Simon Ateba v. Karoline C. Leavitt

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2024 Decided April 8, 2025
No. 24-5004
SIMON ATEBA,
APPELLANT
v.
KAROLINE C. LEAVITT, IN HER OFFICIAL CAPACITY AS PRESS
SECRETARY TO THE PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-02321)
Josh Dixon argued the cause for appellant. With him on
the briefs were Harmeet Dhillon, Jesse Franklin-Murdock, and
Eric Sell.
Steven A. Myers, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Joshua M. Salzman, Attorney.
Before: WILKINS and PAN, Circuit Judges, and ROGERS,
Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge PAN.
PAN, Circuit Judge: Simon Ateba is a journalist who seeks
preferred access to the White House Press Area with a special
press credential known as a “hard pass.” The White House
issues hard passes only to reporters who are accredited by
either the Supreme Court Press Gallery or a congressional press
gallery. That policy ensures that holders of hard passes are
bona fide journalists. The White House relies on the press
galleries of the Supreme Court and Congress to make that
determination because it has not established its own committee
to review the qualifications of journalists.
Ateba applied for membership in the Senate Daily Press
Gallery as a prerequisite to securing a hard pass. That
application is still under consideration. In the meantime, he has
accessed the Press Area with a daily pass that requires him to
wait for an escort to take him there. Ateba argues that the
White House Hard Pass Policy violates the First Amendment
because it burdens his access to the Press Area and conditions
fuller access on his accreditation by the Senate Daily Press
Gallery, which exercises unbridled discretion in determining
whom to certify and sets no deadline for adjudicating
applications. Because the Hard Pass Policy is both reasonable
and viewpoint neutral, we reject Ateba’s First Amendment
challenge.1
1 Ateba filed this appeal challenging the Hard Pass Policy on
January 4, 2024. Due to the change in administrations on January
20, 2025, the court ordered the parties to file supplemental briefs
regarding the status of the challenged Hard Pass Policy and whether
this appeal has become moot. Ateba’s supplemental brief states that
he still has not received a hard pass. The government’s supplemental
brief states that the case is not moot because the White House has not
“formally rescind[ed]” the requirement that “condition[s] eligibility

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I.
A.
The White House is the official residence of the President
of the United States. See 3 U.S.C. § 102; The White House
Building, https://perma.cc/FKC8-QA2S. It includes the
President’s private living quarters as well as government office
space. See Ateba v. Jean-Pierre, 706 F. Supp. 3d 63, 69
(D.D.C. 2023). The White House Press Area consists of the
briefing room, the press offices, and certain other locations in
and around the White House that are open to correspondents.
The Press Area is where journalists attend press briefings,
interview White House officials, and report on the day-to-day
activities of the administration.
The White House issues two types of passes that give
journalists access to the Press Area. A “hard pass” allows its
bearer to use an expedited security line and to enter the Press
Area without an escort. Reporters who do not have hard passes
may use a “day pass,” which requires reporters to “resubmit [a]
form for every day they plan to access the Press Area.” Ateba,
706 F. Supp. 3d at 70. Day-pass holders must wait for an escort
to take them from the White House gate to the Press Area,
which may take up to 45 minutes. Both types of pass holders
have the same privileges once they are inside the Press Area.
In May 2023, the White House announced that all hard
passes would expire by the end of July 2023, and that
correspondents seeking new hard passes would have to reapply
for a White House hard pass on accreditation by the congressional
and Supreme Court galleries.” Gov’t Suppl. Br. 3. In light of the
parties’ representations, we conclude that this case is not moot and
review the judgment of the district court based on the record before
us.

