Judge Allows PEN America's Lawsuit Against Donald Trump Over Retaliation Against The Media To Proceed

from the the-first-amendment-has-legs dept

We’ve written a few times about the White House’s unconstitutional retaliation against journalists it did not like, such as Jim Acosta and Brian Karem. PEN America, a key group fighting for free speech rights for journalists and writers, has now been allowed to proceed in its lawsuit against the President over his campaign of retaliation against journalists. PEN America had sued back in 2018, asking for declaratory and injunctive relief (basically the court telling the Trump White House to knock it off) against a variety of forms of retaliation he had done or threatened against the press.

Specifically, PEN America had raised five actions that Trump had done or threatened to do in retaliation against the press: barring access to White House briefings, revoking (or threatening to revoke) security clearances of ex-government employees for commentary made to news organizations, threats to revoke broadcast licenses, raising postage rates to attack Amazon in response to Washington Post coverage, and interfering with the AT&T/Time Warner merger over anger about CNN’s coverage.

The DOJ had argued in response that PEN America had no standing, since Trump had not targeted PEN America. PEN America’s response was that Trump had targeted PEN America members, including various news orgs and their employees, such as Jim Acosta. Indeed, when the filing was first made, we pointed out that the “standing” question would be a big hurdle. However, in a bit of a surprise, the court has said that PEN America has enough standing to proceed… at least on two of the issues at play:

Plaintiff has constitutional standing to pursue First Amendment claims against Defendant?s practice of (i) 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 (the ?Press Corps Claim?), and (ii) revoking or threatening to revoke the security clearances of former government officials whose commentary he dislikes (the ?Security Clearance Claim?). As explained below, Plaintiff does not have standing to challenge Defendant?s alleged threats to revoke broadcast licenses, the executive order on postal rates, the directive to challenge the AT&T-Time Warner merger or regulatory threats against internet companies.

When PEN America first filed the case, we noted that the standing issue for those direct actions against companies would be a tough one, as it should be the media companies themselves who would have to file suit, rather than PEN America, and that seemed to be where the judge came down as well:

Plaintiff does not have associational standing for the other allegations — Defendant?s revocation of security clearances, threats to revoke broadcast licenses, the postal rates executive order or the challenge to the AT&T-Time Warner merger and regulatory threats to internet companies — because the Complaint does not identify any PEN America member who has standing to bring these claims. The only member named period is Mr. Acosta. But Mr. Acosta does not have a sufficient ?personal stake? in these allegations to confer standing.

Basically, just because some of your unnamed members might sorta be impacted indirectly by these threats, that’s not enough for standing:

Mr. Acosta is many steps removed from each of the challenged actions, and any purported injury to him is far too speculative…. Defendant?s remarks about revoking broadcast licenses are Twitter vitriol, posed as questions (?Collusion?? ?At what point is it appropriate to challenge their License??), and refer vaguely to ?the Networks,? not to CNN where Mr. Acosta works. The injury to Mr. Acosta due to the AT&T-Time Warner antitrust lawsuit is similarly speculative, because the lawsuit targets only CNN?s parent. Likewise, the postal rates executive order, security clearance revocations and regulatory threats to Google and social media companies have no direct bearing on Mr. Acosta.

However, the surprising bit is that standing was granted regarding the direct issues regarding the White House press corp and former White House staffers who might lose their security clearance in a fit of anger by the President (this was done against former CIA Director John Brennan).

Here, the court says there’s enough to let the case move forward on these points, mainly because it can name an actual person who was impacted directly by these issues:

The Complaint alleges that Mr. Acosta and the press corps have suffered an ?objective harm [and] a threat of a specific future harm,?… and that Mr. Acosta?s resulting speech and receipt-of-information injuries are concrete, actual and particularized. Defendant has made an example of Mr. Acosta, by stripping his press credentials after he asked Defendant critical questions about the Administration, barring Mr. Acosta from the venue necessary to perform his job and directing the Press Secretary to warn other reporters that they would face similar consequences as Mr. Acosta…. The allegations furthermore suggest that Defendant punished Mr. Acosta publicly in order to chill his speech and the press corps?. In demonstrating that Defendant would in fact punish reporters who spoke critically, Defendant made his threats of future punishment more credible, and consequently, effective. The speech injuries are furthermore particular to Mr. Acosta. As a member of the press corps, and as a reporter specially targeted by Defendant, Mr. Acosta is uniquely vulnerable to Defendant?s threats. He also has a unique interest in hearing the questions and discussion of his press corps colleagues with Defendant, which facilitate Mr. Acosta?s own reporting.

