Tuesday, October 16, 2018


MFIA Clinic Involved in First Amendment Lawsuit Against President Trump

PEN America, the leading national organization representing writers and literary professionals and defending free expression, filed a lawsuit on October 16, 2018, against President Donald J. Trump for using the powers of the federal government to retaliate against journalists and media outlets he finds objectionable, in violation of the First Amendment. PEN America is represented in the case by Yale Law School's Media Freedom and Information Access Clinic and the nonpartisan nonprofit Protect Democracy.

The filing asserts that, while President Trump is free to express his own views critical of journalists and media outlets, his use of the regulatory and enforcement powers of government to punish the press for criticism of him is unconstitutional. The complaint, filed in United States District Court for the Southern District of New York, asks the court to enter a declaratory judgment that the President’s retaliatory actions violate the First Amendment and enjoin the President from directing any employee or agency of the federal government to take any action against the press in retaliation for coverage the President views as hostile.

The complaint makes reference to incidents that it argues were intended to make clear to writers, reporters, and commentators that if they criticize the President, they or the media entities they represent could face reprisals by the government. These incidents include:

  • The Department of Justice’s antitrust enforcement action against the merger of CNN’s parent company, Time Warner, with AT&T, coming in the wake of credible threats by the President to retaliate against CNN’s coverage of him and his Administration;

  • The President’s Executive Order to the U.S. Postal Service to examine raising postal rates on Amazon, founded and run by Jeff Bezos, following the President’s threats to retaliate against coverage that the President disapproved of by the Washington Post, which Jeff Bezos owns. A retaliatory action that led, on October 11, 2018, to the U.S. Postal Service announcing proposed rate increases, including a proposed 12-percent increase for the Parcel Select service used by Amazon;

  • The President’s threats to revoke White House press credentials, which were followed by directing the removal of a White House correspondent from a press event covering the President, in retaliation for editorial decisions that reporter had made.

  • The President’s threats to revoke broadcast licenses of television stations whose coverage he disapproves of.

The complaint argues that these and other similar actions intentionally place a "sword of Damocles" over the heads of all journalists and writers covering the President, including PEN America members.

“While PEN America members, and many media outlets and journalists, have been unflinching in their coverage of the Administration, the First Amendment protects the press from having to brave government retaliation and threats in order to do their work,” said PEN America CEO Suzanne Nossel. “We have grown sadly accustomed to near daily attacks by President Trump on the media, but when his speech crosses the line into retaliatory actions or credible threats of reprisal against critics, the President’s actions are not only egregious, but also unconstitutional. At a time when hostility toward the press has fostered a climate of threats and even violence, it is essential for courts to step in and affirm the role of the First Amendment and free press in our democracy. There is a natural tension between leaders and the press corps charged with holding him accountable, but here in the U.S. we have constitutional safeguards that prevent the use of the power of government to punish and intimidate the media.”

“The governing law is clear: President Trump has the right to express views about the press, loudly and often. He does not have the right to use the powers of his office to punish those who disagree with him and criticize him,” said David Schulz '78, head of the Yale Media Freedom and Information Access Clinic at Yale.

“As an organization of working writers united in defense of free expression, we are alarmed at the climate of hostility and threat in which those who offer political reportage and commentary must now operate," said PEN America President, journalist, and Pulitzer Prize-winning novelist Jennifer Egan. “PEN America has long risen to the defense of writers around the world who face peril for expressing themselves. With journalism under unprecedented attack from the White House, we feel compelled to fight back.”

The complaint reaffirms that the First Amendment prohibits government actors from using their power in ways that punish the content of reporting or that are intended to stoke intimidation through threats of government action. It notes that individual writers, including freelancers and especially those who may be vulnerable for other reasons — by virtue of their immigration status, for example — may understandably think twice before publishing pieces or commentary that could put them in the White House’s crosshairs.

President Trump has already faced a number of First Amendment challenges. In one case, a federal district judge, presiding in the same district in which this case has been filed, declared that President Trump’s practice of blocking critics on his Twitter account violated the First Amendment. The remedy sought in PEN America’s complaint is similar. In another case, the Sixth Circuit Court of Appeals rejected an allegation from protesters who were roughed up during a campaign rally that then-candidate Trump’s calls from the podium incited a violent riot.

This suit comes at a worldwide moment of reckoning for the relationship between governments and the journalists who criticize them. As respect for the role of the press erodes, illustrated most egregiously in recent days with the crisis over the fate of Washington Post contributor Jamal Khashoggi, it is vital to underscore and enforce the First Amendment protections that have always set the U.S. apart as a standard bearer for press freedom. That’s what this suit aims to do, those involved in the complaint said.

“President Trump’s anti-press actions are taking place at a time when autocrats around the world, including in Hungary, Poland, Saudi Arabia and Turkey, have been ramping up their attacks on a free press,” said Kristy Parker, Counsel to Protect Democracy. "The difference between the United States and those countries is that the United States has a long-standing constitutional tradition that prevents such behavior and an independent court system designed to step in when violations occur.”

Protect Democracy has highlighted the myriad ways in which President Trump appears to be following a playbook used by other autocratic rulers around the world. While democracy was ascendant around the globe in the latter half of the twentieth century, that trend has come to an alarming halt, the group said. According to data from Freedom House, an independent watchdog that tracks free expression globally, the spread of democratic regimes peaked around 2005 and has been in retreat ever since. The new breed of autocratic-style leaders does not vanquish democracy overnight. Rather, modern autocrats pull at the threads of democracy incrementally, finding vulnerabilities in democratic systems that can be exploited. Using the power of the government to deliberately intimidate dissenting voices, including those of writers and journalists, is one such strategy, according to those involved in the lawsuit. In some of the aforementioned countries, their leadership has succeeded in eroding democracy as the direct result of a lack of a truly independent judicial check. It is against this backdrop that today’s lawsuit has been filed.

Since the 2016 presidential campaign, PEN America has decried efforts to foment hostility and distrust toward the media. Through research reports, petitions, and campaigns, PEN America has mobilized to defend the role of the press as a cornerstone of our democracy.  In 2018, PEN America initiated a national outreach effort to activate its members through public forums on media freedom, advocacy for local news outlets, and media literacy workshops.  A cornerstone of this effort is the Press Freedom Incentive Fund, which supports initiatives that build new local constituencies ready to defend press freedom.  PEN America has fought against encroachments on free speech by United States presidential administrations for decades, including through advocacy for whistleblowers and journalists targeted for their reporting.  The organization also has a long history of litigation challenging government encroachments on freedom of expression, including the blocking of prominent writers and scholars from visiting the United States due to their critical speech pursuant to the USA PATRIOT Act, and the mass warrantless wiretapping of international electronic communications.

The full complaint can be read here.

More information about this case can be found on PEN America's website.

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PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide.  We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

Protect Democracy is a nonpartisan nonprofit organization dedicated to preventing American democracy from declining into a more authoritarian form of government.

The Yale Law School Media Freedom and Information Access Clinic is a legal services clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work.  The clinic is an initiative of the Information Society Project at Yale Law School and is funded by the Floyd Abrams Institute for Freedom of Expression.

Media Contact:

Michele Landa-Riggio, mriggio@pen.org, 646-779-4830.