Past PEN America Litigation

In response to our filing of a lawsuit against the president of the United States, Donald J. Trump, seeking to stop him from using the machinery of government to retaliate or threaten reprisals against journalists and media outlets for coverage he dislikes, we have been asked about the degree to which PEN America has been critical of prior presidents and administrations—specifically President Obama—when they operated in ways that were injurious to free expression and press freedom. In fact, PEN America has long defended freedom of expression against government incursions, including by filing suit. We were vocal critics of President Obama’s handling of certain press freedom matters and engaged in substantial litigation against his Administration. In particular, when the Obama Administration sought to prosecute journalists as a means of curtailing government leakers, PEN America spoke out against it and supported legal actions to defend the First Amendment rights of journalists and writers.

We brought suit—along with Amnesty International, Wikimedia, and other human rights organizations—against the expansion of the National Security Agency (NSA) surveillance program shortly before President Obama took office, but the great majority of this litigation occurred under—and against—his Administration. When the case was dismissed and then appealed by the ACLU, PEN America filed an amicus brief before the Second Circuit in order to make sure that our objections were on the record.

The following pieces document the course of this litigation:

We were also deeply concerned about President Obama’s dramatic escalation of whistleblower prosecution. It was the impetus for a full-length research report on the subject—Secret Sources: Whistleblowers, National Security, and Free Expression—in November 2015. The report included specific policy recommendations regarding government access to journalists’ call records. It also included our analysis of the case of James Risen—the Pulitzer Prize-winning reporter who was put under legal threat by both the Bush and the Obama Administrations to reveal his confidential sources. Risen also participated in an event for the launch of the Secret Sources report in November 2015.

Our commentary and advocacy on Risen’s case included the following:

We also wrote an open letter to Attorney General Holder calling on the Justice Department to immediately end its efforts to compel James Risen to identify his confidential source(s).

In 2013, PEN America CEO Suzanne Nossel wrote an article in Foreign Policy entitled, “Freedom Begins at Home,” which addressed alarming threats to press freedom under the Obama Administration. In her piece, Nossel declared that:

“While the president has said that civil liberties must not be traded away in the name of security, his aggressive approach to prosecuting national security leaks within the administration’s own ranks has put the rights of those targeted in jeopardy, and risks chilling the free flow of expression and government criticism far more broadly . . . It will take many months to fully expose the actions of the FBI and the Justice Department in targeting journalists, and to determine how the damage can be mitigated and prevented in the future. What has been revealed thus far, though, is already enough to tarnish America’s global credibility in pressing for media freedom.”

PEN America has a decades-long history of taking legal action, including lawsuits and amicus briefs, on issues related to our mission. Some additional examples of prior PEN America claims that have challenged the government include:

  • Margaret J. Randall v. U.S. Attorney General Edwin Meese (1985-1988), challenging the constitutionality of the McCarran-Walter Act and its attempts to impose an ideological exclusion test to entry into the United States.
  • AAUP, AAR, PEN American Center, & Ramadan v. Secretaries of State and Homeland Security (2006), challenging the denial of visas to Muslim scholars under the Patriot Act.
  • Amnesty International, PEN American Center, et al v. John M. McConnell (December 19, 2008), challenging the constitutionality of amendments to the Foreign Intelligence Surveillance Act.