This post covers the two published opinions of the D.C. Circuit for the week of April 7. Ateba v. Leavitt addressed a journalist’s First Amendment challenge to the White House Hard Pass Policy. Under this Policy, “[t]he White House issues hard passes,” which afford “preferred access to the White House Press Area,” to “reporters who are accredited by either the Supreme Court Press Gallery or a congressional press gallery.” Hard passes are more convenient than day passes, which require reporters to submit daily requests for access and wait for an escort to get into the White House Press Area. The appellant lost his hard pass when the challenged policy went into effect in 2023. Judge Pan wrote for the panel, which included Judge Wilkins and Senior Judge Rogers and concluded that the Policy was reasonable and viewpoint neutral and thus did not violate the First Amendment. 

The gist of the First Amendment challenge was that “the Hard Pass Policy [was] unreasonable because it require[d] [the appellant] to seek a press credential from another branch of the government that he does not want to cover, and allow[ed] an outside credentialing body, such as the Senate Daily Press Gallery, to exercise unbridled discretion in abridging his speech.” Noting that “[a] hard pass merely offers convenience,” Judge Pan reasoned that “[t]he lesser burden on Ateba distinguishes this case from our other cases involving the White House Press Area, which considered only the denial of access to that space.” Concluding that the White House Press Area is a nonpublic forum, Judge Pan asked whether the Hard Pass Policy was viewpoint neutral and reasonable. The Policy was reasonable because its accreditation scheme, which relied on the Supreme Court Press Gallery or a congressional press gallery, aimed to limit access to “bona fide journalists” and relied upon “established members of the profession to make the credentialing decision.” As to viewpoint neutrality, Judge Pan explained that “[a]lthough other circuits have concluded that the exercise of unbridled discretion to limit speech is per se viewpoint discrimination, we have not joined them.” In any event, the court was “unpersuaded” by the appellant’s argument that the applicable “of repute” standard was no standard at all. Rather, “the Senate Daily Press Gallery’s membership requirements are readily distinguishable from the standardless rules that have been held to confer too much discretion on decisionmakers.” Nor did the First Amendment “require the gallery to set a deadline for the adjudication of membership applications.” 

The D.C. Circuit published a second opinion in the week of April 7. In United States v. Gonzalez-Valencia, the court made short work of a criminal sentencing challenge, noting that most of the claims were “raised for the first time on appeal.”