POSTED BY HANK REICHMAN
Today the writers’ organization PEN America, represented by the nonpartisan nonprofit Protect Democracy and the Yale Law School Media Freedom and Information Access Clinic, filed a lawsuit in U.S. District Court for the Southern District of New York against President Donald 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. In a statement PEN America president Jennifer Egan and Chief Executive Officer Suzanne Nossel said, “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.”
The following is the text of the introduction to the complaint. The full complaint may be found here.
1. This complaint arises out of official acts by the President of the United States, Donald J. Trump, intended to stifle exercise of the constitutional protections of free speech and a free press. Through retaliatory directives to officials in his Administration and credible public threats to use his government powers against news organizations and journalists who have reported on his statements, actions, and policies in ways he does not welcome, the President has violated the First Amendment and his oath to uphold the Constitution. President Trump has First Amendment rights and is free to criticize the press vehemently, but he is not free to use the power and authority of the United States government to punish and stifle it.
2. President Trump has directed his threats and retaliatory actions at specific outlets whose content and viewpoints he views as hostile. As a result, journalists who report on the President or his Administration reasonably believe they face a credible threat of government retaliation for carrying out the duties of their profession. President Trump has thus intentionally hung a sword of Damocles over the heads of countless writers, journalists, and media entities, including members of Plaintiff PEN American Center, Inc. (hereinafter, “PEN America”). His actions seek to accomplish indirectly what the President cannot do directly: impede professional and investigative journalism, and silence criticism.
3. Plaintiff seeks a specific and narrow—but important—remedy for the President’s unconstitutional actions aimed at suppressing speech. It seeks the entry of an Order (a) declaring that Defendant Trump’s retaliatory acts violate the First Amendment, and (b) enjoining Defendant Trump from directing any officer, employee, agency, or other agent or instrumentality of the United States government to take any action against any person or entity in retaliation for speech that the President or his Administration do not like.
4. Defendant Trump has made eminently clear his disdain for the press and the legal protections the First Amendment affords it. He has frequently referred to journalists covering his rallies as “disgusting” and has stated, more generally, that it is “frankly disgusting the way the press is able to write whatever they want to write” and that “people should look into that.” Defendant Trump has decried reporting critical of him or his Administration as “fake news” and has repeatedly labeled journalists “the enemy of the American people,” an epithet used by Joseph Stalin and other authoritarian and repressive rulers to denigrate and endanger their critics.
5. These ongoing verbal attacks on the press and others exercising their own First Amendment rights, while troubling and anti-democratic, are not the basis upon which Plaintiff PEN America seeks relief. As disturbing as it is for President Trump to disparage publicly the freedoms provided by the First Amendment, and as indefensible as it may be for the President to denounce in the way he has those whose reporting he dislikes, he too is protected by the First Amendment. His opinions about the press, however odious, cannot be the basis for legal limitations and are not themselves the basis for this lawsuit. But Defendant Trump has done more than to exercise his right to denounce his critics. He has threatened to engage, and has engaged, in conduct intended to retaliate against specific news organizations and journalists whose content and viewpoints displease him. Through his actions, Defendant Trump has intentionally conveyed to all writers and journalists that if he objects to their their coverage, they may be subject to retaliation by the federal government. That conduct violates the Constitution.
6. For example, Defendant Trump has repeatedly called for action to punish the online retailer Amazon because Jeff Bezos, its chief shareholder and CEO, owns the Washington Post, whose accurate coverage of his Administration the President finds objectionable. The President’s threats of government action, alone, caused a pronounced dip in Amazon’s stock value in July 2018. The President then followed through on his threats and issued an executive order directing the U.S. Postal Service (“Postal Service”) to review its financial practices, including the shipping rates it offers companies like Amazon. On information and belief, he then personally directed U.S. Postmaster General Megan Brennan to double the rate the Postal Service charges Amazon and other firms to ship packages. On October 11, 2018, the Postal Service announced proposed rate increases, including a proposed 12-percent increase for the Parcel Select service used by Amazon.