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under the terms of a revamped Hard Pass Policy. The White
House explained that it had revised its policy to “be consistent
with . . . prior administrations.” Ateba, 706 F. Supp. 3d at 71.
The White House also noted that the new policy would reduce
the number of passes in circulation, which would address
administrability issues and security risks.
The Hard Pass Policy requires “[a]ccreditation by a press
gallery in either the Supreme Court, U.S. Senate or U.S. House
of Representatives.” Ateba, 706 F. Supp. 3d at 71. Except for
two years, the White House has preconditioned hard passes on
a journalist’s certification by an outside body for over forty
years. See Sherrill v. Knight, 569 F.2d 124, 129 n.19 (D.C. Cir.
1977). A key purpose of the accreditation requirement is to
ensure that hard-pass holders are bona fide journalists. See,
e.g., id. (noting that “the applicant is required to have a pass to
the House and Senate galleries because this verifies the
‘professional credentials’ of the applicant”). The Hard Pass
Policy also requires applicants to be employed by a news
organization; to have a physical address, whether residential or
professional, in the greater Washington, D.C., area; to be
assigned to cover the White House on a regular basis; to have
accessed the White House at least once during the previous six
months for work or to have proof of employment within the last
three months to cover the White House; and to submit to an
investigation by the Secret Service, if necessary.
After the Hard Pass Policy went into effect, around 500
journalists lost their hard passes, including Simon Ateba.
Ateba is the White House correspondent for Today News
Africa, “a daily online news publication covering American
politics and relations between the United States and African
countries.” Ateba, 706 F. Supp. 3d at 70. He held a hard pass
from February 2021 through July 2023. Before that, he used
day passes to enter the Press Area for three years, from 2018 to

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2021. After Ateba’s hard pass expired due to the
implementation of the Hard Pass Policy, he went back to
accessing the Press Area with day passes. The record reflects
that he has never been denied a day pass when he sought one.2
In pursuit of a new hard pass, Ateba applied to the Senate
Daily Press Gallery for a press credential in June 2023. The
congressional press galleries are administered by a Standing
Committee of Correspondents, which has five members that
are elected by accredited members of the galleries. The
Standing Committee includes reporters from Fox News, The
Washington Post, The New York Times, and The Wall Street
Journal. According to the Governing Rules of the Senate Daily
Press Gallery, “[p]ersons desiring admission to the press
galleries of Congress shall make application in accordance
with” House and Senate rules that are “interpreted and
administered by the Standing Committee” “subject to the
review and an approval by the Senate Committee on Rules and
Administration.” J.A. 147. The Governing Rules further
provide that the Standing Committee “shall limit membership
in the press galleries to bona fide correspondents of repute in
their profession, under such rules as the Standing Committee
of Correspondents shall prescribe.” J.A. 147.3 In addition,
2 Ateba asserts in his supplemental brief that the Trump
Administration has denied him day passes. But that change in
circumstances is not in the record on appeal and we therefore may
not consider it. See, e.g., Rosewell v. LaSalle Nat’l Bank, 450 U.S.
503, 518 n.22 (1981).
3 A requirement that journalists be “of repute” has been in effect
since 1888 and has origins from before then. See Off. Cong.
Directory, 50th Cong. 160 (2d ed. 1888) [https://perma.cc/BH46-
VRA4] (applications for accreditation “shall be authenticated in a
manner that shall be satisfactory to the Standing Committee of
Correspondents, who shall see that the occupation of the gallery is

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under the Governing Rules, a member of the press galleries
must be a “full-time, paid correspondent” of a “news
organization”; “must reside in the Washington, D.C. area”;
and “must not be engaged in any lobbying or paid advocacy,
advertising, publicity or promotion work.” J.A. 24–25, 148.
The Rules do not include a deadline by which the Standing
Committee must adjudicate a membership application.
B.
With his application to become a member of the Senate
Daily Press Gallery still pending, Ateba filed suit against the
White House Press Secretary in the district court. As relevant
here, Ateba brought a facial First Amendment challenge to the
Hard Pass Policy.4 He asserted that the Hard Pass Policy is
unreasonable because it confers unbridled discretion on the
press galleries of the Supreme Court and Congress to determine
who should receive preferred access to the White House Press
Area.5 He further claimed that it was unreasonable for the
confined to bona-fide correspondents of reputable standing in their
business”).
4 Ateba also argued that the Hard Pass Policy was
unconstitutional as applied to him, and that the Secret Service’s
cancellation of his hard pass violated the Administrative Procedure
Act. Ateba does not renew those claims on appeal.
5 Although Ateba raises a facial challenge to the Hard Pass
Policy, it is permissible for him to focus on his application for
membership in the Senate Daily Press Gallery to support his
argument that the Policy confers unbridled discretion on external
credentialing bodies. In a typical facial attack, plaintiffs need to
establish “that no set of circumstances exists under which [the
challenged law] would be valid.” United States v. Salerno, 481 U.S.
739, 745 (1987). But in the context of a rule that “delegates overly
broad discretion to the decisionmaker,” plaintiffs may facially

