PEN America v. Trump
“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.”
October 16, 2018,
Today PEN America, represented by the nonpartisan nonprofit Protect Democracy and the Yale Law School Media Freedom and Information Access Clinic, filed a lawsuit in federal court against the president of the United States, Donald J. Trump. The suit seeks to stop President Trump from using the machinery of government to retaliate or threaten reprisals against journalists and media outlets for coverage he dislikes.
President Trump’s tirades against the press are not new. His cries of “fake news” are an almost daily occurrence. The White House has called for individual journalists to be fired, and the president has referred to the media as “the enemy of the American people.” This has created an environment of hostility toward the media wherein journalists have been subject to death threats, needed bodyguards to cover political rallies, and have faced attacks in their newsrooms. The president has also threatened book publishers and authors who have published critical volumes. While many media outlets are unrelenting in their robust coverage, individual writers may think twice before publishing pieces or commentary that could put them in the White House’s crosshairs. As you know, over the last 18 months PEN America has been doing research, reporting, advocacy, outreach events, and more to spotlight and call out the president’s assaults on writers and journalists.
Yet most of the president’s verbal attacks on the press are speech that is protected under the First Amendment. Our country’s broad protections for free speech allow the president to denigrate the press and even go after individual journalists by name. However, when President Trump crosses the line and threatens to use his authority to punish the media, or actually does so, it is vital for the courts to step in and affirm that such threats and reprisals are unconstitutional. We have worked closely with leading First Amendment scholars and practitioners in private practice and academia in order to hone a request to the court to do just that.
As an organization of writers, we at PEN America are deeply concerned to see the antagonism toward the press that we’ve long associated with authoritarian rulers around the world manifest here at home. We have forcefully raised concerns about free expression infringements during the Obama, Bush, and other prior administrations including, in some instances, by filing suit. Given our mission to defend free expression and support those who pay a price for its exercise, we are determined to rise in defense of the press freedom protections that are so fundamental to our society and democracy. With media organizations focused on their essential role of providing probing, objective coverage, PEN America is uniquely positioned in standing up to these encroachments on the work of those who cover and comment on the work of our government.
Yours in solidarity,
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PEN America’s mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. PEN America’s bedrock work is long-term advocacy on behalf of individual writers who are being persecuted because of their speech. PEN America also works on a range of free expression policy issues both in the United States and worldwide. PEN America has filed suit to further that mission. As the American branch of PEN’s worldwide network, we have a special responsibility both to our own 7,200 Members and to the rights and freedoms that protect free expression for all in this country. We have a long history of defending against encroachments by the government on free speech, including through litigation where necessary. The president’s conduct harms PEN America’s Members by forcing them to do their work against the backdrop of credible threats of retaliation by the president. PEN America has seen the erosion of democracy in other countries when similar behavior has been left unchecked and allowed to undermine the free flow of ideas and the ability of citizens to hold governments accountable. We believe we have a duty to try to stop that from happening here.
The president’s retaliatory use of government power to punish journalists for criticizing him, and his threats to do so, force journalists to do their work at the risk of government retaliation. This conduct, deliberately intended to stifle speech, violates the First Amendment. The First Amendment protects freedom of speech so that individuals can speak out without fear, but it also protects journalists and the press from having to run a gauntlet of threats in order to do their work. The First Amendment bars the government from taking any action that is aimed at suppressing press freedom, including credible threats of retaliation. As the United States Supreme Court said in 1936, “[S]ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.” The government violates the First Amendment when it takes adverse action against the press because of the content of its protected speech. As the Second Circuit Court of Appeals has said, “A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights.”
President Trump has directed or threatened government action against protected speech by the press in at least four circumstances, including:
- Threatening and using the Department of Justice to disrupt a merger involving CNN’s parent company, Time Warner, with AT&T because of CNN coverage that the president found hostile.
- Directing the United States Postal Service to explore raising postal rates for Amazon because its founder and CEO, Jeff Bezos, owns The Washington Post, a newspaper that the president views as critical of him.
- Threatening to have the federal government revoke television broadcast licenses in response to those networks’ coverage of the president.
- Directing the removal of certain White House correspondents from events covering the president and threatening to ban additional journalists from these events.
The complaint, which can be read in full on the website, details these instances.
Many of PEN America’s Members, and many journalists and writers more broadly, have courageously continued to do their work in spite of President Trump’s retaliatory acts and credible threats. But this does not mean that his threats have not affected how journalists and writers carry out their work, nor that the president is not violating the First Amendment. Speech is “chilled” within the meaning of the First Amendment when a government official creates a credible threat that those who criticize him will be punished for their speech, regardless of whether the threat successfully suppresses speech.