The allegations also establish a causal connection between the injuries and the challenged conduct. It is plain that the injuries trace to Defendant?s actions. A favorable ruling furthermore will likely redress the practice. The Complaint explicitly pleads, quoting from the Press Secretary?s e-mail, that Defendant and his staff are ready to heed a court decision on proper rules of conduct for governing the White House press corps.

For what it’s worth, the DOJ tried to wipe away the Acosta point by arguing that since it gave him back his press credentials, there was no issue, but the court points out (in a footnote) why that’s not true at all, because the real issue is the chilling effect. And that’s still around.

Defendant argues, to the contrary, that Mr. Acosta has no injury-in-fact because his press credentials were restored in November 2018. But this argument misunderstands the nature of the asserted injuries. Although loss of credentials may be injurious, Plaintiff has alleged instead that ?speech [itself] has been adversely affected,? i.e. the injury of an ongoing chilling of speech and corollary ongoing interference with receipt of information.

As for the security clearance claim, the court also says that there’s enough evidence to suggest a specific kind of injury for which it has standing. Part of the reason here, is that PEN America’s advocacy role often relies on getting information from former government officials — so a chill on them would harm PEN America directly.

With respect to the Security Clearance Claim, Plaintiff has a receipt-of-information injury because Defendant?s actions plausibly chilled the speech of the six government officials named in the Complaint. After four of these officials spoke critically about Defendant in the media, the Press Secretary announced that Defendant was considering revoking the six officials? security clearances, expressly citing their media commentary. Defendant ultimately revoked the security clearance of one official, an allegedly unprecedented action by a President. The officials are otherwise frequent and willing speakers in the media. The Complaint has plausibly alleged therefore that Defendant?s retaliation and threats of further retaliation against these officials have objectively chilled the volume or quality of their media speech. Plaintiff?s right to receive the speech has in turn been impaired….

…. Plaintiff is an organization that, among other things, engages in advocacy for freedom of the press, monitors the government?s impact on the press, and publishes research and analysis on these issues. Plaintiff?s sources of information include these former government officials, who provide unique and expert insight on the Administration. Loss of these official?s speech is therefore not a generalized grievance and affects Plaintiff?s operations directly…. Thisinjury is indisputably traceable to Defendant?s actions. The allegations that Defendant and his staff will be responsive to court orders suggest that a favorable ruling would deter Defendant from retaliating or threatening to retaliate against the officials? speech.

Separately, there’s standing on behalf of PEN America’s members who rely on those former government officials as well.

Similarly, Plaintiff has organizational standing as to the Press Corps Claim. Defendant?s actions have plausibly chilled the White House press corps? speech, the questions they ask Defendant and the reporting they consequently are able to publish. The chilling impedes Plaintiff?s right to receive information. Since PEN America monitors how government interacts with press, and its own members are in the White House press corps, Plaintiff has a particular interest in receiving and monitoring this speech.

I still wonder how useful this overall case is — and think it would have been stronger if those who were the direct targets of Trump’s statements had sued on their own behalf. But, keeping the Trump administration from threatening retaliation so freely would certainly be a win for the 1st Amendment.

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Comments on “Judge Allows PEN America's Lawsuit Against Donald Trump Over Retaliation Against The Media To Proceed”

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Andrea Iravani says:

As far as press credentials are concerned for using the White House press room, the very notion of press credentials is ridiculous as is the notion that a few scores of individuals hold the unique titles and credentials to enter the White House and shout down the White House spokes person or White House staff.

I have witnessed the acostic nature of Accosta as well as other credentialed pathological liars who serve no purpose what so ever. The media is brain dead. Unfortunately, the majority of Americans are simply too young to recall what the press was once capable of. The press has devolved into partisan political propagandists insisting that Russia was responsible for Hillary Clinton’s loss. Granted, Trump himself is guilty of pathological lying regarding many things in foreign and economic policies which the press rarely even questions him on, because the DNC is guilty of the same crimes.

