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Despite his turbulent relationship with the press, President Donald Trump says he hasn’t actually chilled free speech and is asking the court to toss a lawsuit arising from his alleged retaliation against negative media coverage.
PEN America in October sued Trump, claiming he has repeatedly violated the First Amendment and asking the court to enjoin him from directing any officer in his administration to retaliate against speech that is critical of him. The group specifically points to Trump’s calls to raise postal rates for Amazon, his threats to revoke NBC’s broadcast licenses and his limiting of access for White House reporters — as well as the Department of Justice’s lawsuit to stop AT&T’s merger with Time Warner, the subsidiary of which (CNN) is often criticized by the president. “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 America Center, Inc,” states the complaint. “His actions seek to accomplish indirectly what the President cannot do directly: impede professional and investigative journalism, and silence criticism.”
The DOJ on Wednesday filed a motion to dismiss the complaint, arguing the association of writers and artists lacks standing to sue him and failed to state a plausible claim. The government argues PEN’s only member mentioned in the complaint is reporter Jim Acosta, whose White House access was stripped and subsequently reinstated after CNN sued.
“To the extent that plaintiff has alleged injuries to its members, such injuries are too subjective and insufficiently imminent to support this Court’s jurisdiction,” states the filing, which also argues that PEN lacks standing to sue on its own behalf and points to the rejected lawsuit from the Center for Responsibility and Ethics in Washington over Trump’s alleged violations of emoluments clauses.
Plus, despite any perceived threats, the DOJ argues that Trump hasn’t actually impeded the free press — and it claims the court lacks the power to control the official, discretionary actions of a sitting president.
“Plaintiff has failed to allege that its own speech or the speech of any of its members with standing motivated defendant to take any action — or even that defendant was aware of any such speech,” states the motion, which is posted below. “Its allegations of chilled speech and receipt of information are too generalized to support relief: plaintiff has not identified any speaker — a member of plaintiff or not — whose speech has actually been chilled.”
PEN America CEO Suzanne Nossel on Thursday sent The Hollywood Reporter a statement in response to the motion. “We’re not surprised by President Trump’s effort to get this case dismissed and protect what he views as his own prerogative to threaten and retaliate against journalists and the media,” she said. “In the United States of America, journalists should not have to carry out their work under credible fear that the President may retaliate against them for doing their job. We look forward to filing our response to the government’s motion and continuing to defend the free expression rights of our members.”
April 11, 8:45 a.m. Updated with a statement from PEN America.
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