Literary Group Defends First Amendment Suit Against Donald Trump

The DOJ asked a New York federal judge to dismiss PEN America's lawsuit, and the group is drawing upon this week's reported change in White House press pass standards in its reply.
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President Trump

The same week it was reported that dozens of journalists allegedly lost their White House press credentials under a new policy, a group suing President Donald Trump over alleged First Amendment violations is defending the viability of its lawsuit to a New York federal judge.

PEN America, an organization that fights to protect free speech on behalf of journalists, writers and literary professionals, in October sued Trump over his alleged censorship of and retaliation against the press.

The DOJ in April filed a motion to dismiss the lawsuit, arguing that PEN lacks standing to sue because none of its members have been injured (except for CNN's Jim Acosta whose pass was reinstated after being revoked), that it failed to state a plausible claim and that the court lacks the power to control the official, discretionary actions of a sitting president.

The timing of the press pass protocol change could prove fortuitous for PEN when it comes to the standing argument.

"As this brief was being finalized, it came to light that PEN America member Dana Milbank of the Washington Post had his White House press credentials revoked under a new policy that has affected dozens of other journalists," states a Friday filing. "The new policy terminated access for most members of the White House press corps, but allowed credentials to be restored for many under subjective and poorly defined exemptions for 'senior journalists' and those who meet 'special circumstances.'"

PEN alleges that Milibank's criticism of Trump is what led to his request for an exemption being denied, even though he had held a press pass for more than two decades. 

Further, the group argues that it doesn't even need to show one of its members was deterred from exercising free speech rights to establish standing, only that the conduct "is likely to deter a person of ordinary firmness" from doing so. It also argues that Acosta's experience supports its standing. Even though his credentials were restored after he sued, the White House "adopted new restrictions — mentioning Acosta by name — that threaten future revocations in the event of any transgressions that may include 'unprofessional conduct.'" PEN argues standing is established when "the threat of government misconduct is ongoing."

In defending the plausibility of its claims, PEN argues it has sufficiently alleged both general threats to retaliate against the media and specific instances of censorship. "Defendant’s threats and regulatory actions amount to an ongoing censorship-and-retaliation scheme that targets journalists and news organizations perceived as critical of Defendant and his Administration," states the filing. "This scheme is not aimed simply at suppressing the speech of any one journalist or news organization, but rather intends to chill the speech of all journalists, including PEN America’s members."

When it comes to addressing the court's power in this situation, PEN turns to U.S. District Judge Naomi Reice Buchwald's decision last year to issue a declaratory judgment that Trump violated the First Amendment by blocking Twitter users based on their political views. Even absent an injunction, PEN says the court can assume Trump is "substantially likely to abide by a district court's interpretation of the constitution." (Trump appealed and is awaiting a decision from the 2nd Circuit.)

Read PEN America's full filing below.