Why should any foreign government employee still hold security clearance? Most people would strictly refer to them as spies! It is a national security risk. They could sell classified information for a profit, or abuse the security clearance for other personal but nefarious reasons.

There is however, far, far, far too much classified information in the first place! Most of it is classified strictly because it is totally illegal and would embarrass the government for treason, bribery, and high crimes. Assange and Snowden as well as others have proven it!

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Andrea Iravani (user link) says:

Re: Re: Re:

Having said that, I am furious, disgusted, insulted, and enraged to put it mildly that the Medical Mafia, local, state, and federal governmemts, the financial sector, Silicon Valley, and the Military Corporate Complex feel entitled to use me and hundreds of millions of Americans hostage and as proxies in their battle of greed! Since when did any of them actually give a damn about life? Was it when they killed 500,000 Americans with narco-trafficking and prescription drugs, or when they went to wars against countries that never invaded our country, or was it when they created impoverishing and debilitating sanctions on other countries, or when they imprisoned millions of Americans usually without charges, or with petty infractions, or when they refused to allow churches, charities, and restaurants to feed the homeless, or when they flooded the Flynt River with lead, or when they kicked the poor off of healthcare and food stamps, or when they allowed total poverty and homelessness of millions of Americans, even though the federal government owns most of the vacant homes and mortgages, or when they shut the water off from people with delinquent water bills, or when they did radiation experiments on pregnant women and new borns, or when they did the bad blood experiment, or with the MK Ultra Experiments, or when they shoot people for looking for their drivers licenses, or any of the thousands of others of heinous and abusive predatory crimes that they perpetrate against us on a daily basis?!

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Andrea Iravani says:

Re: Re: Re:

Having said that, I am furious, disgusted, insulted, and enraged to put  it  mildly that  the   Medical Mafia, local, state, and federal governmemts, the financial sector, Silicon Valley, and the Military Corporate Complex feel entitled to use me and hundreds of millions of Americans and hold us hostage and as proxies in their battle of greed! Since when did any of them actually give a damn about life? Was it when they killed 500,000 Americans with narco-trafficking and prescription drugs, or when they went to wars against countries that never invaded our country, or was it when they created impoverishing and debilitating  sanctions on other countries, or when they imprisoned millions of Americans usually without charges, or with petty infractions, or when they refused to allow churches, charities, and restaurants to feed the homeless, or when they flooded the Flynt River with lead, or when they kicked the poor off of healthcare and food stamps, or when they allowed total poverty and homelessness of millions of Americans, even though the federal government owns most of the vacant homes and mortgages, or when they shut the water off from people with delinquent water bills, or when they did radiation experiments on pregnant women and new borns, or when they did the bad blood experiment, or with the MK Ultra Experiments, or when they shoot people for looking for their drivers licenses, or any of the thousands of others of heinous and abusive predatory crimes that they perpetrate against us on a daily basis?! 

Anonymous Coward says:

Re: Re: Re: Re:

Hey, all of us would agree with you about the medical mafia. It’s a huge scam. Americans have to pay more for everything, and we often can’t even ASK the price of medical services. It’s insane and needs to be cost reduced and quality improved. Perhaps in some bizarre way corona will help with that.

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Andrea Iravani says:

Re: Re: Re: Re:

If government employees do not want to have to answer to the public for their behavior, they really ought to do the world a favor and resign immediately!

We are supposed to have a government FOR the people, not People FOR the Government! Tjey have convinced themselves that they are greater and more powerful than Gods.

This ego-deflation may take quite a while before they awake from their hang overs of spending like drunken sailors and reality finally begins to set in!

Do not let up! Be vigiliant in confronting them with the truth until they confess! It is an intervention. It may take time but the truth, facts, math, and history prove how wrong they are!

Eventually they will realize that they must leave, while they still have a chance!