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White House to require him to be accredited by another branch
of government before applying for a hard pass, and complained
that the press galleries imposed no timeframe or deadlines for
processing his membership application.
The district court granted the White House’s motion for
summary judgment. The district court concluded that Ateba
had suffered a cognizable First Amendment injury because
entering the Press Area with a day pass was more burdensome
than with a hard pass. It decided, however, that the White
House acted reasonably under the First Amendment when it
outsourced part of its press-credentialing process. The district
court also ruled that the Senate Daily Press Gallery did not
impermissibly exercise discretion in deciding who could
become a member of the gallery; and that extraordinary
procedural protections — such as requiring deadlines for
adjudicating membership applications — were not
constitutionally required.
Ateba filed a timely appeal. We have jurisdiction under
28 U.S.C. § 1291.
challenge the rule even though some applications of the rule “may be
constitutionally unobjectionable,” because “every application
creates an impermissible risk of suppression of ideas.” See Forsyth
Cnty. v. Nationalist Movement, 505 U.S. 123, 129, 133 (1992). Thus,
Ateba may bring a facial challenge based on his contention that the
Hard Pass Policy creates a risk of suppression of ideas by allowing
outside credentialing bodies to exercise unbridled discretion to
determine who may access the Press Area; and he may support that
argument with evidence that the Senate Daily Press Gallery exercises
unbridled discretion in its rules of admission.

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II.
The First Amendment limits the restrictions that the
government may impose on speech, including speech on
government property. Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., 473 U.S. 788, 799–800 (1985). Ateba asserts that
the Hard Pass Policy violates his First Amendment rights
because it burdens his access to the White House Press Area,
which is government property where speech occurs. He argues
that the Hard Pass Policy is unreasonable because it requires
him to seek a press credential from another branch of the
government that he does not want to cover, and allows an
outside credentialing body, such as the Senate Daily Press
Gallery, to exercise unbridled discretion in abridging his
speech. To support his argument that the Senate Daily Press
Gallery exercises such unbridled discretion, he points to: (1)
the gallery’s governing rule that limits membership to “bona
fide correspondents of repute in their profession,” J.A. 147; and
(2) the gallery’s failure to impose any deadline for its
processing of membership applications. We find his arguments
unpersuasive.6
6 Ateba also argues that the credentialing process of the Senate
Daily Press Gallery violates the unbridled discretion doctrine
because the Gallery’s membership decisions are not subject to
judicial review. He asserts that the Gallery should be required to
provide written reasons for the denial of a membership application
and complains that the Speech and Debate Clause precludes judicial
review. But Ateba failed to adequately preserve those claims for
appeal. Before the district court, he suggested only that the White
House outsourced credentialing in an “attempt . . . to immunize its
credentialing scheme from suit,” and claimed that the Hard Pass
Policy was “arbitrary and unreasonable” for requiring an outside
press credential. See Pl’s Combined Mem. Supp. Summ. J. &
Opposing Def’s Mot. Summ. J. 16, ECF No. 23; J.A. 156–57

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A.
As an initial matter, the government argues that Ateba’s
asserted constitutional harm is de minimis and therefore not
cognizable. Relying on out-of-circuit cases, the government
argues that withdrawing preferential access to government
property or providing less access for some reporters to cover
government officials does not implicate the First Amendment.
See ACLU of Md., Inc. v. Wicomico Cnty., 999 F.2d 780, 786
& n.6 (4th Cir. 1993); Balt. Sun Co. v. Ehrlich, 437 F.3d 410,
416, 418 (4th Cir. 2006). But the cases cited by the government
do not address facial First Amendment challenges to a
regulatory scheme, and instead consider claims of retaliation
for protected activity. Although the Fourth Circuit did
characterize the harms at issue in each case as “de minimis,” it
held that the government’s actions were insufficient to
constitute retaliation, and did not speak to what might
constitute a cognizable injury in the different context of a facial
First Amendment challenge. See ACLU of Md., 999 F.2d at
786 n.6 (“We merely find that these § 1983 plaintiffs suffered
no more than a de minimis inconvenience and that, on the facts
of this case, such inconvenience does not constitute cognizable
retaliation under the First Amendment.”); Balt. Sun, 437 F.3d
at 416 (“A plaintiff seeking to recover for retaliation must show
that the defendant’s conduct resulted in something more than a
(reiterating same claim at oral argument). That conclusory argument
was insufficient to put the district court on notice that he was
invoking the unbridled discretion doctrine to challenge the lack of
judicial review, in specific reliance on the Gallery’s failure to
provide written decisions and the barrier posed by the Speech and
Debate Clause. See United States v. Philip Morris USA, Inc., 396
F.3d 1190, 1195 (D.C. Cir. 2005) (“litigant does not properly raise
an issue by addressing it in a cursory fashion, with only bare-bones
arguments”); United States v. Miller, 799 F.3d 1097, 1108 (D.C. Cir.
2015).