7. Defendant Trump similarly has threatened and taken action to retaliate against CNN because he objects to its coverage of him. When Defendant Trump first learned during the 2016 campaign that CNN’s parent company, Time Warner, planned to merge with AT&T, he publicly threatened to use the Justice Department’s antitrust merger-review process to retaliate against CNN for its news coverage. Following Defendant Trump’s election, the Justice Department sued to block the merger, despite a long track record of not opposing vertical mergers like the one proposed between Time Warner and AT&T. While that lawsuit did not succeed in the District Court, the litigation cost CNN’s parent significant resources, including money, time, and opportunity costs. Those litigation costs continue as the President’s
Administration pursues an appeal.
8. Defendant Trump’s use and threatened use of official authority to punish critical reporting takes other forms as well. For example, he has threatened to take away White House press credentials of reporters whose coverage displeases him and has threatened to challenge NBC’s and other television stations’ broadcast licenses in retaliation for coverage he disliked. In July 2018, the White House banned CNN reporter Kaitlan Collins from a Rose Garden press conference for asking questions the White House deemed “inappropriate.”
9. The President’s intent to deter criticism through credible threats of punishment by the government is unmistakable and seeks to shape the landscape in which all coverage and commentary about the President is carried out. His conduct is designed to intimidate not just the specific targets of the President’s retaliatory actions and threats of action, but all who write or speak critically about the President or his Administration, including members of Plaintiff PEN America. Based on the President’s threats and the follow-up actions described above, journalists reasonably perceive a credible threat of government retaliation if the President is displeased by their reporting.
10. Many media outlets and individual journalists, including members of Plaintiff PEN America, have braved the President’s threats and have continued to do the reporting and writing necessary to hold the government to account. But they must do so against the backdrop of Defendant Trump’s credible threats of government retaliation that is intended to deter them. The fortitude of Plaintiff and the American media in the face of these threats does not render Defendant Trump’s actions any less calculated to chill their speech, nor less unconstitutional.
11. Defendant Trump’s actions infringe two of our most coveted liberties, the freedom of speech and freedom of the press. Freedom of speech is an essential component of a functioning democracy. Benjamin Franklin identified freedom of speech as the “principal pillar” of a free society and the primary bulwark against tyranny. A leader with “the power to punish for words,” he wrote, “would be armed with a weapon the most destructive and terrible.”
12. To ensure no American leader would wield such destructive power, and because they viewed it as vital to maintaining a democracy, our founders guaranteed freedom of the press in our Constitution and created a court system to protect it. As the Supreme Court said in 1936, “[t]he newspapers, magazines, and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since 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.” Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).
13. Together, the First Amendment’s protections of free speech and a free press reflect “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co.v. Sullivan, 376 U.S. 254, 270 (1964).
14. It is also “well established that the Constitution protects the right to receive information and ideas,” Kleindienst v. Mandel, 408 U.S. 753, 762 (1972), and that the government cannot “orchestrate public discussion through content-based mandates,” United States v. Alvarez, 567 U.S. 709, 728 (2012). Together, these protections prohibit the government from attempting to restrict or otherwise improperly influence the news coverage of government activities through retaliatory acts and threats.
15. Defendant Trump has violated these First Amendment rights through his acts that cause reasonable journalists to believe that there are instances in which government power will be used to retaliate against critical speech. These acts cause Plaintiff PEN America’s members reasonably to fear that their reporting or writing may elicit governmental retaliation if the President deems it too critical. These acts also prevent Plaintiff’s members from receiving speech of investigative journalists, writers and commentators who operate free from the President’s efforts to chill and intimidate.
16. Plaintiff comes to this Court for relief because our constitutional system assigns to the courts the power and duty to remedy such an ongoing violation of the First Amendment rights of speakers and listeners.
