news organizations are eligible to participate in the Press
Pool, either on a permanent or rotating basis. Knight Inst. Br.
4; Hearing Tr. 97:4-24.

     The right of journalists in the Press Pool to participate free
from discrimination based on viewpoint “has endured even
during the eras of rockiest relations between the White House
and the press—during the Watergate investigations, and
Independent Counsel Kenneth Starr’s investigation of
President Bill Clinton.” Knight Inst. Br. 8. The Reagan
Administration briefly sought to bar television journalists from
the Press Pool—not based on viewpoint, but in an attempt to
pressure TV outlets to come to consensus on which
broadcasters would receive the available slots. Even that
temporary and viewpoint-neutral exclusion was enjoined based
on the “enduring and vital tradition of public entree . . . to the
presidential activities covered by press pools.” Cable News
Network, Inc. v. Am. Broadcasting Cos., Inc., 

 (N.D. Ga. 1981). Until this case,
Presidents might have openly criticized press coverage they
received—including from outlets in the Press Pool—but none
had ousted a participant from the Pool based on viewpoint. See
Reporters Comm. Br. 8-9, ECF No. 54.
                               4
     In addition to allowing the Press Pool into the Oval Office,
Air Force One, and other limited spaces like the Cabinet Room
and Mar-a-Lago, the White House also holds larger “limited-
access” events in the East Room and other locations. Because
the East Room can only accommodate approximately 180
people, when such events are open to members of the press
corps their attendance is typically capped and managed through
an online RSVP tool. Budowich Decl. ¶¶ 12-13. Similar
limited-access events occasionally take place at other locations,
including outside the White House when the President travels.
See Associated Press v. Budowich, No. 25-00532, __F. Supp.
3d__, 

, at *5 (D.D.C. Apr. 8, 2025)
(discussing limited-access event in West Palm Beach). White
House staff confirms acceptance of press RSVPs to those
events only up to the event’s press capacity. See Hearing Tr.
80-81. Access to those events has also long been provided
without regard to a journalist’s viewpoints expressed outside
the event.

     The AP, the plaintiff in this case, is a not-for-profit wire
service founded in New York in 1846 that now licenses its text
reporting and photojournalism to subscribers around the world.
Heitmann Decl. ¶¶ 2-5, ECF No. 37-1. The AP’s customers
include leading television networks, newspapers, and radio
broadcasters both in the United States and abroad; the AP
claims its journalism reaches four billion people every day.
Compl. ¶ 3, ECF No. 1; Heitmann Decl. ¶ 5. Befitting its
historical stature, the AP also is a founding member of the
White House Press Pool. Compl. ¶ 26; Budowich, 

, at *2.           For decades, the White House
Correspondents’ Association assigned two of the 13 “core”
spots in the Press Pool to the AP—one for a photographer, and
one for a text reporter. Budowich, 

, at *2;
Budowich Decl. ¶ 8; Compl. ¶ 27.
                              5
     The AP’s inclusion in the Press Pool and ability to enter
limited-access events on the same terms as other journalists
was uncontested until this administration deemed its presence
intolerable, expressly because of the AP’s failure to use
President Trump’s new “Gulf of America” nomenclature in the
AP’s own writing outside any official events. On January 20,
2025, President Trump issued Executive Order 14172,
“Restoring Names That Honor American Greatness,” which
directed that the “area formerly known as the Gulf of Mexico”
be renamed the “Gulf of America.” Exec. Order No. 14,172,

, 8630 (Jan. 31, 2025).              The AP
acknowledged the renaming in its reporting, but for its own
purposes continued to use the name “Gulf of Mexico,”
including in its influential Stylebook, a writing and editing
guide used throughout the media industry. Budowich, 

, at *3. Defendants do not dispute that they
excluded the AP’s reporters from the Press Pool and other press
events solely because the AP’s reporting and Stylebook
continued to refer to the Gulf of Mexico. See 

; Pl.
Ex. B to Second Pace Decl., ECF No. 28-2.

     The AP sued the White House Chief of Staff, Deputy Chief
of Staff, and Press Secretary in their official capacities.
Following expedited briefing on the AP’s motion for a
preliminary injunction, the district court held an evidentiary
hearing and ruled in the AP’s favor. In a thorough and well-
reasoned decision, the court preliminarily enjoined defendants
from excluding the AP based on its viewpoint from the Press
Pool or from other “limited-access” events open on a timely-
RSVP basis to members of the larger press corps. The court
ordered defendants to “immediately rescind the denial of the
AP’s access” to spaces the White House opens to the Press Pool
“when such spaces are made open to other members” of the
Pool, and to “immediately rescind their viewpoint-based denial
                               6
of the AP’s access to events open to all credentialed White
House journalists.” Budowich, 

, at *19.

