Protect Democracy, the Yale Law School Media Freedom of Information and Access Clinic, and Davis Wright Tremaine LLP 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’s amended complaint alleges that 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 to punish the owner of the Washington Post;
- directing DOJ enforcement actions against media companies including CNN’s parent company;
- 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. In at least three instances, the federal government has appeared to carry out the President’s threats.
The complaint also includes allegations related to the President’s threatened and actual revocations of security clearances of media commentators and White House press credentials, including those of PEN America member and CNN reporter Jim Acosta.
On March 24, the U.S. District Court for the Southern District of New York ruled that the case will move forward. Judge Lorna Schofield wrote that PEN America plausibly demonstrated that the government violated the First Amendment in two ways—chilling free speech and retaliating against speech—by threatening the White House press corps, particularly Mr. Acosta, over its coverage of the President, and threatening to revoke the security clearances of former government officials who spoke out against the President in the press. Further information about the ruling is here, and the ruling itself is here.
Through these acts, we believe that 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 the attempted suppression is unsuccessful. And while major media companies have resources at their disposal to defend themselves from the President’s retaliatory acts, 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.
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