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Accusing Trump of Crossing Constitutional Line, PEN America Sues Over Threats and Reprisals Against Free Press

"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."

The lawsuit filed by PEN America and its partners 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." (Image: PEN America)

Arguing that President Donald Trump has crossed the line from "verbal attacks on the press" that are protected under the his First Amendment rights into using his authority to punish journalists and media outlets he dislikes with threats of intimidation or reprisal, the literary rights group PEN America has announced a lawsuit against the president in order to bring an end to such attacks.

The lawsuit (pdf) brought in a Manhattan federal court on Tuesday—with PEN represented by the nonpartisan nonprofit Protect Democracy and the Yale Law School Media Freedom and Information Access Clinic as co-counsel—states that while Trump has constitutionally-protected rights and "is free to criticize the press vehemently," the president "is not free to use the  power and authority of the United States government to punish and stifle it."  

Citing specific incidents in which Trump threatened the business interests of owners or parent companies of media outlets as well as intimidating journalists whose coverage he appeared to dislike, PEN America highlighted the following incidents:

  • The Department of Justice’s antitrust enforcement action against the merger of CNN’s parent company, Time Warner, with AT&T, coming in the wake of credible threats by the President to retaliate against CNN's coverage of him and his Administration;
  • The President’s Executive Order to the U.S. Postal Service to examine raising postal rates on Amazon, founded and run by Jeff Bezos, following the President's threats to retaliate against coverage that the President disapproved of by the Washington Post, which Jeff Bezos owns. A retaliatory action that led, on October 11, 2018, to the U.S. Postal Service announcing proposed rate increases, including a proposed 12-percent increase for the Parcel Select service used by Amazon;
  • The President's threats to revoke White House press credentials, which were followed by directing the removal of a White House correspondent from a press event covering the President, in retaliation for editorial decisions that reporter had made; and
  • The President's threats to revoke broadcast licenses of television stations whose coverage he disapproves of.

"Trump's anti-press actions are taking place at a time when autocrats around the world, including in Hungary, Poland, Saudi Arabia and Turkey, have been ramping up their attacks on a free press," said Kristy Parker, Counsel with Protect Democracy. "The difference between the United States and those countries is that the United States has a long-standing constitutional tradition that prevents such behavior and an independent court system designed to step in when violations occur."

Jennifer Egan and Suzanne Nossel, PEN America's president and chief executive officer respectively, said PEN America's mission compels them to act and while Trump's "tirades against the press are not new," specific attacks on the free press must not go unchallenged.

"When President Trump crosses the line and threatens to use his authority to punish the media, or actually does so," said Egan and Nossel in a public letter, "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."

Nossel, speaking with the Associated Press in an interview, said that beyond his spurious use of terms like "fake news" and "enemy of the people," Trump has said and done numerous things to raise concerns that he is "actually extracting reprisals on the media for coverage he considers unfavorable" to him and his agenda.

According to AP, PEN is asking that Trump be enjoined from "directing or ordering any officer, employee, agency, or other agent or instrumentality of the United States government to take any action against any person or entity with intent to retaliate against, intimidate, or otherwise constrain speech critical of him or his Administration." 

The group is seeking no money beyond "costs, including attorneys' fees,” and other "relief as the Court deems just and proper."

Correction: Due to editing errors, an earlier version of this piece characterized Protect Democracy as a party to the lawsuit, not the legal firm representing PEN America in its complaint. Those details have been corrected.  Other language has also been adjusted to clarify the specific nature of the complaints against the president.

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