Global Freedom of Expression

PEN American Center v. Trump

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    March 24, 2020
  • Outcome
    Declaratory Relief
  • Case Number
  • Region & Country
    United States, North America
  • Judicial Body
    First Instance Court
  • Type of Law
    Constitutional Law
  • Themes
    Political Expression, Press Freedom

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Case Analysis

Case Summary and Outcome

A District Court in New York rejected the US President Donald Trump’s attempt to dismiss a motion for alleged suppression of First Amendment-protected speech of certain White House press corps and media commentators holding security clearances. The complaint alleged that Trump, utilising his executive power and authority, since assuming office has continuously intimidated reporters critical of his administration, issued credible public threats and taken retaliatory actions against PEN America members which include Washington Post, CNN and NBC journalists. In granting declaratory relief to the Plaintiff, the Court allowed the case to go forward on claims relating to press credentials and security clearances. With the ruling of the District Court, the Plaintiff will be entitled to obtain documents from the government to substantiate its claim of First Amendment violations against President Trump.


Plaintiff PEN America, a section 501(c)(3) organization headquartered in New York City, is an association of writers and other literary and media professionals, including journalists and publishers of information about the President and his Administration. PEN America members include Washington Post, Cable News Network (CNN) and National Broadcasting Company (NBC). The Plaintiff sought to seek a remedy against alleged unconstitutional acts of President Donald J. Trump (Defendant), claiming that his acts intended to stifle exercise of the constitutional protections of free speech and a free press.

The Plaintiff alleged that 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 violated free speech. PEN America sought an Order (i) declaring that Trump’s retaliatory acts violated the First Amendment, and (ii) an injunction 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 critical speech against the President or his Administration.

In specificity, the complaint of the Plaintiff, among other investigatory and regulatory threats, was pillared on five grounds which had a chilling effect on freedom of speech:

  • revocation or threats thereof by the President of White House press credentials or barring of access thereof of the members of Plaintiff organisation;
  • revocation or threats thereof of security clearances of government officials on the basis of their critical comments in the press against the Defendant;
  • threats to revoke broadcast licenses of television stations;
  • issuance of an executive order to raise postal rates to target (indirectly) Washington Post (by increasing shipping costs for Amazon held by Jess Bezos as main shareholder, who is also the main shareholder of Washington Post); and
  • challenging the Time Warner – AT&T merger out of hostility towards CNN, a subsidiary of Time Warner.

Before the Court, the Plaintiff argued that Trump had repeatedly threatened future action against Amazon as a response to critical reporting by the Washington Post, both of which were owned mainly by Jeff Bezos. On April 12, 2018, Trump had signed an executive order directing the US Postal Service to review rates, with an alleged intention to adversely affect Amazon’s delivery charges. They also contested Trump’s  repeatedly threatening of Department of Justice (DOJ) antitrust enforcement actions against media companies he viewed as unacceptably critical of him, taking particular aim at CNN (and principally a public threat against a proposed merger between CNN’s parent company – Time Warner, and AT&T so as to influence the flow of information to the public). On other fronts, the Plaintiff claimed that Trump had threatened to revoke broadcast licenses and acted to selectively deny journalist critics access to information from the White House. Taken together, Trump’s actions violated the First Amendment because they were content- and viewpoint-based restrictions on speech, resulting in a chilling effect on the Plaintiff’s members own speech as they were forced to do their work in the face of a credible threat of retaliation.

In response, Defendant Trump argued lack of jurisdiction on account of the Plaintiff’s lack of Article III standing (organisational and associational) to bring a claim for relief against First Amendment violation as well as an inability to establish an impending future legal injury, devoiding them of any injunctive or declaratory relief. An action was also not possible, according to the Defendant, on account of set precedents prohibiting federal courts from entering injunctive relief against the President in context of his official, non-ministerial duties.

Decision Overview

District Judge Lorna Schofield delivered the judgment, the principal issue before the Court being whether the Defendant’s retaliatory actions violate the First Amendment principles and require a declaratory and/or injunctive relief.

Under Federal Rule of Civil Procedure s. 12(b)(1), the Court is liable to dismiss action where the Plaintiff lacks constitutional standing to bring the action. The Defendant had claimed that Plaintiff’s complaint did not fulfil the requirements of Article III, as (i) it had not suffered injury ‘in fact’ that is (a) concrete and particularized and (b) actual or imminent; (2) the injury was not fairly traceable to the challenged action of the Defendant; and (3) it was not likely, as opposed to merely speculative, that the injury can be redressed by a favorable decision [p. 8].

On the question of constitutional standing, the Court initially began by categorizing Plaintiff’s standing as an entity into two groupings, (i) organizational (i.e. based on injury to the entity itself); and (ii) associational (in organization’s representative capacity). PEN America had sought to challenge Trump’s informal threatening policies against the press in overall capacity (citing each separate challenged actions as mere representatives of overall policy) – this argument was rejected by the Court on account of the distinctiveness of Trump’s actions and different modes of regulation employed by him against different groups/entities. Accordingly, the Court addressed Plaintiff’s standing with respect to each of the retaliatory acts separately for both groupings.

