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PEN America v. Donald J. Trump

Protect Democracy and the Yale Law School Media Freedom of Information and Access Clinic are representing PEN America, a leading organization of writers and literary professionals, in a lawsuit against President Trump for violating the First Amendment rights of journalists through his threats to use – and use of – government powers to punish the speech of his media critics.

PEN America recognizes the fundamental role a free press plays in maintaining democracy and is bringing this suit to enforce the First Amendment’s protection against government efforts to suppress freedom of the press. We are seeing in other countries how governments erode democracy by punishing and stifling the free press; PEN America is acting now out of a duty to prevent the silencing of speech and the decline of democracy in this country.

As the complaint lays out, President Trump has used, or threatened to use, the regulatory and enforcement powers of government to punish the speech of journalists in at least four ways: initiating a government review to raise postal rates; directing DOJ enforcement actions; interfering with White House press access; and threatening to revoke broadcast licenses. In every instance, President Trump first expressed his animus toward media entities for their coverage of him and then threatened government retaliation. For at least three of these, the federal government has appeared to carry out the President’s threats.

For example, the government pursued President Trump’s threats to raise Amazon’s postal rates with a recent proposal to do just that, a threat-turned-action born out of the President’s animus toward the Washington Post, which shares its owner with Amazon. In another example, the Department of Justice followed President Trump’s threats to target CNN for its coverage with a lawsuit to block the merger between CNN’s parent company and AT&T. In a third example, the White House staff followed President Trump’s threats to revoke the White House press credentials of reporters whose coverage of him he dislikes by barring a reporter from a White House event.

Through these acts, the President has created a credible risk of retaliation to all journalists who might write accurately, but critically, about him or his Administration, endangering the free exchange of ideas and information. While journalists have courageously continued to cover the President in spite of the risk of harm to themselves, their careers, or the general profession of journalism, the First Amendment prohibits government action to suppress speech, even if it the attempted suppression is unsuccessful. And while major media companies have resources at their disposal to defend themselves from the President’s retaliatory act, independent and minority community journalists, who are no less courageous, may be more vulnerable to self-censorship.

It is the role of the judicial branch to enforce the First Amendment’s protections for our free press, and PEN America has stepped forward on behalf of its members to ask a court to stop President Trump’s First Amendment violations.

Press inquiries: mriggio@pen.org.

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