     The government appealed and sought an emergency stay
of the district court’s preliminary injunction pending our
decision on its merits. “A stay pending appeal is an
‘extraordinary’ remedy.” KalshiEX LLC v. CFTC, 

, 63 (D.C. Cir. 2024). Defendants have not carried their
burden to demonstrate a “strong showing” of likely success on
the merits. 

 Nor have they shown any legally cognizable
harm from allowing the AP to participate in the Press Pool
during the pendency of this appeal. I accordingly respectfully
dissent from the order granting a stay.

                              II.

     No precedent of this court or the Supreme Court
countenances denial of a government benefit or exclusion from
a government-created program to otherwise eligible
participants solely because of disagreement with a participant’s
point of view expressed outside the benefit or program. Public
officials often and inevitably disagree with publicly expressed
views of the journalists or news organizations that cover them.
Until now, every United States president has had the fortitude
to tolerate the presence in the White House and Oval Office of
credentialed journalists known to disagree with one or more
government-preferred viewpoints. The First Amendment
demands no less.

                              A.

     Defendants have not made the showing critical to their stay
application that they are likely to succeed in establishing that
the First Amendment allows them to oust journalists from the
White House Press Pool based on their employing
organization’s viewpoint. See Nken v. Holder, 

,
                                 7
434 (2009). Forum analysis readily confirms that failure. My
colleagues’ effort to distinguish forum analysis is nonetheless
beside the point because the bar on viewpoint discrimination in
nonpublic forums for private speech is but one iteration of a
broader First Amendment principle strongly supportive of the
AP’s claims.

     The majority’s defense of defendants’ viewpoint-based
exclusion of the AP from the Press Pool utterly disregards that
broader principle. So, too, does its assumption that the AP’s
retaliation claim is likely to fail. Denial of a tangible benefit in
retaliation for a recipient’s own viewpoint expressed elsewhere
violates the First Amendment.

     “At the heart of the First Amendment’s Free Speech
Clause is the recognition that viewpoint discrimination is
uniquely harmful to a free and democratic society.” Nat’l Rifle
Ass’n of Am. v. Vullo, 

 (2024). Few
constitutional doctrines are as firmly established as the
principle that “ideologically driven attempts to suppress a
particular point of view are presumptively unconstitutional.”
Rosenberger v. Rector & Visitors of the Univ. of Va., 

 (1995). It is unsurprising, then, that the government
could not identify a single case approving viewpoint
discrimination—the most “egregious” form of speech
restriction, Reed v. Town of Gilbert, 

, 168 (2015)
(citation omitted)—in circumstances bearing any material
similarity to this case. Oral Argument Tr. 14:24-15:19. Given
government officials’ perennial frustration with unflattering
press coverage, the absence of supportive precedent for
defendants’ action is striking.

    The prohibition on viewpoint discrimination applies
equally to the imposition of penalties and the denial of benefits.
The government may not condition receipt of any otherwise-
                                8
available benefit or opportunity on a recipient’s endorsement
or avoidance of a particular viewpoint. That rule applies to
government benefits generally, including federal funding, tax
exemptions, trademarks, government contracts, and public-
sector employment. See Agency for Int’l Dev. v. All. for Open
Soc’y Int’l, 

 (2013); Speiser v. Randall,

 (1958); Matal v. Tam, 

, 243-
44 (2017) (plurality opinion); 

 (Kennedy, J.,
concurring); Iancu v. Brunetti, 

, 393-94 (2019);
Bd. of Cnty. Comm’rs v. Umbehr, 

(1996); Elrod v. Burns, 

 (1976). Even
where a government program is designed to support a small
number of speakers selected on discretionary, aesthetic criteria,
it may not impose restrictions intended to punish “certain ideas
or viewpoints.” Nat’l Endowment for the Arts v. Finley, 

 (1998) (citation omitted). And even
discretionary support to public broadcasters cannot be
allocated to “curtail expression of a particular point of view.”
FCC v. League of Women Voters, 

(1984) (citation omitted). The majority errs in assuming that
that deprivation of a property or liberty interest need be shown.
Maj. at 21.

     “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 . . . .” W. Va. State Bd. of Educ. v.
Barnette, 

 (1943). Indeed, the government
may not criminalize acts based on the viewpoint that motivated
them, even if the conduct itself is criminal and not First
Amendment protected. R.A.V. v. City of St. Paul, 

 (1992). “It is axiomatic that the government may not
regulate speech based on its substantive content or the message
it conveys.” Rosenberger, 

. The only exception
to the general rule is when the government engages in
                               9
expression of the government’s own viewpoint, that is, when it
is engaged in government speech. Pleasant Grove City v.
Summum, 

 (2009). But defendants
expressly disavow that the AP’s Stylebook or other references
to the Gulf of Mexico constitute government speech. The
upshot is that no general program for admitting the press to the
White House or the Oval Office can exclude a press outlet
based on its viewpoint.