The Court concluded that while the Plaintiff had associational standing with respect to press corps claims, it failed on other grounds. This was due to the fact that establishment of associational standing was dependent on three conditions, those being (i) ability of the organization’s members to have a standing in their own individual capacities, (ii) the interests the organization sought to protect were required to be germane to organization’s purpose and (iii) both the claim and relief asserted did not require participation by individual members in the lawsuit [p. 10]. The Court derived these requirements from a fairly ancient case of Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). Additionally, as per the ruling in Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009), the Plaintiff was also required to establish at least one member to have/would suffer harm from Defendant’s actions.

Insofar as the press corps claim was concerned, the Plaintiff satisfied the requirements in Hunt test, as at least one member of the Plaintiff’s organization had individual standing and no individual members were required to participate in the press corps claim [p. 11].  It also satisfied Summers requirement, given the fact that the Complainant named Jim Acosta, a CNN journalist and member of the Plaintiff’s organization, had suffered chilling effects of the prohibition of free speech and on his right to receive the speech of his press corps colleagues who witnessed a chilling effect on their speech as well. On a broader Article III requirement of Acosta’s resulting speech and receipt-of-information injuries being actual and particularized, the Court replied in the positive again. By making an example of Acosta, stripping him of his press credentials and warning other reporters of similar consequences, a causal connection between injuries and challenged conduct was evident. On this count, the Defendant was therefore clearly liable.

With respect to other claims (i.e. revocation of security clearances, threats to revoke broadcasting licenses, postal rates executive order or challenge to AT&T merger), the Court concluded that the Plaintiff had no associational standing. This was because the Plaintiff failed to identify any member of the organization who had standing to bring these claims, per the requirement laid down in Hunt. PEN America had only named Mr. Acosta who did not have a sufficient personal stake in these allegations, thus making any purported injury to him as ‘far too speculative’ [p. 13]. There was no ‘actual or concrete and particularized’ injury to him as he was similarly situated to all journalists and public, in terms of a chilling effect on media speech.

On the issue of a direct organizational standing, the Court concluded that the Plaintiff was entitled to bring the press corps’ claim and the security clearance claims, but not the remaining ones. It is interesting to note that while contesting in favour of a direct organizational claim against free speech violations, the Plaintiff had sought to advance two theories of direct injury – an injury to its ‘organizational right to receive speech’ and a forceful diversion of money from its core activities.

In summary, the Court rejected the second but accepted the first. It considered an inability to hear from a speaker willing to speak as a result of government obstruction a major impediment to the organization’s right to receive information. By threatening to revoke security clearance, Trump chilled the speech of several government officials who spoke critically of his government, while also going as far as revoking the security clearance of one official. This right-to-receive information injury was particularized as well, since as an organization, the Plaintiff could no longer rely on these government officials as sources of information to engage in advocacy for freedom of press. The injury was directly traceable to Defendant’s action, satisfying Article III criteria to bring an action before the Court.

Similarly, the Plaintiff was successful in proving the press corps claim too, as the Defendant’s actions had a chilling effect on the Plaintiff’s right to receive information. Plaintiff had a particular interest in the injury, the injury traced to Defendant’s actions and was redressable by a favorable court order. For the remaining claims, the Court held that the chain of causation between the actions of the Defendant, injury to media speech and Plaintiff’s right to receive information was highly speculative.

Finally, responding to the Plaintiff’s claim that it has been injured due to Defendant’s actions forcing the Plaintiff to divert resources to respond to Defendant’s actions overseas and at home, the Court concluded that the Plaintiff was not injured by forcing to spend money as the Defendant’s conduct did not create ‘roadblocks’, but instead enlarged the scope of its core activities. The core activity of PEN America was to advocate for free speech rights and diversion of money towards Defendant’s actions was in fact, a core activity in itself.

It is important to note that Plaintiff’s claims were also tested against another First Amendment retaliation theory, the requirements for which being, (1) a protected right of First Amendment; (2) actions of the Defendant being motivated or substantially caused by his exercise of that right; and (3) injury caused to Plaintiff due to defendant’s actions. Even on this basis, the Plaintiff could only satisfy press corps and security clearance claims.

Thus, while the Plaintiff satisfied the test of constitutional standing to pursue First Amendment claims against the Defendant’s practice of barring access to White House corps and revocation/threat to revoke security clearances, it failed to have a standing on other grounds. The Court also disregarded any possibility of grant of an injunctive relief – doing so would have risked improper judicial encroachment on the executive branch and interfered with its jurisdiction to enjoin the President in the performance of his official discretionary powers. Consequently, Plaintiff’s motion was granted in part and denied in part.

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

An efficient democratic system is pillared on the foundations of free press, operating as an independent check on government actions. In that sense, the First Amendment prohibits government officials from taking punitive acts against disfavored journalists and media entities in retaliation for their speech. In granting declaratory relief, the Court sought to expand expression, especially since Defendant Trump’s credible threats and retaliatory directives to use government power to retaliate against critics improperly had an effect to suppress speech and influence the content of news reporting. In doing so, the Court reaffirmed that although the First Amendment protects the press from government interference, its protections cannot be taken for granted, and are only as strong as the judiciary’s willingness to stop government officials from trampling on the freedom of the press.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

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