For nearly two years now, Donald Trump’s presidency has been marked by his frequent attacks on the press. Now, a group is aiming to hold him legally accountable for these actions.
The PEN American Center, a nonprofit association of writers and other literary and media officials, filed a lawsuit against Trump in federal court Tuesday, alleging that the president’s frequent attacks on the media are in violation of the First Amendment’s protections for freedom of speech and freedom of the press.
While Trump has frequently spoken out against what he believes to be “fake news,” the lawsuit recognized that these verbal attacks are protected under the First Amendment. Instead, the lawsuit is targeting Trump’s “retaliatory directives” to administration officials and “credible public threats to use his government powers against news organizations and journalists who have reported ... in ways he does not welcome.”
“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,” the suit notes, also claiming the president has “intentionally hung a sword of Damocles over the heads of countless writers, journalists, and media entities.”
“Trump’s actions aim to impede professional and investigative journalism, and silence criticism,” the lawsuit alleges.
The suit also points to specific instances in which Trump’s attacks on the press have gone beyond pure rhetoric, including the White House threatening to take away press credentials from certain reporters, the president’s threat to revoke NBC News’ broadcast license over unfavorable coverage and the Department of Justice’s opposition to a planned merger between AT&T and CNN parent company Time Warner.
The PEN American Center, also known as PEN America, cited Trump’s attacks against Amazon, whose CEO Jeff Bezos owns the Washington Post, which has dropped a number of scoops on the president. The U.S. Postal Service announced proposed rate increases on Oct. 11 that included a 12% increase for the parcel select service Amazon uses in its deliveries; the lawsuit claimed this increase would not have happened “but for the president’s clearly expressed desire to punish Amazon for the reporting of the Washington Post.”
The legal challenge is not seeking recourse for these specific actions; rather, the plaintiffs allege that these instances have “create[d] an atmosphere in which journalists must work under the threat of government retaliation.”
PEN America claimed that the Trump administration’s attacks affect not only the president’s specific targets, but “all who write or speak critically about the president or his administration,” as journalists “reasonably perceive a credible threat of government retaliation if the president is displeased by their reporting.”
The attacks on the press also allegedly impact PEN America’s members who consume news about the Trump administration, as the attacks “jeopardize their access to information and their right to receive information.”
“Plaintiff’s members rely on uncensored and unchilled coverage from news outlets that is free from government-imposed chill in their own work, and they rely upon a media environment that is safeguarded from intentional efforts to deter critical coverage through the credible threat of government retaliation,” the lawsuit noted.
If PEN America wins the lawsuit, the group is asking the court to issue a declaration that Trump’s acts violate the First Amendment, as well as enjoin the president from directing any government official “to take any action against any person or entity in retaliation for speech that the president or his administration do not like.”
Tuesday’s lawsuit isn’t the first to challenge Trump on First Amendment grounds, and past lawsuits have had mixed results. The U.S. District Court for the Southern District of New York, where PEN America’s suit was filed, ruled in May that the president cannot legally block people on Twitter. The court said that by preventing the blocked users from interacting with his tweets, Trump “restrict[ed] a real, albeit narrow, slice of speech.”
Another legal challenge, which alleged the president incited violence against protesters at a 2016 rally when he urged supporters to “get ‘em out of here,” failed in federal appeals court in September. Judge David McKeague ruled that “not a single word” of Trump’s speech encouraged violence either “explicitly or implicitly,” declaring, “the reaction of listeners does not alter the otherwise protected nature of speech.”
PEN America, who is being represented by Yale Law School’s Media Freedom and Information Access Clinic and the nonprofit Protect Democracy, reportedly feels more optimistic about their own lawsuit’s chances of success.
“We wouldn’t be filing this lawsuit if we didn’t think it would be meritorious,” Media Freedom and Information Access Clinic co-director David A. Schulz told the Associated Press. “There is so much evidence of the president’s motives.”