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de minimis inconvenience to her exercise of First Amendment
rights.” (cleaned up)). It appears, then, that the government’s
theory is not well-supported by the cited precedents.
Nevertheless, the record does reflect that Ateba has
maintained access to the Press Area by using day passes. A
hard pass merely offers convenience, allowing him to enter
more quickly and without an escort, and relieving him of the
obligation to apply for day passes. The 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. See Sherrill, 569 F.2d at 130 (concerning
the denial of a hard pass for security reasons that resulted in
“exclusion . . . from White House press facilities”); Karem v.
Trump, 960 F.3d 656, 665 (D.C. Cir. 2020) (concerning a
“month-long loss of . . . White House access”). Furthermore,
the inconvenience of not having a hard pass that assures
preferential access differs significantly from the burden
imposed by licensing schemes that preclude some speakers
from using a forum altogether. See, e.g., City of Lakewood v.
Plain Dealer Publ’g Co., 486 U.S. 750, 769–70 (1988)
(concerning the grant of licenses to place newsracks on
government property).
Although the government’s argument has some force, we
need not resolve whether Ateba states a cognizable injury
under the First Amendment. See Ashwander v. Tenn. Valley
Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)
(“The Court will not ‘anticipate a question of constitutional law
in advance of the necessity of deciding it.’” (quoting Liverpool,
N.Y. & Phila. S.S. Co. v. Emigration Comm’rs, 113 U.S. 33, 39
(1885)). Even assuming that the lack of a hard pass is a First

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Amendment harm, the burdens imposed by the Hard Pass
Policy are not unconstitutional.7
B.
“[T]o evaluate government restrictions on purely private
speech that occurs on government property,” we first consider
the level of First Amendment scrutiny that should be applied.
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576
U.S. 200, 215 (2015). The level of scrutiny depends on the
type of forum for speech that has been created by the
government. See Boardley v. Dep’t of the Interior, 615 F.3d
508, 514 (D.C. Cir. 2010). “As a general principle, ‘the extent
to which the Government can control access [to a forum it owns
or controls] depends on the nature of the relevant forum.’”
Bryant v. Gates, 532 F.3d 888, 894 (D.C. Cir. 2008) (quoting
Cornelius, 473 U.S. at 800) (alteration in original).
Here, the parties dispute whether the Press Area is a
“nonpublic forum” or a “limited public forum.” In particular,
the government contends that the Press Area is “at most, a
nonpublic forum where the rule against unbridled discretion
does not apply.” Gov’t Br. 22, 26. The government asserts that
it has “‘far more leeway to regulate speech’” in a nonpublic
forum, id. at 26 (quoting Price v. Garland, 45 F.4th 1059, 1068
(D.C. Cir. 2022)); and that “‘[a]ll of the modern cases in which
the Supreme Court has set forth the unbridled discretion
doctrine have involved public fora,’” id. at 28 (quoting Griffin
v. Sec’y of Veterans Affs., 288 F.3d 1309, 1321 (Fed. Cir.
2002)). We agree with the government that the Press Area is a
7 Because we assume that Ateba has asserted a First Amendment
injury, we do not consider the government’s argument that Ateba’s
claims implicate only a “noncommunicative, preparatory step in the
production of speech” and therefore enjoy no First Amendment
protections. Gov’t Br. 21–22, 31.

