Thursday, September 7, 2023

A Hard Pass

The United States District Court for the District of Columbia (Judge Bates) has denied injunctive relief to a journalist who covers the White House

Simon Ateba, a journalist covering the White House for Today News Africa, an online publication focusing on American politics and the relationship between the United States and African countries, challenges a recent change in White House policy related to access for journalists. The new policy alters the requirements for obtaining a “hard pass”—a special press credential that allows a journalist to enter the White House press areas “on-demand.” Karem, 960 F.3d at 106. Ateba, who previously held a hard pass, lost his credential under the new rule.

No irreparable harm

Because the White House policy does not limit what Ateba can publish, his bare assertion that the policy violates the freedom of the press does not suffice to establish a likelihood of irreparable harm. And Ateba has not demonstrated the hard pass policy is likely to chill his newsgathering activities to the detriment of his readers. Ateba has indicated that, despite the difficulties he faces without a hard pass, he “will continue to cover the White House” and remains “determined to continue providing quality coverage for his readers.” Compl. ¶ 81. The evidence suggests he will be able to do so: “For his first three years covering the White House, Mr. Ateba obtained a temporary daily press pass . . . .” Id. ¶ 39; see Opp’n at 25. And since his hard pass expired, he has only tried to seek entry to the White House one time. Ateba asserts that on the prior two occasions the White House held a press briefing in August, he was not aware in time to request a day pass. Ateba Decl. ¶ 13. It is not clear to the Court whether this was a failure of Ateba’s diligence or the White House Press Office’s advance planning. In any event, the fact that the White House was willing to clear an 11:00 a.m. request for access, see Fleischer Suppl. Decl. ¶¶ 2–3, suggests Ateba could cover most if not all press briefings, allowing him to gather the news and deliver it effectively to his readers. See Getty Images, 193 F. Supp. 2d at 123 (finding no irreparable harm when it was unclear how the challenged regulation would affect journalists’ right of access to Guantanamo Bay).

Ateba also argues that his speech (and that of other journalists) will be chilled because his “efforts to fight the White House’s de facto policy of never calling on him made [him] unpopular with colleagues in the press corps,” and accordingly the new policy “requires” him and other journalists to “self-censor so that they can ingratiate themselves with their colleagues” who decide whether he can obtain the press gallery credential that is now a prerequisite to obtaining a White House hard pass. Mot. at 20. This alleged harm is too speculative to support relief, particularly in light of the evidence Ateba supplies of his own behavior—years of acting in ways that disgruntle other correspondents, despite the contemporaneous cost to his relationship with the White House. See Compl. ¶¶ 46–53. While self-censorship could possibly be a “long-term effect” of the hard pass policy, the evidence at this stage does not support a finding that First Amendment interests are “threatened or in fact being impaired.” NTEU, 927 F.2d at 1255 (internal quotation marks omitted).

Finally, in reply, Ateba argues that he suffers a competitive harm because he is at a “disadvantage to the other White House journalists who are allowed to have hard-pass access.” Reply at 20. The Court has found on the evidence before it that Ateba retains access to the White House facilities on substantially similar terms. Indeed, he has the very access most reporters do in terms of entry. To the extent “Mr. Ateba’s competition gets more—and more efficient—access to the White House press areas and the President,” id. at 19, any resulting competitive harm is unlikely to “accrue ‘in the absence of preliminary relief’—that is, before the district court can resolve the case on the merits.” Singh, 56 F.4th at 109 (quoting Winter, 555 U.S. at 20).

In sum, the Court concludes that Ateba has not demonstrated a likelihood of irreparable harm. Hence, a preliminary injunction is not warranted.

(Mike Frisch)

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