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Anonymous Coward says:

Re: Re: Re:3 Re:

Someone sue Cuomo for not locking down NYC. How dare he call Rhide Island "Absurd" and threatening to Sue that state for law enforcement checks on people flooding out of NYC into Rhode Island. He has an aweful short memory to have forgot Five Million who fled Wuhan in the days before the lockdown and soread this all over the planet. Shut down NYC. You say bbbut there’s people there and and they will get stuck there. OH WELL THAT IS TOUGH. ew Yorkers are tough.

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Anonymous Coward says:

It’s the virus that is the real retaliation. Hey Mike, have you realized you’re dead yet? Well, not you, actually, your diseased socialist ideology. It’s dead. Globalist socialist anti-American ideology is DEAD in America. Yes, the dead body of socialist ideology in America will have a few fits before all signs of life are gone forevermore. AOC will shake her arms about corporate “greed” a few more times, your un-American and non-American phonies will talk their smack. But it’s over. Corona will kill a few Americans, but will save America from idiots like you and your paid imposters. Do you get it, Mike? Corona has infected America and Americans with a need for common sense and reality checks right now. No one cares about open source. No one wants open borders. Everyone wants America first. You lost to a virus. Socialism and the stupidity promoted shamelessly by this site are both dead, and soon buried. Not soon enough, IMHO.

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Anonymous Coward says:

Re: Re: Re:

It’s only unhinged socialist zealots like you that could frame this as a religious issue. This is a survival issue. Go fuck your idiot self with your religious view.

If God was involved with this, maybe he has devised a CURE for liberal sanctuary cities. In one step, much of the best of American life and American tradition has come back into razor sharp focus. Gone are the mad calls for open borders.

Thank you God we have Donald J. Trump, the magnificent, to lead us to a better, cleaner, healthier and more prosperous America!

Personal, I think Trump will use this emergency to streamline, cost reduce and quality improve the American healthcare system. That’s what I would do.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re: Re: Re:

If God was involved with this

…She made sure the virus would affect people of all social, economic, and religious groups around the world. Everyone from doctors to world leaders to wage workers have been stricken with the virus; COVID-19 has no political or social agenda, no desire to work with world leaders as a form of “population control”, no need for anything the material world could offer. You can’t bargain or reason with COVID-19. It doesn’t feel pity, or remorse, or fear. And it doesn’t give a fuck about your personal wishes to kill Repugnant Cultural Others without getting your hands dirty.

If God sent this virus, She didn’t send it to help you — She sent it to destroy anyone who gets in its way. That can include you, too.

Anonymous Coward says:

Re: Re: Re:2 Re:

Nature has a way of putting animals in their place.

Seems one of the animals that inhabit this planet has gotten way out of line on many fronts. Mother Nature is doing something about it. Some animals have noticed and are sounding alarms but many others simply ignore it or shout it down because they are above the animals and think they are invincible.

One is tempted to say things like welcome to the real world but I doubt that is helpful. How does one discuss such matters with those who refuse to listen? IDK.

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That One Guy (profile) says:

'Oh no, not the dreaded finger wag, not again!'

While it would certainly be nice if they can secure a win in court here, ultimately the only thing that matters is the penalty handed out. If the court isn’t willing to hand out a meaningful penalty that actually acts as a deterrent to keep such actions from happening again a win will be nothing but symbolic, something that’s nice to point to but which doesn’t actually accomplish anything real.

While a legal ruling making clear that retaliation against the press is not acceptable would certainly be better than the alternatives, my concern is that without some real teeth in that ruling it will just be shrugged off and ignored the next time the Dear Leader decides to punish someone who said something he doesn’t like, because what’s the judge going do do, wag their finger extra hard next time?

Anonymous Anonymous Coward (profile) says:

Re: 'Oh no, not the dreaded finger wag, not again!'

There is a problem in that the courts don’t actually have much power. I know that this article at Simple Justice is on another subject, but it nicely points out the dilemma that occurs when a court order is ignored. Trump isn’t going to pay any fine. More attempts to oust journalists they don’t like from the press room will just use different excuses that will then need to be adjudicated. And it’s not like the DoJ will be hounding the White House about their behavior any time soon. Then there is the idea of holding someone at the Executive Branch in contempt and watching the finger pointing as various people pass blame in a circle.