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nonpublic forum, but we disagree with its claim that the
unbridled discretion doctrine is categorically inapplicable
there, see infra Part D.
A nonpublic forum is government property “that is not by
tradition or designation a forum for public communication,”
such as a government office building. Minn. Voters All. v.
Mansky, 585 U.S. 1, 11 (2018) (quoting Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).
Although the government is not required to open such spaces
for any speech at all, the government creates a “nonpublic
forum” when it provides “‘selective access for individual
speakers.’” Bryant, 532 F.3d at 895 (quoting Ark. Educ.
Television Comm’n v. Forbes, 523 U.S. 666, 679 (1998)). For
example, in Cornelius, the Supreme Court held that the
government’s Combined Federal Campaign charity drive was
a nonpublic forum, because the government limited inclusion
on the list of approved charities to “appropriate” organizations
that had to seek permission to participate. 473 U.S. at 804.
Similarly, we have held that United States Capitol buildings are
nonpublic forums, even though members of the public
regularly enter for the purpose of expressive activity, because
entry is still “strictly regulated” and the communications are
“scheduled and controlled.” United States v. Nassif, 97 F.4th
968, 976–77 (D.C. Cir. 2024) (cleaned up).
By contrast, a “limited public forum” is government
property that is made available for “use by certain groups or
dedicated solely to the discussion of certain subjects.” Price,
45 F.4th at 1068 (quoting Pleasant Grove City v. Summum, 555
U.S. 460, 470 (2009)). Such a forum is generally open to the
designated groups or for the designated purpose of discussing
particular topics. See Christian Legal Soc’y Chapter of the
Univ. of Cal., Hastings Coll. of L. v. Martinez, 561 U.S. 661,
681 (2010) (“a defining characteristic” of limited public

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forums” is the government’s authority to “reserve them for
certain groups” (cleaned up)); Perry, 460 U.S. at 47–48 (noting
that a limited public forum would be open only to groups of
“similar character”). For example, a student activity fund at
the University of Virginia that purported to provide funds for
all extracurricular activities that were “related to the
educational purpose of the University” was deemed a limited
public forum. Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 823–26 (1995) (cleaned up).
We conclude that the White House Press Area is a
nonpublic forum. To the extent the White House is generally
open to the public — for tours, for example — the restrictions
on entry are similar to those imposed at the U.S. Capitol, which
is a nonpublic forum. See Nassif, 97 F.4th at 977 (noting
restricted hours and mandatory security screening of persons
and items entering the Capitol buildings). The Press Area has
its own set of restrictions. The purpose of the Press Area is to
provide “press facilities for correspondents who need to report
therefrom,” Sherrill, 569 F.2d at 129, thereby enabling select
journalists to attend briefings by the Press Secretary and to
gather information about the administration. Access to the
Press Area is limited to journalists who satisfy the White
House’s admission criteria and secure either a hard pass or a
day pass to enter, subject to space availability. In Sherrill, we
acknowledged that entry to the Press Area may be selectively
granted, noting that the government is entitled to “exercis[e]
expert judgment” that may “be subjective in nature” when
deciding who may be barred from the Press Area for security
reasons. Id. at 130. Although Sherrill predated modern forum
analysis, its description of the Press Area fits the definition of
a nonpublic First Amendment forum. Because the White
House “strictly regulate[s]” entry to the Press Area, and
briefings by the Press Secretary are “scheduled and

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controlled,” the Press Area is a nonpublic forum. See Nassif,
97 F.4th at 976–77 (cleaned up).
Ateba attempts to characterize the Press Area as a limited
public forum by arguing that it is open to a class of journalists
— i.e., all reporters who cover the White House. But his
argument fails to address the limits that the White House
imposes on who may be admitted to the Press Area. Because
the Press Area is not generally open to a class of speakers (i.e.,
all White House correspondents), we have no trouble
concluding that it is a nonpublic forum.
C.
As a nonpublic forum, access to the White House Press
Area “can be restricted as long as the restrictions are”
viewpoint neutral and reasonable. Cornelius, 473 U.S. at 800.
The purpose of the forum is central to this analysis, because the
government may “reserve the [nonpublic] forum for its
intended purposes, communicative or otherwise, as long as the
regulation on speech is reasonable and not an effort to suppress
expression merely because public officials oppose the
speaker’s view.” Perry, 460 U.S. at 46. “Control over access
to a nonpublic forum can be based” even “on subject matter
and speaker identity so long as” it meets the requirements of
reasonableness and viewpoint neutrality. Cornelius, 473 U.S.
at 806.
The restrictions imposed by the Hard Pass Policy easily
pass constitutional muster. First, the Hard Pass Policy is
reasonable. To meet that requirement, a restriction “need not
be the most reasonable or the only reasonable” restriction.
Cornelius, 473 U.S. at 808. “[R]easonableness may be
established by evidence in the record or even by a
commonsense inference.” Price, 45 F.4th at 1072 (cleaned up).

