On October 16, 2018, PEN American Center, Inc. (“PEN America”) filed a complaint at the United States District Court, Southern District of New York, against Donald Trump in his official capacity as President of the United States. PEN America is an association of writers and other literary and media professionals, including journalists who “work for, or with, the Washington Post, Time Warner, CNN, NBC, the White House press corps, and other entities against whom Trump has used, or threatened to use, the machinery of government to retaliate for or suppress their critical speech.” (Complaint para 78.)
In the Complaint, PEN America alleges that Donald Trump “directed his threats and retaliatory actions at specific outlets whose content and viewpoints he views as hostile.” (Compl. para 2.) PEN America argues that “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.” (Compl. para 1.)
PEN America claims “Defendant Trump unlawfully violated the First Amendment by using and threatening to use the power and machinery of the federal government to punish and intimidate perceived press critics through:
(a) issuing an Executive Order to review raising postal rates [Amazon/the Washington Post];
(b) conducting law enforcement investigations and initiating enforcement actions [Time Warner/CNN];
(c) threatening to rescind broadcast licenses [NBC]; and
(d) restricting access and threatening to revoke credentials for members of the White House press corps” [Jim Acosta and Kaitlan Collins of CNN, April Ryan of the American Urban Radio Networks, and other reporters/journalists of the Washington Post, CNN, NBC News, the New York Times, Politico, The Guardian, BBC, et etc.]. (Compl. para 93.)
As stated in the complaint, 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). Further, it is “well-established that the Constitution protects the right to receive information and ideas,” Kleindienst v. Mandel, 408 U.S. 753, 762 (1972), and moreover the government cannot “orchestrate public discussion through content-based mandates,” United State v. Alvarez, 567 U.S. 709, 728 (2012). These protections “prohibit the government from attempting to restrict or otherwise improperly influence the news coverage of government activities through retaliatory acts and threats.” (Compl. para 13-14.)
PEN America thereby seeks the entry of an Order (a) declaring that Defendant Trump’s retaliatory acts violate the First Amendment and (b) enjoining 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 with intent to retaliate against, intimate, or otherwise constrain speech critical of him or his Administration.” (Compl. page 25.)
This is an important lawsuit. Stay tuned.