Maybe we should give courts some enforcement power? But then we have seen what power can do to otherwise seemingly intelligent people.

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Stephen T. Stone (profile) says:

Re:

At least the so-called liberal press tends to deal with facts and self-correct if the facts aren’t correct. (Note that I said “tends to”; it’s not perfect. Nothing is.) Have you seen Fox News — or any other conservative media outlet, for that matter — consistently criticizing Donald Trump for all but promising that the COVID-19 outbreak would be contained/eradicated by now? Have they excoriated him for his having disbanded the U.S. Pandemic Response Team in 2018? Have they called him out for saying “nobody knew there would be a pandemic or epidemic of this proportion” despite knowing his administration performed a pandemic simulation in 2019 that outlined practically all of the problems with a potential (and now sufficiently real) U.S. response to a pandemic?

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

Everything Trump has done, kicking and screaming against the advice of his advisors, has been too late to be effective. His response has been abysmal at best yet he continuously self-congratulates for how wonderful a job he thinks he’s doing. It’s a joke. And the icing on the cake is that his athletic supporters lap it up and praise him. It’s a good thing international travel is pretty much impossible right now as it saves us the embarrassment of having to admit our nationality to others.

This is a great country, or at least half of it is, and we made a terrible mistake in 2016.

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Anonymous Coward says:

Re: Re:

You have the memory of a goldfish. Scroll back to the articles posted during Obama’s tenure and see if you still believe the same. If you do then not only is your memory flawed but you have the vacant critical thinking skills of a turd. Guess that makes you a turdfish.

Anonymous Coward says:

The issues here are that there are more people, reporters, that would like to attend the briefings than there is physical space and that there are a large group of people that believe that they can control the agenda by not allowing those in power to speak.

Consider the White house briefing room is a historical relic in the age of the internet the most optimum solution would be to kick ALL the reporters out and place ALL such public briefings on the internet in the form of pod broadcast. That way every has equal opportunity to view and equal opportunity to shout the speaker down from what ever part of the world they are in. Maybe if the reporters in New York yell loud enough the people in China can hear the batting of their wind.

Stephen T. Stone (profile) says:

Re:

Consider the following: Not everyone has Internet access, and not everyone is such a politics wonk that they’re going to listen to daily government podcasts.

Besides that, a one-way public briefing with no reporters in the room offers no chance for anyone to question the person(s) doing the briefing on anything they said in that moment. Government officials can present their briefing, then have plenty of time to create explanations and justifications and excuses (and outright lies) for anything they say that the press considers suspect.

What you want is for the press to have no chance of criticizing the government (via questioning the government) to its face. The primary duty of the press in the United States is to criticize, critique, question, and (every once in a while) subvert authority. The press doesn’t exist to be stenographers for the government, nor should it exist for that reason.

And if you don’t like what the media says about any given politician or political party(/personality cult), you’re free to start a blog and rant about it. The beauty of the Internet is that your voice can find a place to exist. The downside is, nobody will listen to that voice if you have nothing useful or entertaining to say. Or do you think everyone here reads my posts?

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Andrea Iravani says:

What is currently taking place right now with the coronavirus hoax is a deliberate and concerted effort to induce Stokholm Syndrome where we, the hostages who are being horrifically abused by evil, sadistic, self-serving predatory psychopaths in the government at all levels, the Medical Mafia, the financial sector, Silicon Valley, and the military corporate complex during their battle of greed and control.

Now that we know and identified their goals, we must be vigilent and demand that they step down. We must demand that they must submit to our demands of a single check of $20,000 per person and no other bail-outs for corporations, financial institutions or hospitals! Medical spending has increased from 6% to 18% of GDP from 1970 to 2019. There is also between $700 billion to $925 billion a year by conservative estimates in medical fraud every year! These are mobsters in every sense of the definition.

It is no surprise that Medical Mafia hospitals are requesting $100 billion! If hospitals purchased 100,000 respirators and 100,000 hospital beds for $100 billion, they would be $500,000 a piece!

This is extortion, and a robbery in action with a hostage crisis! Nothing more! People die of influenza every year! 80,000 in 2019 died of the flu in America! Why the sudden cause for alarm?! Because of the fourth economic collapse induced by financial fraud from extremely corrupt whit collar criminals!