     The President’s use of the Oval Office as a platform for his
official speech does not entail governmental authority to
impose viewpoint restrictions on the Press Pool. Even where
the government funds private organizations to advance official
policy and therefore can control the viewpoint expressed within
the funded program, it may not deny support based on
disapproval of the recipient’s speech outside that program. The
government may not require private participants to “adopt—as
their own—the Government’s view on an issue of public
concern as a condition of funding.” Agency for Int’l Dev., 

. That is why the Supreme Court in Agency for
International Development held that the government violated
the First Amendment rights of an organization receiving public
support to advance the government’s HIV/AIDS prevention
mission when it required the organization to echo the
government’s opposition to prostitution in the organization’s
own work with its own funds. 

. The rule that
public funds may be limited to the purpose for which they are
granted does not empower the government to impose viewpoint
restrictions on grantees’ private speech. Rust v. Sullivan, 

 (1991) (holding that the government may not
restrict “the recipient from engaging in the protected conduct
outside the scope of the federally funded program” as a
condition of funding).
                              10
     Whatever my colleagues mean by emphasizing that Oval
Office events “involve” governmental speech because the
President typically speaks there, Maj. at 19, the Press Pool’s
coverage of those events—let alone the content of the AP’s
Stylebook—is not governmental speech legitimately subject to
official viewpoint control. My colleagues are also wrong that
the “essential function” of the Oval Office is “defeated” by the
presence of a Press Pool free from viewpoint discrimination.

 The Press Pool has operated without viewpoint control for
almost a century during which presidents have communicated
directly from the Oval Office. The purpose of the Press Pool
has never been to propagandize for the President, but only to
enable reliable news coverage of his leadership. Public
officials’ prerogative to speak for the government does not
include any ability to control private parties’ speech on their
own behalf, even when that speech relates to the government’s
message.

      Defendants concede that the AP had been barred from the
Press Pool solely because of references to the Gulf of Mexico
in its own writing. Hearing Tr. 190:17-24; see also Budowich,

, at *3. They gave no other, constitutionally
defensible basis for the AP’s exclusion. There is no finding—
nor was there any evidence—that the AP’s activity within the
Press Pool was inappropriate, disruptive, distracting, an
invasion of privacy, or in any other way distinguishable from
that of representatives of the media outlets that the White
House still allows to report from the Oval Office. And
defendants have (correctly) disavowed the argument that their
discriminatory treatment of the AP can be understood as
regulation of the government’s own speech. Budowich, 

, at *10; see Oral Argument Tr. 4:8-17.

    The only basis for defendants’ action is that the AP had
expressed—outside the Oval Office and while speaking in its
                              11
own capacity with no government support—a point of view
that the White House disagreed with and sought to “suppress.”
Minn. Voters All. v. Mansky, 

, 12 (2018) (quoting
Perry Educ. Ass’n v. Perry Local Educators Ass’n, 

 (1983)). Even without any forum analysis, that resolves
this case.

                              B.

     Forum analysis powerfully reinforces that conclusion.
The AP’s exclusion from the Press Pool violates the bedrock
principle that the government may not exclude private speakers
from a government-created forum, even a nonpublic forum,
based on their viewpoint. See, e.g., Mansky, 585 U.S. at 11-12;
Perry Educ. Ass’n, 

; Int’l Soc’y for Krishna
Consciousness v. Lee (ISKCON), 

 (1992).
When the government imposes restrictions on the use of public
property for private expression, such as by limiting speech
“only in a specific location,” the government must abide by the
First Amendment’s public forum doctrine. Mansky, 585 U.S.
at 11. Every type of forum recognized under the First
Amendment, be it a “traditional public forum,” “designated
public forum,” “limited public forum,” or “nonpublic forum,”
shares a baseline prohibition on viewpoint discrimination. See
ISKCON, 505 U.S. at 678-79.

     The Press Pool readily qualifies as at least a nonpublic
forum. Spaces that White House staff open for journalists’
newsgathering and nongovernmental communication have
consistently been held to be nonpublic forums. See Ateba, 133
F.4th at 122-23. The default category in forum analysis is the
nonpublic forum, which includes “all remaining public
property” that does not qualify as a traditional, designated, or
limited public forum.       ISKCON, 505 U.S. at 678-79.
Nonpublic forums include any government-controlled space
                              12
that “is not by tradition or designation a forum for public
communication,” but where private expressive activity
nonetheless occurs. Mansky, 585 U.S. at 11 (quoting Perry
Educ. Ass’n, 

). A space can qualify as a
nonpublic forum even if it was not specifically opened “for
purposes of providing a forum for expressive activity,” so long
as “such [private expressive] activity occurs.” Cornelius v.
NAACP Legal Def. & Educ. Fund, 

 (1985).