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The Supreme Court gives the government substantial leeway
to regulate access to a nonpublic forum and has upheld a range
of restrictions that were justified in light of the forum’s
purpose. See, e.g., Forbes, 523 U.S. at 682 (reasonable for a
public television broadcaster to exclude an independent
political candidate from a candidate debate because he had
“generated no appreciable public interest”); Cornelius, 473
U.S. at 808–09 (reasonable to exclude certain legal defense and
political advocacy organizations from the Combined Federal
Campaign charity drive because donations to other charity
causes were “more beneficial” and better served the purpose of
the charity drive).
Here, the White House has opted to issue hard passes only
to reporters who are accredited by either the Supreme Court
Press Gallery or a congressional press gallery. That policy
allows the White House to rely on the credentialing decisions
of established press galleries, which have formed committees
of journalists that evaluate the qualifications of reporters who
seek to enter nonpublic areas to cover the work of the
government. The White House does not have a press gallery
and has no comparable vetting system in place. It is surely
reasonable for the White House to open the Press Area only to
bona fide journalists and to revert to its long-established
practice of using press-gallery membership as a measure of a
reporter’s professional standing. Although Ateba objects to
being evaluated by fellow journalists whom he claims are his
“competitors,” Ateba Br. 18, it is reasonable to allow
established members of the profession to make the
credentialing decision. Moreover, the White House’s stated
reasons for reimposing the accreditation requirement were
reasonable — i.e., to conform with the policies of previous
administrations, and to implement a stricter set of guidelines
that would reduce the security risks and administrative burdens
associated with a high number of hard passes. We have no

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basis to question such discretionary policies that reasonably
limit access to a nonpublic forum, consistent with its purpose.8
Second, the Hard Pass Policy is viewpoint neutral.
Viewpoint discrimination is an “egregious form of content
discrimination,” which occurs when a government regulation
“targets not subject matter, but particular views taken by
speakers on a subject.” Rosenberger, 515 U.S. at 829. The
Hard Pass Policy does not reference viewpoints in any way,
and Ateba does not allege that either the White House or the
Senate Daily Press Gallery denies press credentials based on
the content of a correspondent’s reporting.
Ateba generally argues that the Hard Pass Policy is “per se
viewpoint discriminatory” because it “fail[s] to impose
meaningful guardrails against viewpoint discrimination.”
Ateba Reply Br. 7–8. Although other circuits have concluded
that the exercise of unbridled discretion to limit speech is per
se viewpoint discrimination, we have not joined them. See,
e.g., Kaahumanu v. Hawaii, 682 F.3d 789, 806 (9th Cir. 2012);
8 This case is distinghishable from our precedents in Sherrill and
Karem, which held that the White House violates due process when
it denies or suspends a journalist’s hard pass without providing
adequate procedures to challenge the denial or prior notice about the
grounds for the suspension. See Sherrill, 569 F.2d at 128, 130
(requiring White House to provide notice, opportunity to rebut, and
a written decision when denying a journalist’s hard pass application,
and to publish or make publicly known the standard it employs for
determining whether a journalist will obtain a press pass); Karem,
960 F.3d at 667 (before “punishing” a journalist for misbehavior by
suspending his hard pass for thirty days, White House was required
to provide fair notice of the “magnitude of the sanction that might be
imposed” for misbehavior (cleaned up)). Ateba does not raise a due
process claim and we therefore address only the reasonableness of
the Hard Pass Policy under the First Amendment.