In 2008, there were $28 trillion in derivatives. Now, there are $640 trillion in derivatives. If the pattern continues, within the next twelve years it will be
at least $125 quadrillion!

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Andrea Iravani says:

Re: Re:

Look at the players here

  1. Bill Gates claiming two years ago that this would happen, and trying to force his untested over a human lifespan messenger RNA vaccine on everyone in America which is why they are saying that it would take at least a year to develop as opposed to traditional vaccinex which other nations have already developed, for those who would willingly choose innoculation, which would not include me.
  2. Amazon delivering to everyone since governors have mandated the shut downs of all non-essential businesses.
  3. Facebook, Google, Apple, Amazon, and Microsoft spying n everyone receiving defense funding to do it.

Whoever smelt it dealt it, and this coronavirus hoax was initiated by Bll Gates, the Rockefeller Studies Institute, and Davos World Economic Forum with Event 201 and ID2020!

Death to the psychopaths!

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Rocky says:

Re: Re:

80,000 in 2019 died of the flu in America! Why the sudden cause for alarm?! Because of the fourth economic collapse induced by financial fraud from extremely corrupt whit collar criminals!

  1. It was not 80 000, more like ~35 000.
  2. Deaths are counted per flu-season, ex 2018-2019 or 2019-2020 and not yearly.
  3. The mortality rate for seasonal flu is ~0.1%
  4. COVID-19 has a mortality rate of at least 4% (ie. 40x higher)
  5. The flu-season is normally spread out over 6 months.
  6. COVID-19 has a R0 that’s significantly higher than a seasonal flu (it’s more infectious)
  7. A large percentage of people contracting COVID-19 NEEDS hospitalization which seasonal flu doesn’t.

A person possessing a modicum of intelligence and faculties for reasoning quickly realizes that hospitals will be inundated with sick people needing treatment to have a chance to survive.

If you think this is a hoax, how about you go and do volunteer-work at a free clinic in your neighborhood?

Or perhaps you are all talk and no substance, which is my guess.

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restless94110 (profile) says:

Acosa

Anyone who thinks that Acosta is a journalist is clearly suffering from a Stage V case of Trump Derangement Syndrome.

Journalists are neutral, unbiased. Nothing about Acosta is. Journalists journalize. Acosta consistently narcicsistically makes every moment of his sorry existence about Jim Acosta.

Trump has done nothing to Jim Acosta. And just because some kritarch (judge ruler lording it over a democracy in place of people voting) has let a suit go forward? It will take months or probably years, but then will be thrown out by the Supreme Court in minutes, probably seconds.

How can you possibly write an article about Jim Acosta? Aren’t you ashamed of yourself? Hey, man. What’s wrong with you?

Jim Acosta? Unbelievable.

That One Guy (profile) says:

Re: Re: Acosa

"Stage V case of Trump Derangement Syndrome"
wtf does this mean?

It’s the sad attempt to dismiss any criticism of Trump by painting the one making it as ‘deranged’, but what it actually is is a huge red flag that the person who just said it doesn’t need to be taken seriously because they have shown that they possess a mindset already primed to dismiss any criticism raised against Trump as the result of ‘derangement’.

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Stephen T. Stone (profile) says:

Re:

Journalists are neutral, unbiased.

Then no journalist is a journalist because nobody can separate bias from journalism. Someone must decide what to publish, what to distill out of the mass of available data, and what facts to check. And regardless of how hard journalists try to keep their biases in check, they still have those biases.

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That One Guy (profile) says:

Re: Acosa

Anyone who thinks that Acosta is a journalist is clearly suffering from a Stage V case of Trump Derangement Syndrome.

Thank you for starting your comment by including the three little words that mean nothing you say needs to be taken seriously. Always a big time saver to have that one up-front rather than buried later on in the comment, and for that I thank you.

Lawrence D’Oliveiro says:

“Conservative” Versus “Liberal”

The term “Conservative” is supposed to refer to someone who prefers how things were in the past. But their memory of the past is typically limited and selective. People who actually study what went on in the past, and try to learn the lessons of history, tend to get branded as “Liberals”.

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