     The White House Press Pool is a forum even when it
convenes outside the White House, such as on Air Force One
or at Mar-a-Lago. A public “space” may refer to “a forum more
in a metaphysical than in a spatial or geographic sense, but the
same principles are applicable.” Rosenberger, 

;
see 

 (public university funding opportunity for student
activities); Cornelius, 

 (federal government’s
Combined Federal Campaign charity drive); Perry Educ.
Ass’n, 

 (public school’s internal mail system).
In a nonpublic forum, the government enjoys the most
“flexibility to craft rules limiting speech” and “may reserve
such a forum ‘for its intended purposes, communicative
or otherwise,’” but any such limits must be “‘reasonable and
not an effort to suppress expression merely because public
officials oppose the speaker’s view.” Mansky, 585 U.S. at 11-
12 (emphasis added) (quoting Perry Educ. Ass’n, 

).

     The application of nonpublic forum analysis in this case is
straightforward. The Press Pool is not materially distinguish-
able from previously recognized nonpublic forums. In Sherrill
v. Knight, 

 (D.C. Cir. 1977), we held that, in light
of the “important [F]irst [A]mendment rights implicated by
refusal to grant White House press passes to bona fide
Washington journalists, such refusal must be based on a
compelling governmental interest” and cannot be “based upon
                               13
the content of the journalist’s speech.” 

. In Ateba,
we had “no trouble” confirming that, while “Sherrill predated
modern forum analysis, its description of the [White House]
Press Area fits the definition of a nonpublic First Amendment
forum” for which regulations on expression must be
“viewpoint neutral.” 133 F.4th at 122-23.

     There is no principled basis for exempting the press’s
activities in any White House “press area” from the
requirement of viewpoint neutrality. When the White House
Press Pool convenes in the Oval Office, just as when the
broader press corps convenes in another White House location,
it does so to engage in newsgathering. To that end, Pool
members communicate text and photos to editors and the
broader public, all of which is nongovernmental “expressive
activity occurring on federal property.” Cornelius, 

. The Press Pool convenes at times identified by White
House staff. It works in proximity to the President because the
White House itself has established, through decades of practice
and formal policy, that one of the “intended purposes” of the
spaces closest to him is to enable the press to cover the
President. See Perry Educ. Ass’n, 

; see also
Reporters Comm. Br. 7-10 (discussing the history of the Press
Pool). “Gathering information about government officials in a
form that can readily be disseminated to others serves a
cardinal First Amendment interest in protecting and promoting
the free discussion of governmental affairs.” Price v. Garland,

, 1070-71 (D.C. Cir. 2022) (quoting Glik v.
Cunniffe, 

 (1st Cir. 2011)).

     The government confirmed that the White House has not
abolished the Press Pool. Oral Argument Tr. 69:13-18. First
Amendment questions as to how and why the government
might replace the Pool with a different system for press access
are not before us. Nor is this a case of permissible restrictions
                               14
on expression within the Pool “based on subject matter [or]
speaker identity.” Cf. Cornelius, 

. Defendants
identify nothing about the AP—apart from its own viewpoint
expressed outside the forum—as disqualifying it from the Press
Pool. What the government seeks to defend here is the
exclusion of one news outlet based on its disfavored viewpoint.

     Defendants insist that applying forum analysis here is
“startlingly counterintuitive,” because the Press Pool convenes
in “intimate spaces” that are “restricted” and function as “the
personal office space” of the President. Stay Mot. 13. As
discussed above, even apart from forum analysis, the White
House is barred from denying benefits based on the recipient’s
viewpoint expressed outside the program, so it is hardly
startling that forum analysis leads to the same conclusion.

     In any event, defendants offer no support for excepting the
Press Pool from forum analysis. The fact that the Oval Office
is generally closed to the public is simply another way of
saying that it is “not by tradition or designation a forum for
public communication,” i.e. that it is a nonpublic forum.
Mansky, 585 U.S. at 11 (quoting Perry Educ. Ass’n, 

). Government office buildings are paradigmatic
nonpublic forums. Ateba, 133 F.4th at 121-22. And the
security restrictions applicable to the Oval Office do not alter
the calculus. The entire White House is under tight security,
but when spaces within are open to White House-credentialed
journalists, exclusions are impermissible if “based upon the
content of the journalist’s speech.” Sherrill, 

;
see also Ateba, 133 F.4th at 122-23. That same principle
applies when the Oval Office is open to the Press Pool.