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Child Evangelism Fellowship of Md., Inc. v. Montgomery Cnty.
Pub. Schs., 457 F.3d 376, 384 (4th Cir. 2006); Polaris
Amphitheater Concerts, Inc. v. City of Westerville, 267 F.3d
503, 508–09 (6th Cir. 2001). Instead, we have held that a
violation of the unbridled discretion doctrine is generally
unreasonable under the First Amendment. Am. Freedom Def.
Initiative v. Wash. Metro. Area Transit Auth. (AFDI), 901 F.3d
356, 372 (D.C. Cir. 2018). We therefore consider Ateba’s
unbridled-discretion argument within the framework of
reasonableness.
D.
Ateba’s primary argument is that the Hard Pass Policy
violates the First Amendment because it delegates
credentialing to the press galleries of the Supreme Court and
Congress, and those galleries can arbitrarily limit press activity.
Specifically, Ateba argues that the Senate Daily Press Gallery
has “unbridled discretion” to grant press credentials only to
those it considers “bona fide correspondents of repute.” J.A.
147. Ateba asserts that the “of repute” requirement is unduly
broad and essentially standardless. And the Hard Pass Policy
is unconstitutional, he claims, because it relies on the gallery’s
arbitrary credentialing decisions.
In the context of a licensing or permitting scheme that
controls access to a public forum, we have held that a
restriction is “not reasonable” under the First Amendment if “it
provides [the decisionmaker] with unbridled discretion” to
suppress expression — that is, when the rule “is so broad as to
provide . . . no meaningful constraint upon [the government’s]
exercise of the power to squelch [speech].” AFDI, 901 F.3d at
363, 372; see also Lakewood, 486 U.S. at 755; Forsyth Cnty. v.
Nationalist Movement, 505 U.S. 123, 133 (1992). By contrast,
a rule that “is capable of reasoned application . . . does not

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confer unbridled discretion upon” the government. AFDI, 901
F.3d at 372. As we noted in Boardley, “[i]t is not fatal to . . .
regulations that they endow [] officials with some measure of
discretion.” 615 F.3d at 517. Rather, regulations must be
“reasonably specific and objective, and . . . not leave the
decision ‘to the whim of the administrator.’” Thomas v. Chi.
Park Dist., 534 U.S. 316, 324 (2002) (quoting Forsyth Cnty.,
505 U.S. at 133)).
The government argues that we need not entertain Ateba’s
unbridled discretion claim because the White House Press Area
is a nonpublic forum, and the Supreme Court has applied the
unbridled discretion doctrine to protect expression only in
public forums. But just because cases like Lakewood and
Forsyth County considered local ordinances that affected
speech in public forums does not mean that their reasoning has
no traction in a nonpublic forum. Although the government
certainly has more discretion to impose restrictions in a
nonpublic forum, such restrictions still must be reasonable in
light of the forum’s purpose, see supra Part C. And we have
held that the exercise of unbridled discretion to deny access to
a nonpublic forum is unreasonable. See AFDI, 901 F.3d at 364,
372. Here, Ateba argues that a credentialing body has wielded
unchecked power to restrict a journalist’s entry to the White
House Press Area. We cannot agree with the government that
he has no First Amendment claim merely because the Press
Area is a nonpublic forum.
Turning to the merits, we consider Ateba’s contention that
the “of repute” standard injects unbridled discretion into the
credentialing process because it allows the Standing
Committee to make arbitrary and unconstrained membership
decisions that ultimately restrict his access to the White House
Press Area. We are unpersuaded. Ateba’s argument
mischaracterizes the “of repute” standard by isolating it and

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divorcing it from the other criteria that the Standing Committee
applies to grant membership in the Senate Daily Press Gallery.
The rule plainly states, in relevant part, that membership is
reserved for “bona fide correspondents of repute in their
profession, under such rules as the Standing Committee of
Correspondents shall prescribe.” J.A. 147 (emphasis added).
Under the provision’s own terms, the evaluation of a
journalist’s “reputation” must be informed by the other rules
prescribed by the Standing Committee. The Governing Rules
mandate, inter alia, that credentialed correspondents work full-
time for a news organization, reside in the Washington, D.C.,
area, and not engage in lobbying. When evaluating whether a
rule confers unbridled discretion on a government
decisionmaker, we must “presume any narrowing construction
or practice to which [the regulation] is fairly susceptible.”
Lakewood, 486 U.S. at 770 n.11 (cleaned up). The Standing
Committee’s Governing Rules provide such a “narrowing
construction” and make the “of repute” criterion capable of
“reasoned application.” AFDI, 901 F.3d at 372.
Properly read, 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. In Lakewood, for example, the
city ordinance at issue “contain[ed] no explicit limits on the
mayor’s discretion [to grant permits for newspaper racks],” and
he was required to do nothing more than say that “it is not in
the public interest” when denying a permit. 486 U.S. at 769.
There was no “textual incorporation, binding judicial or
administrative construction, or well-established practice” that
limited the mayor’s choices in any way. Id. at 770. Similarly,
in Forsyth County, the Supreme Court held that a county
ordinance that allowed an administrator to set a permit fee for
“any activity on public property,” based only on “his own
judgment of what would be reasonable,” violated the unbridled

