“PEN declares for a free press and opposes arbitrary censorship. It believes that the necessary advance of the world toward a more highly organized political and economic order renders free criticism of governments, administrations, and institutions imperative.”—PEN Charter, 1948

PEN America filed its landmark First Amendment lawsuit, PEN America v. Trump, in 2018 to stop then-President Trump’s campaign of censorship against the press. After more than two years of litigation, PEN America settled the lawsuit in 2021, keeping in place a lower court ruling that set a pathbreaking precedent: that officials who use the powers of government to exact reprisals against the press can be held accountable in the courts.

Notably, the court recognized PEN America’s ability to seek redress against the most powerful political figure in the country on behalf of its 7,500 Members.

PEN America was represented in the lawsuit by nonpartisan nonprofit Protect Democracy, the Yale Law School Media Freedom of Information & Access Clinic, and Davis Wright Tremaine, and argued that under the First Amendment’s protection for freedom of speech, President Trump could not use the machinery of government to retaliate or threaten reprisals against journalists and media outlets for coverage he dislikes.

As originally laid out in the complaint, PEN America alleged at least five situations in which the president used or threatened to use the regulatory and enforcement powers of government to punish the speech of journalists, including when he:

• 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.

In 2020, the U.S. District Court for the Southern District of New York granted the government’s motion to dismiss on claims related to the first four situations, finding that the plaintiffs lack standing to sue, but found that PEN America sufficiently pled its claims related to press credentials and security clearances.

PEN America settled its 2018 lawsuit with the United States government in February 2021. The settlement agreement, entered February 18, 2021 in the U.S. District Court for the Southern District of New York, preserves a critical March 2020 federal court ruling that upheld PEN America’s standing to pursue a challenge to the president’s threats and acts of retaliation against journalists and the media. The decision forms an important benchmark, providing accountability for officials who use the power of government to exact reprisals against the press.

Media Coverage

“Literary group: Trump suit settlement protects journalists”
The Associated Press, February 18, 2021

“DOJ Settles First Amendment Suit Over White House Press Access”
The Hollywood Reporter, February 18, 2021

“Trump’s media attacks are an abuse of power. We’re holding him to account”
The Guardian, March 17, 2019

“Trump, the Monster Who Feeds on Fear”
The New York Times, November 28, 2018

“First They Came For Acosta: Why We Sued Trump Before He Acts Again (Opinion)”
Variety, November 16, 2018

“Standing up for the First Amendment”
The Washington Post, November 13, 2018

“PEN America sues Trump for violating first amendment rights”
The Guardian, October 19, 2018

“Jennifer Egan: Why PEN America is Suing Donald Trump”
Literary Hub, October 18, 2018

“Trump’s Attacks on the Press Are Illegal. We’re Suing.”
Politico, October 16, 2018

“Literary group sues Trump, alleges free speech stifling”
The Associated Press, October 16, 2018

“Suing Trump for endangering the First Amendment”
The Washington Post, October 16, 2018