     Defendants’ suggestion that the First Amendment is
inapplicable because journalists’ activities in the Press Pool are
not communicative, see Stay Mot. 14-15, is wrong as a factual
                               15
and legal matter. As for the facts, the district court found that,
when journalists are in the Press Pool, they consistently engage
in “near-instantaneous” communication with editors, other
reporters, and (by extension) the broader public when in the
Oval Office. Budowich, 

, at *11. The
government makes no clearly-erroneous challenge to that
finding.

     The law, too, is on the AP’s side in treating newsgathering
as communicative. Defendants rely on Price v. Garland, which
held public forum analysis inapplicable to a restriction on
filmmaking in public parks insofar as the restriction applied to
the noncommunicative act of taping the film for potential
future screening. 45 F.4th at 1069-71. But Price itself
distinguishes its facts from newsgathering. It disclaims the
applicability of its holding to “[g]athering information about
government officials in a form that can readily be disseminated
to others”—that is, “news-gathering.” Id. at 1070-71, 1075
(formatting altered); see also id. at 1071 n.*** (noting that
“[f]orum analysis may well apply to live streaming, which is
communicative activity, albeit to people who are not
necessarily located in the forum in which the streaming is
conducted.”).

     More to the point, even as Price declined to apply public
forum analysis to filmmaking that it deemed
“noncommunicative,” it applied the nonpublic forum standard
that the AP relies on here, confirming that any “restriction must
not discriminate against speech on the basis of viewpoint, and
the restriction must be reasonable in light of the purpose served
by the forum.” Id. at 1072 (emphasis added) (quoting Good
News Club v. Milford Cent. Sch., 

 (2001));
see also id. at 1076 (Henderson, J., concurring). The same is
true of Bryant v. Gates, on which the majority also relies, Maj.
at 19. 

 (D.C. Cir. 2008) (noting that a
                              16
military newspaper’s advertising section that rejected plaintiff
ads was a “nonpublic forum” for which restrictions on speech
“need only be reasonable in light of the purposes of the forum
and viewpoint-neutral.”) (emphasis added). Both Price and
Bryant affirmatively support the AP’s claim that the
government’s action to suppress its viewpoint violates the First
Amendment.

     Contrary to defendants’ suggestion, forum analysis does
not require the intended audience to be “physically present in
the putative forum.” Stay Mot. 14. See Maj. at 17 (similarly
suggesting that forum analysis does not apply when the
expressive activity is directed “outside the forum”). The
importance of free expression via radio, broadcast, and—
increasingly—digital communication confirms why applying a
“physical presence” requirement to forum analysis would be
nonsensical and arbitrary. The Supreme Court in Arkansas
Educational Television Commission v. Forbes, 

(1998), used forum analysis to consider a candidate’s claim of
exclusion from a debate on public television even though its
audience was doubtlessly not limited to people “physically
present in the putative forum.” 

. What is more,
neither the government nor the majority makes any effort to
explain how, if newsgathering in the Oval Office is directed
“outside the forum,” the same is not equally true of the
admittedly protected activity of the broader press corps in
places like the Brady Briefing Room. They cannot square
viewpoint-based prohibitions on uses of digital media on
government property with the First Amendment.

     Defendants’ (and the majority’s) principal argument is that
the President has unlimited discretion to pick “which
journalists to grant special access unavailable to other members
of the press corps.” Stay Mot. 16. Their sole precedent is
Baltimore Sun Co. v. Ehrlich, 

 (4th Cir. 2006),
                               17
which is both inapposite and not binding on this court. The
plaintiff journalists in Baltimore Sun objected to government
officials’ refusal to grant them interviews or return their calls.
Id. at 413. Judicial relief would have required the defendants
to speak with certain reporters. Any such command would
have strained the basic principle that “[t]he First Amendment’s
Free Speech Clause does not prevent the government from
declining to express a view,” and that the government may
choose for itself “what to say and what not to say.” Shurtleff v.
City of Boston, 

, 251 (2022); see also Pleasant
Grove City, 

 (“A government entity has the right
to ‘speak for itself.’”) (quoting Bd. of Regents of Univ. of Wis.
Sys. v. Southworth, 

 (2000)).

     The AP does not assert a right to have the President return
its phone calls, or to “interact and speak with government
officials.” See Budowich, 

, at *12-13. What
the AP challenges is its reporters’ and photographers’
exclusion from a government program for which it is otherwise
fully eligible and has long participated, based solely on the
AP’s own expression in its Stylebook and reporting. The
district court assumed that “government officials cannot be
forced to speak with reporters,” but distinguished Press Pool
participation from the individualized invitations to interview
the President or other government officials at issue in
Baltimore Sun. 

. Unlike invited interviews that
“would not happen but for the outlet’s presence,” the Press
Pool covers events that “would happen whether any particular
outlet had a reporter there or not.” 

