Landmark First Amendment lawsuit against President Trump will proceed

The federal court ruling in favor of PEN America is a blow to Trump's retaliation against media companies, journalists.

This statement was originally published on pen.org on 24 March 2020.

Today a federal court ruled against President Trump in a lawsuit that claims he has used government power to retaliate against media coverage and reporters he dislikes in violation of the First Amendment. Specifically, the court denied a government motion to dismiss the case and will allow it to go forward on allegations that President Trump has retaliated against the White House press corps and certain holders of security clearances who work as media commentators based on their First Amendment-protected speech.

PEN America, with counsel Protect Democracy, the Yale Law School Media Freedom of Information & Access Clinic, and Davis Wright Tremaine, filed the landmark lawsuit to stop President Trump’s campaign of censorship against the press. The U.S. District Court for the Southern District of New York rejected the president’s bid to dismiss the case, allowing it to proceed to the discovery phase.

SUZANNE NOSSEL, CEO of PEN AMERICA, the plaintiff in the case, issued the following statement:

“It’s hard to think of a moment in American history in which unvarnished, accurate news reporting has mattered more than it does now. This decision is a victory not just for PEN America and our own writers, but also for the journalists and media outlets doing the vital, risky work of keeping us all informed. But above all, it is a win for all individuals who depend on a free press to dig out the facts and hold leadership accountable without fear of reprisal. We sued the president because we believe the First Amendment prohibits him from retaliating against speech he dislikes. We are grateful that this essential suit can move forward, vindicating the rights of all those who rely on a free press.”

JENNIFER EGAN, PRESIDENT of PEN AMERICA, issued the following statement:“PEN America is profoundly grateful for the court’s timely decision. Though we filed our lawsuit more than a year ago, the Trump administration’s punitive stance toward the press has continued unabated, with corrosive results for truth, fact, our democracy, and – most recently – public health.”

KRISTY PARKER, COUNSEL for PROTECT DEMOCRACY, one of the organizations representing PEN America in the lawsuit, issued the following statement:

“The president can take to Twitter to complain all he wants about media coverage, but he abuses his power and violates the Constitution when he uses his office to punish members of the media. This is not North Korea – we don’t allow our politicians to control what the press says or punish the media for coverage that Dear Leader doesn’t like. Just the opposite – we rely on the media to hold the powerful accountable to the people. It’s important for all Americans that the press can do their jobs freely.”

The lawsuit was filed by Protect Democracy and co-counsel on behalf of PEN America, a leading organization of writers and literary professionals. The lawsuit claims that President Trump has violated the First Amendment rights of PEN America and its members through his threats to use – and actual use of – government power to punish the speech of those he perceives as critics in the media.

The plaintiffs argued that under the First Amendment’s protection for freedom of speech, President Trump can express his own views and criticize journalists and media organizations, but he cannot issue credible threats or deploy government power to retaliate against the media for its coverage. As laid out in the complaint, the president has in at least five situations used or threatened to use the regulatory and enforcement powers of government to punish the speech of journalists. He has:

Initiated a government review to raise postal rates to punish the owner of the Washington Post;
Directed DOJ enforcement actions against media companies, including CNN’s parent company Time Warner;
Interfered with White House press access;
Threatened to revoke broadcast licenses; and
Revoked the White House press credentials and security clearances of media commentators.

The court granted the government’s motion to dismiss on claims related to the first four situations, finding that the plaintiffs lack standing to sue, but allowed the case to go forward on the claims related to press credentials and security clearances. The plaintiffs are asking the court to issue a declaratory judgment – a ruling that the president’s use of government power to punish the press violates the First Amendment. A ruling in favor of the plaintiffs could have far-reaching consequences for a president who has made a habit of retaliating against his media critics, and for future presidents who might seek to escalate attacks on the press.

The government had argued that the plaintiffs lacked standing to sue and failed to state a legal claim. Today’s ruling held that the plaintiffs can pursue claims for declaratory relief based on allegations of retaliation against the White House press corps and holders of security clearances.

The case will now move into discovery, where plaintiffs will be able to obtain documents from the government to substantiate its claims that President Trump has sought to use the regulatory state to punish media he does not like.

Read more about the case here: https://pen.org/pen-america-v-trump/