Judge Permits MFIA Clinic First Amendment Case to Proceed

A federal judge in New York has ordered a First Amendment lawsuit filed by Yale’s Media Freedom and Information Access Clinic (MFIA) against President Donald Trump to proceed into discovery. The lawsuit brought on behalf of the literary organization PEN America accuses the President of violating the First Amendment by using his official powers to punish journalists whose work he dislikes. Rejecting the President’s motion to dismiss the case, U.S. District Court Judge Lorna Schofield held that MFIA’s complaint stated a valid constitutional claim and that PEN America had standing to assert it. Protect Democracy and the law firm Davis Wright Tremain are co-counsel with MFIA on the case.

The lawsuit filed in late 2018 contends that President Trump has illegally retaliated  against news outlets like CNN, NBC, and the Washington Post for their reporting on the Administration and has engaged in a pattern of conduct with the intent and effect of chilling speech the President disfavors. The President asked the court to throw out the claims on the grounds that the actions complained about did not amount to a constitutional violation, and that PEN America had suffered no direct injury and thus had no standing to object to the President’s conduct. The court rejected both arguments.

“Plaintiff has constitutional standing to pursue First Amendment claims against defendant’s practice of 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 and revoking or threatening to revoke the security clearances of former government officials whose commentary he dislikes,” Schofield wrote in her ruling.

The lawsuit notes that on the day after the Democrats won a majority of seats in the House of Representatives in the 2018 midterm elections, the White House revoked press access for CNN reporter (and PEN member) Jim Acosta after the President became upset with a particular line of questioning by Acosta. Both before and after this action, the President threatened other journalists with a denial of access, and at one point urged the FCC to revoke NBC’s licenses because of its reporting, according to the lawsuit.

While a federal judge in Washington (in a separate lawsuit) ordered the White House to reinstate Acosta’s credentials, White House Press Secretary Sarah Huckabee Sanders issued a set of guidelines threatening consequences to other White House reporters if they engaged in similar conduct. “The press secretary indeed e-mailed the entire press corps to inform them of new rules of conduct and to warn of further consequences, citing the incident involving Mr. Acosta,” Schofield wrote. “These facts plausibly allege that a motivation for defendant’s actions is controlling and punishing speech he dislikes.”

Judge Schofield found that these retaliatory actions and threats cause two types of First Amendment injury: They directly chill the speech of those whose access is denied, and they deprive others of the right to receive the speech of journalists whose ability to cover the Administration has been impeded. 

The court found similar injury to PEN America and its members from the President’s actions in revoking the security clearances of former government officials who were acting as sources for news outlets and making comments the President found objectionable, and from the President’s threats to revoke the security clearances of others who had critiqued him in the media. “Defendant has plausibly threatened that, should the officials continue to provide critical commentary in the press, their security clearances would be jeopardized and revoked,” Schofield wrote in her opinion. 

The judge’s opinion refusing to dismiss the case strongly endorses the suit’s allegation that the First Amendment protects a right to receive information as well as the right to speak, according to the clinic.

MFIA is a student clinic at Yale Law School dedicated to increasing government transparency and advancing the public’s right of access to information.

By Leah Ferentinos