 The district court also
noted that Press Pool members are often at a distance that
prevents them from having interview-like “substantive
conversation[s]” with officials the Pool covers. 

 Moreover,
when the President decides whom to call back or invite in for
an exclusive interview, he is engaged in government speech
and choosing who to employ in expressing his message. That
                               18
government speech function is simply not at issue here, and
defendants have properly disavowed that their exclusion of the
AP turns on any government speech. The fact that one need
not return every press call does not mean one can exclude
journalists from general newsgathering opportunities based on
their disfavored views outside the program.

     The defendants do not engage with those distinctions but
sweep them aside to assert a legal prerogative of unprecedented
breadth. In their view, “when the President deals with the
press, he is permitted to consider the nature of a journalist’s
coverage in deciding how much access to give them.” Stay
Mot. 19. But the “access” to interview government sources in
Baltimore Sun should not be conflated with “access” to forums
on government property that are established to enable
journalists to report on the government’s activities. We have
held that the White House may not deny those reporters that
“special access” solely because they dislike the reporters’
viewpoints. Sherrill, 

; see Ateba, 133 F.4th at
121-23. The Seventh Circuit in John K. MacIver Inst. for Pub.
Policy, Inc. v. Evers, 

 (7th Cir. 2021)—an out-of-
circuit case that, unlike Baltimore Sun, is directly relevant to
the issue before us—recognized the same distinction when it
held that the Wisconsin governor’s limited-access press
conferences (unlike individual interviews) were nonpublic
forums as to which viewpoint discrimination was
constitutionally prohibited. 

.

     My colleagues further reason that the President has an
unlimited power to allocate necessarily restricted benefits like
Press Pool membership, and that the Press Pool’s activities are
sufficiently closely related to government speech to lose
independent First Amendment protection. Maj. at 17-19. Both
steps of that analysis are off base. The limited size of the Press
Pool does not open the door to viewpoint-based selection.
                               19
Contrary to my colleagues’ characterization of Finley, Maj. at
17-18, even when analyzing the limited set of grants at issue
there, the Supreme Court acknowledged that would have been
a “different case” if the government engaged in “invidious
viewpoint discrimination” in its allocation of arts grants. 

. And, while my colleagues suggest that forum
analysis is inapplicable because the AP’s activities somehow
“involve” government speech, Maj. at 19, the government itself
disavows reliance on government speech—for good reason.
The Supreme Court has expressly warned against such
“dangerous misuse” of the government speech doctrine: “If
private speech could be passed off as government speech by
simply affixing a government seal of approval, government
could silence or muffle the expression of disfavored
viewpoints.” Matal, 582 U.S. at 235 (Alito, J., delivering the
opinion of the court). The AP’s references to the Gulf of
Mexico speak only for the AP, not the government.

     The majority’s characterization of the Press Pool is also
problematic because it seems equally applicable to the entire
White House press corps, which we have squarely held is
protected from viewpoint discrimination. The press corps, like
the Pool, is a select subset of journalists seeking to gather news
and engage in nongovernmental expression in a manner that,
by the majority’s terms, apparently “involves” the
government’s efforts to communicate to the public. But my
colleagues duck the question whether their position applies to
access to other White House spaces like the East Room. Maj.
at 26. Their attempts to distinguish the Brady Room are also
contrary to precedent, as they seem to rest either on arbitrary
numerical cutoffs or the notion that a space must be opened
“for purposes of providing a forum for expressive activity” to
merit First Amendment protections—a prerequisite the
Supreme Court has expressly disavowed for nonpublic forums.
Cornelius, 

; cf. Maj. at 11, 18-19.
                              20
     None of this analysis rests on any affirmative right of AP
reporters to be present in the Oval Office. Plaintiffs do not
argue that the White House is constitutionally obliged to
operate a Press Pool, any more than the government in
Cornelius was required to organize the Combined Federal
Campaign for charitable fundraising, the school district in
Perry Education Association was required to establish an
internal school mail system, or the television station in
Arkansas Educational Television Commission was required to
host a candidate debate. But once the government chooses to
permit a forum for private expression in a government-
controlled space, the First Amendment forbids viewpoint-
based restrictions on who may participate. That is why neither
government counsel nor my colleagues cite a single case
permitting viewpoint-based exclusion from nonpublic
forums—or, indeed, any case permitting the government to
condition a government benefit on a private recipient’s
viewpoint expressed outside the government funded program.
Defendants have not shown a “strong likelihood” under
existing precedent that they will succeed on the merits, as they
must do to establish entitlement to a stay pending appeal of the
district court’s injunction.

                              C.

