One part of President Trump’s ongoing assault on the freedoms of speech and the press has involved the distortion of what First Amendment doctrine calls “public forums”—spaces the government has deliberately opened to the public or press for expression. During his first term, Trump restricted disfavored journalists from accessing White House grounds, barred disfavored news outlets from press “gaggles,” and revised credentialing rules to make reporters who needed access to the White House more reliant on executive grace. He also made a practice of blocking critics from his Twitter account—an account whose comment threads had become an important forum for debate about his policies.

In the first 16 months of his second term, Trump has leaned into this strategy even further, including by expelling the Associated Press from the White House press pool because it refused to call the Gulf of Mexico the “Gulf of America,” and by conditioning journalists’ access to the Pentagon on their signing a pledge that no self-respecting journalist would sign.

The First Amendment’s forum doctrine has served as a check on some of this. The courts restored the access of the journalists whom Trump expelled from White House grounds during his first term. The Knight Institute sued Trump over his practice of blocking critics from his Twitter account and won victories in the district court and court of appeals; the Supreme Court granted Trump’s cert petition but deemed it moot when former President Biden was inaugurated in January 2021. More recently, a district court sided with the AP in its challenge to its expulsion from the White House press pool, and another district court sided with The New York Times in its challenge to the policy restricting press access to the Pentagon. These rulings have helped protect the integrity of some of the forums in which speech important to our democracy takes place. They’ve limited the government’s ability to marginalize dissent and criticism, and they’ve impeded the government from transforming open forums into tools of propaganda.

But these lawsuits have also exposed the limitations of First Amendment litigation. There is sometimes uncertainty and disagreement about which spaces should be considered forums under the First Amendment. Enforcing the public forum doctrine in courts can take years, and the courts aren’t always willing or able to restore the status quo ante while litigation proceeds. For example, the Associated Press won a decisive victory in the district court but its access to the White House press pool hasn’t been fully restored, and meanwhile the Trump administration has appealed to the U.S. Court of Appeals for the District of Columbia Circuit. Also, government officials can subvert litigation victories by reshaping their policies without reforming them, which is essentially what the Pentagon did after The New York Times’ successful suit. (The Times recently filed a second complaint.) And while First Amendment doctrine imposes constraints on the government once a forum has been opened to the public, courts have been reluctant to impose on the government any obligation to make forums available in the first place (beyond the narrow category of “traditional” public forums), or to keep them open once they’ve been made available. As a result, news organizations and others have sometimes hesitated to sue over unconstitutional viewpoint discrimination out of fear that a victory might result in the government shutting down the forum altogether, which does sometimes happen.

Congress should step in to protect some of the public forums that are especially important to our democracy. It can do this by requiring the executive branch to maintain these forums and to respect a rule of viewpoint neutrality in regulating access to them. Congress should require the White House and every federal agency to dedicate government facilities to press pools whose membership is determined according to viewpoint-neutral criteria. It should require each agency to have senior officials take questions from the press pool on a regular basis. It should give members of the press pool the right to sue if they are excluded from a press pool on an impermissible basis, and it should provide for expedited judicial consideration of these suits. Congress could extend analogous statutory protection to public forums created by government officials’ and agencies’ social media accounts.

Congress has the authority to impose these mandates. Through the Freedom of Information Act and the Administrative Procedure Act—to take two of the most obvious examples—Congress has already mandated that the executive branch comply with rules meant to promote government transparency and accountability and an informed, democratically empowered public. The constitutionality of these statutes is well-settled. The mandates we have in mind would serve the same purposes and be predicated on the same congressional powers. Congress’s enumerated powers relating to the military would provide an additional basis for imposing these kinds of mandates on the Pentagon and the intelligence agencies. Article IV’s Property Clause would provide an additional basis for regulating social media accounts used by executive officials as extensions of their offices.

We think a requirement that agency officials take questions from statutorily mandated press pools would be on solid constitutional footing, too. Many provisions of federal law require executive officials to document their activities, prepare reports for Congress, and make various kinds of records available to the public. FOIA requires the government to disclose records in response to requests from the public—and that statute’s constitutionality is no longer seriously contested even by those who take the broadest view of executive power. Notably, FOIA requires the executive to share even records it would prefer not to share, whereas our proposed mandates would leave it to the executive to decide what to say in statutorily mandated forums. In that sense, at least, our proposed mandates are less intrusive than FOIA is.

Congress has the authority to impose these kinds of mandates on White House officials as well. It has already imposed record-keeping requirements on the president—that’s what the Presidential Records Act is all about—and those requirements are constitutional, as Judge Bates explained just a few weeks ago, writing “While the presidency is a singularly important institution, that gravity does not free it from modest constraint. Quite the opposite.” In reaffirming the constitutionality of the Presidential Records Act, Judge Bates observed that presidents had complied with the Act “without complaint” for 50 years. The White House press pool has an even longer history, and for more than 40 years its membership has been determined by the press itself, through the White House Correspondents’ Association. Article II should not be construed to bar Congress from requiring the president to respect and sustain an institution that plainly serves democratic interests and that presidents have respected and sustained “without complaint” for decades.

First Amendment doctrine isn’t enough, on its own, to prevent an administration that is committed to distorting expressive spaces that are important to our democracy from realizing its ambitions. We need legislation, too, including the kinds of mandates we describe here.