No. PEN America has long defended freedom of expression against government incursions, including by filing suit. 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. When the Bush Administration sought to invoke the Patriot Act to block prominent writers and scholars from visiting the United States due to their critical speech, PEN America turned to the courts to enforce the First Amendment. Some examples of prior PEN America suits challenging 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.
- ACLU v. Clapper/Wikimedia v. Clapper (2013), challenging the expansion of the NSA’s surveillance program.
In addition, PEN America has filed amicus (“friend of the court”) briefs on a wide range of issues related to our mandate, from court decisions that affect freedom of the press, to cases related to Americans’ rights to free speech online, to enforcement actions that appear to unfairly target specific journalists. Our more recent amicus filings include our brief—along with more than 30 arts organizations—calling for the court to find the Trump Administration’s travel ban unconstitutional. In all, PEN America has a more than 40-year history of filing such amicus briefs as part of our mandate to fight for freedom of expression.
President Trump and his administration are not alone in taking steps to undermine the First Amendment. John Adams, Abraham Lincoln, Richard Nixon, George W. Bush, and Barack Obama all did things that were dangerous to our free press. However, the open and systemic assault we are seeing from President Trump, especially within the current global context in which autocrats around the world—many of whom President Trump openly admires—are undermining a free press in similar ways, poses a level of danger that we believe is unique in recent history. Past presidents may have skirted First Amendment values or even the law itself, but they continued to affirm the importance of a free press. In contrast, President Trump has called the press “the enemy of the people,” while turning the regulatory and enforcement powers of the state against the press in a deliberate attempt to silence criticism. His actions and the climate of hostility toward the press that has emerged among a segment of the American public demand a robust response.
No, this suit is not about suppressing the president’s speech. Under the First Amendment’s protection of free speech, President Trump can express his own views and criticize journalists and media organizations. PEN America is suing President Trump because of a series of retaliatory uses of the formal powers of his office, and credible threats to do so, to punish and retaliate against speakers with whom he disagrees. Because these actions come from the most powerful official in the United States government, journalists, whose responsibility to hold the government accountable may require criticizing the president, must carry out their work in the face of a credible risk of government retaliation.
Our complaint asks for a declaratory judgment, meaning a ruling by the court that the president’s use of government power to punish speech violates the First Amendment. The complaint also asks for the court to enter an injunction to stop the president from directing government agencies to retaliate against journalists for their speech. Such an injunction would mean that if the president were to violate the order, he could be held in contempt of court. These actions by the court would lift the sword of Damocles that is currently hanging over the heads of all media entities, executives, writers, and journalists contemplating, writing, or publishing criticism of the president.
Since his election in 2017, PEN America has consistently called out President Trump’s continuing efforts to attack and denigrate the press. Our efforts include the following:
- On January 15, 2017, PEN America sponsored the flagship “Writers Resist” rally on the steps of the New York Public Library. PEN America submitted to then-President-Elect Trump a pledge to defend the First Amendment. The pledge was signed by over 150,000 people, along with every living previous American Poet Laureate.
- In April 2017, PEN America published Trump the Truth, a report evaluating the Trump Administration’s first 100 days in office from a free expression perspective with a focus on President Trump’s efforts to undermine the press. PEN America concluded then that the Trump Administration appeared to see “probing, critical journalism as an offense warranting punishment.”
- Our Trump the Truth timeline monitored instances of the Trump Administration’s denigration of the press over his first year in office, identifying more than 150 occurrences.
- Our 2017 resource Defending Free Expression: A Toolkit for Writers and Readers suggested responses to the Trump Administration’s attacks on the press.
- PEN America has been consistent in expressing unflinching support for freedom of the press and responding to President Trump’s attempts to depict the press as the “enemy of the American people.”
- In late 2016, PEN America created the DARE: Daily Alert on Rights and Expression, a daily-curated roundup of the most important free expression-related news from the United States and abroad.
- In related projects, PEN America has done extensive reporting and advocacy on the spread of fraudulent news and the rise of online harassment directed toward writers and journalists.
PEN America brought this case after soliciting information from Members and speaking extensively with legal experts and its Board of Trustees.
Updates on the case will be available via PEN.org and shared across PEN America’s social media channels. Supporters can also subscribe to our DARE: Daily Alert on Rights and Expression, a daily, curated roundup of the most important free expression-related news from the United States and abroad.
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