     The government’s defense against the retaliation claim is
unlikely to succeed for all the same reasons. The majority
concludes that the AP suffered no retaliation because its
exclusion from the Press Pool was “not a materially adverse
action” for First Amendment purposes. Maj. at 22. The
majority reasons that the government did not impose a
punishment on the AP or deprive it of property, and so no
retaliation occurred. But as discussed above, the exclusion was
retributive, and in any event the First Amendment prohibits
even the denial of wholly discretionary support or benefits in
                                21
retaliation for a recipient’s exercise of speech rights outside the
supported activity or program.

     When an organization accepts government support—
including support to advance the government’s message—the
government cannot condition it on viewpoint-based restrictions
on private recipients’ independent speech.           Thus, the
government could not deny HIV/AIDS prevention funding to
Alliance for Open Society based on that group’s viewpoint,
even though the Alliance had no independent right to receive
government funding for such activity. Agency for Int’l Dev.,

. It could require recipients of Title X funding
to refrain from abortion advocacy in the Title X program itself,
but could not impose viewpoint restrictions on recipient
organizations’ “separate and independent” activities. Rust, 

. Artists have no freestanding “right” to
government funding by the National Endowment for the Arts,
nor does the Corporation for Public Broadcasting have any
independent “right” to government support. But in each
instance, denying such benefits based on the recipients’
viewpoints would violate the First Amendment, especially
where those views were expressed outside the government
benefit altogether as the AP’s were here. The majority’s novel
contention that speech-based retaliation claims require a
deprivation of a property right or infringement of a liberty
interest are directly at odds with the principles outlined in
Agency for International Development, Rust v. Sullivan, FCC
v. League of Women Voters, and NEA v. Finley.

     My colleagues seek to analogize the AP’s treatment to that
suffered by the plaintiff in Houston Community College System
v. Wilson, 

 (2022). But in Wilson, an elected
official received only a “purely verbal censure” in response to
his expression. 

. Nobody disputes that the White
House may, in its own speech, criticize the AP’s viewpoint.
                               22
But excluding the AP from even a wholly discretionary federal
benefit goes far beyond that.

                               III.

     Defendants have also failed to demonstrate the second
“critical” Nken factor—that they will suffer irreparable harm
absent a stay. 

. The district court’s preliminary
injunction forbids exclusion of the AP’s journalists “based on
the AP’s viewpoint when such spaces are made open to other
members of the White House press pool.” Budowich, 

, at *19. The district judge observed that the “defense
has not argued that an injunction would affect [the President’s]
constitutional authority in any way.” See 

 at *19 n.9.

      Defendants assert they are harmed because the injunction
“restricts the White House’s discretion from making its own
judgments about whom it will admit into some of the most
restricted spaces on the planet.” Stay Mot. 21-22; see Stay
Reply 9 (asserting that “the President has been forced to
relinquish control over who may enter the Oval Office”). But
it is the White House staff, not the members of the Press Pool,
who decide when the Pool reports from the Oval Office. And
the injury as defendants define it would seem to flow from the
presence of unaligned reporters anywhere in the White House.
Yet our circuit’s precedent is clear that viewpoint-based
restrictions on White House press access to other areas violate
the First Amendment. Sherrill, 

. We have so
held even though we thereby restrict the White House’s
discretion over places under the highest levels of government
control. Inherent in the notion of forum analysis is that, when
it permits the use of public resources for private expression, the
government cannot exclude selected private speakers whose
views it dislikes.
                               23
     Counsel for the government belatedly argued that the
presence in the Oval Office of journalists with disfavored
viewpoints irreparably harms the President’s “dignity” or
“autonomy.” Oral Argument Tr. 28-29, 70-71. In a similar
vein, my colleagues assert that barring viewpoint
discrimination against Press Pool members impairs Executive
“independence.” Maj. at 1, 26. But the effect of the
preliminary injunction is confined to disabling defendants from
“suppress[ing] expression merely because public officials
oppose the speaker’s view.” Mansky, 585 U.S. at 12 (quoting
Perry Educ. Ass’n, 

). The uncontested record
evidence establishes that every President since at least
Eisenhower has endured the only real-world injury asserted by
the government here: the proximity on government property of
some member of the press associated with a view the President
disfavors. That “injury” is ubiquitous and inescapable in every
single public official’s engagement in the rough and tumble of
the political arena. The notion that any public official—let
alone the President of the United States—could be irreparably
harmed by attendance within the Press Pool of the carefully
vetted, nondisruptive journalists who work for the AP is
extraordinary.

     Finding irreparable harm to Executive dignity, autonomy,
or independence in the context of this case so attenuates Nken’s
irreparable harm factor as to nullify it in cases in which the
Executive seeks a stay. I cannot credit such a novel and
amorphous approach to the requirement of a showing of
irreparable harm.

                              IV.

