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First Amendment News 247.1: PEN America's Retaliation Lawsuit Against President Trump to Proceed

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PEN America recently put out the following press release:

[Earlier this week] 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.

Kristy Parker (counsel for Plaintiffs) (credit: Lawfare)

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.

PEN's Complaint

According to the press release, the complaint alleged the following five claims, arguing that the President had:

  • 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.

Read the complaint.

Read the amended complaint.

Counsel for Plaintiffs: Kristy Parker (lead counsel) and David A. Schulz, John Langford, Ian Bassim, Robert Corn-Revere, Ronald London, and Chelsea T. Kelly (co-counsel). 

The Court's Opinion

Judge Lorna Schofield

An opinion by Federal District Judge Lorna Schofield the court, among other things, held:

Concerning Article III standing:

  • "Plaintiff has constitutional standing to pursue First Amendment claims against Defendant’s practice of (i) selectively barring access to the White House press corps, including by revoking or threatening to revoke press credentials, due to hostility to the reporters’ speech (the 'Press Corps Claim'), and (ii) revoking or threatening to revoke the security clearances of former government officials whose commentary he dislikes (the 'Security Clearance Claim')."
  • "Plaintiff does not have standing to challenge Defendant's alleged threats to revoke broadcast licenses, the executive order on postal rates, the directive to challenge the AT&T-Time Warner merger or regulatory threats against internet companies."
  • "Plaintiff has associational standing with respect to the Press Corps Claim, but not the other challenged conduct.  . . . Plaintiff has satisfied the two disputed elements for associational standing: the Complaint pleads that at least one named member has individual standing and that no individual members are required to participate in the Press Corps Claim. . . . Plaintiff has direct organizational standing to bring the Press Corps Claim and the Security Clearance Claim, but not the remaining claims. . . . Plaintiff has organizational standing as to the Press Corps Claim. Defendant's actions have plausibly chilled the White House press corps' speech, the questions they ask Defendant and the reporting they consequently are able to publish. The chilling impeded Plaintiff's right to receive information."

Concerning the diversion of resources claim:

  • "Plaintiff's main theory of direct injury — that it has been injured because Defendant has 'forced [Plaintiff] to divert significant resources previously dedicated to for expression overseas to responding to Defendant's actions at home' — is unpersuasive for all remaining claims."

Concerning retaliation:

  • "Defendant's conduct gives rise to a retaliation claim. Defendant only began considering whether to revoke the security clearances after several officials spoke out critically about him. These allegations evince that Defendant's motivation was to punish the officials' past speech and to deter the officials' media speech going forward."

Concerning injunctive relief:

  • "The surviving claims may only proceed as claims for declaratory, and not injunctive, relief."

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