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discretion doctrine. 505 U.S. at 131–32. Again, there were “no
articulated standards either in the ordinance or in the county’s
established practice” that limited the administrator’s power to
charge fees. Id. at 133.
In contrast to the regulations at issue in Lakewood and
Forsyth County, the Senate Daily Press Gallery’s Governing
Rules provide concrete guidelines that cabin the Standing
Committee’s discretion when it applies the “of repute”
standard. Ateba takes the “of repute” requirement out of
context and ignores that it is subject to “such rules as the
Standing Committee shall prescribe.” The cross-referenced
Governing Rules provide “standards” that “guid[e] the hand of
the . . . administrator.” Forsyth Cnty., 505 U.S. at 133. The
Standing Committee therefore does not exercise “unbridled
discretion” in making press-gallery membership decisions.
E.
Ateba also asserts that the First Amendment requires the
Senate Daily Press Gallery to set timelines for processing
press-credentialing applications so that he and other applicants
may more promptly obtain a hard pass. He claims that any
credentialing scheme that allows a decisionmaker unlimited
time to process applications violates the unbridled discretion
doctrine because it allows the decisionmaker to indefinitely
“censor” the applicants. Ateba Br. 33. That theory fails,
however, because the processing delays at the Senate Daily
Press Gallery do not “censor” Ateba — the record shows that
he is still able to enter the White House Press Area with a day
pass while he awaits the adjudication of his press-gallery
application. Thus, even if Ateba’s access to the Press Area is
burdened, he has not established that any delay in procuring
accreditation by the Gallery renders the Hard Pass Policy

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constitutionally unreasonable because the Policy still allows
him to access the First Amendment forum.
In any event, neither the Supreme Court nor this court has
ever held that processing deadlines are constitutionally
required in the context of a content-neutral licensing scheme.
In Boardley, the appellant claimed that park officials exercised
“overly broad discretion” in granting or denying permits to
distribute printed matter in national parks because the officials
were not required to process the permits within a “specific time
period.” 615 F.3d at 518. We rejected that argument, noting
that “[m]ost circuits have held content-neutral licensing
schemes need not contain explicit timeframes for processing
permit applications”; and that the Supreme Court has imposed
“extraordinary procedural safeguards” — like processing
deadlines — only on “content-based schemes.” Id. (citing
Freedman v. Maryland, 380 U.S. 51, 59 (1965), and Thomas,
534 U.S. at 322–23). Indeed, the Court in Thomas expressly
noted that lesser procedural protections are sufficient where
content-based censorship is not an issue, and the government
merely exercises “traditional” authority to “ensure the safety
and convenience of the people,” as a means of “safeguarding
. . . good order.” 534 U.S. at 323 (cleaned up). The Hard Pass
Policy, which is intended to decrease the number of hard passes
in circulation for administrative and security purposes, is the
type of “traditional” exercise of government authority that does
not trigger heightened procedural protections.9
9 Ateba’s reliance on City of Littleton v. Z.J. Gifts D-4, L.L.C.,
541 U.S. 774, 782–83 (2004), is misplaced. That case concerned
prompt judicial review of the denial of an “adult business” license,
where securing a license determined whether the expressive activity
could happen at all. Id. Here, as noted, Ateba has regular access to
the Press Area with day passes, which makes the extraordinary
safeguard of an administrative processing deadline for his Senate
Daily Press Gallery application unnecessary.

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* * *
In sum, we conclude that the White House Hard Pass
Policy does not violate the First Amendment. Assuming that
Ateba’s loss of preferential access to the Press Area implicates
the First Amendment at all, his rights have not been
impermissibly burdened because the White House’s reliance
on an outside credentialing body is both reasonable and
viewpoint neutral. Moreover, the role played by the Senate
Daily Press Gallery in the credentialing process does not inject
“unbridled discretion” into the process because its membership
decisions are guided by the concrete standards enumerated in
its Standing Committee Governing Rules; and the First
Amendment does not require the gallery to set a deadline for
the adjudication of membership applications. We therefore
affirm the judgment of the district court.
So ordered.

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