     The balance of equities and the public interest also
disfavor staying the district court’s injunction. As the district
court correctly found, the AP suffers irreparable injury when it
                                24
is excluded from press events because of its viewpoint. “The
loss of First Amendment freedoms, for even minimal periods
of time,” constitutes irreparable harm when the plaintiff
“demonstrates that First Amendment interests are either
threatened or in fact being impaired at the time relief is sought.”
Nat’l Treasury Emps. Union v. United States, 

 (D.C. Cir. 1991) (Thomas, J.) (formatting altered). And
the AP is also suffering significant competitive harms as its
exclusion undermines its position in the global media market.
In its stay motion, the government did not dispute the district
court’s conclusion that those losses, too, are likely to be
irreparable. See Budowich, 

, at *18.

     The public interest also overwhelmingly favors press
outlets’ ability to report on public officials, including the
President in the Oval Office, without the government punishing
some and thereby chilling others into self-censorship if they
use words that politicians dislike. The harm of publicly
punishing disfavored viewpoints “does not end” with an
individual target but extends “to other pillars of our
constitutional order” who thereby learn “they engage in
protected activity at their peril.” Jenner & Block LLP v. U.S.
Dep’t of Justice, No. 25-916, __F. Supp. 3d__, 

, at *23 (D.D.C. May 23, 2025) (formatting altered).

     “Not only newsmen and the publications for which they
write, but also the public at large have an interest protected by
the [F]irst [A]mendment in assuring that restrictions on
newsgathering be no more arduous than necessary, and that
individual newsmen not be arbitrarily excluded from sources
of information.” Sherrill, 

. That is why the
Supreme Court recognized that “news gathering is not without
its First Amendment protections,” and that “[o]fficial
harassment of the press . . . to disrupt a reporter’s relationship
with his news sources would have no justification.” Branzburg
                               25
v. Hayes, 

 (1972). Even Newsmax, a
media outlet not known for criticizing President Trump, joined
with scores of news outlets to express dismay at the AP’s ban
because “a future administration may not like something
Newsmax writes and seek to ban us.” Reporters Comm. Br. 5.

     The First Amendment recognizes press freedom as vital to
an informed citizenry. Constitutional protection of news
organizations from official punishment for what they say is
essential to “the free discussion of governmental affairs” that
the public relies on to “effectively participate in and contribute
to our republican system of self-government.”               Globe
Newspaper Co. v. Superior Ct. for Norfolk Cnty., 

 (1982) (formatting altered). The central function of press
freedom is fatally weakened when the government bullies press
outlets into compliance by depriving them of otherwise
available forums for expression based on their viewpoint. The
public interest is powerfully served by the district court’s order
preliminarily enjoining defendants’ undisputedly viewpoint-
based punishment of the AP.

                               V.

    In granting a stay, my colleagues assert a novel and
unsupported exception to the First Amendment’s prohibition of
viewpoint-based restrictions of private speech—one that not
even the government itself advanced. And they accept an
equally unprecedented notion of harm to presidential
“independence” when professional journalists are “permit[ted]
to observe him” from the Press Pool despite the President’s
disagreement with something their news organization
published. Stay Mot. 1, 22.

    Make no mistake as to why it matters that the panel
majority accepts these theories. In the short term, the court
allows the White House to rely on viewpoint to exclude the AP
                              26
from the Press Pool pending a final decision on the merits, a
process that typically takes months. And, looking further
ahead, if any merits panel were to accept those theories, the
result would be a Press Pool—and perhaps an entire press
corps—limited during Republican administrations to the likes
of Fox News and limited to outlets such as MSNBC when a
Democrat is elected. More to the point, if the White House
were privileged to exclude journalists based on viewpoint, each
and every member of the White House press corps would
hesitate to publish anything an incumbent administration might
dislike. Factually accurate journalism unflattering to the
incumbent administration would not long endure.

     The press corps and its avatar Press Pool were established
and preserved for generations to foster the objective coverage
of the United States presidency that has been a defining
element of our constitutional democracy. The Press Pool is one
of the most consequential forums for national political news
reporting. And the AP is a respected and established wire
service that functions as a vital source of news for a daily
domestic and international audience of billions of readers,
including countless news organizations at home and around the
world that rely on the AP’s coverage. The First Amendment
undeniably protects the AP’s right to its own opinion. Yet the
White House has defiantly conditioned the AP’s participation
in the Press Pool on the organization’s endorsement of the
President’s official decision to rename the Gulf of Mexico as
the Gulf of America. Purporting to respect the First
Amendment while allowing exclusion of journalists from the
Press Pool based on viewpoint will quickly erode the
                              27
independence of any press outlet hoping to retain the chance to
cover the White House at close range.

     In my view, the government does not come close to
establishing entitlement to a stay. I therefore respectfully
dissent.