PEN America is a New York nonprofit dedicated to promoting creative expression and defending the rights upon which it’s predicated: freedoms of speech and press. Its members range from journalistic to literary to media professionals. There’s no shortage of issues for the organization to tackle, especially now, but PEN’s “bedrock work” is “long-term advocacy on behalf of individual writers who are being punished because of their work.”
They take exception to Trump’s war against the press. Represented by Protect Democracy and the Yale Law School Media Freedom and Information Access Clinic, PEN America is moving beyond criticism to legal complaint. They’re asking a federal district court, the U.S. District Court for the Southern District of New York, to declare Trump’s retaliatory actions unconstitutional under the First Amendment and to block Trump from retaliating or directing retaliation against someone based on their speech.
Their challenge is meaningful, as the organization was founded in 1948. It’s also nonpartisan. PEN “forcefully raised concerns about free expression infringements during the Obama, Bush, and other prior administrations.” Trump’s not even the first president PEN has sued.
It’s a pretty complaint. PEN takes care to catalogue Trump’s verbal attacks on the press (“disgusting,” etc.), then notes that these comments, while anti-democratic, are not the basis for this suit. The problem is, they point out, that he has threatened to engage, and he has engaged, in conduct intended to retaliate against specific news organizations and journalists he disagrees with.
PEN says Trump’s retaliatory measures against Amazon—motivated by a desire to strike at founder Jeff Bezos, also owner of the Washington Post—have included criticizing Amazon in a way that affected its stock, telling USPS to re-evaluate its rates for Amazon, and personally directing the head of USPS to double rates for Amazon and its ilk.
Trump has also openly referred to his vendetta against CNN.
In this case, his dislike has bled over into hostility toward parent company Time Warner. Back in 2016, PEN says, he threatened to push the Department of Justice to block Time Warner’s merger with AT&T. That’s exactly what he did, despite the norm for vertical mergers being approval. DOJ’s effort to block the merger died in district court, but, as PEN has pointed out, CNN and Time Warner expended significant resources in the process.
A great number of Trump’s actions against and threats toward individual reporters and outlets vis-á-vis access have been public—very public. To name a few, Trump has warned reporters he’ll take their press credentials and told networks he’ll go after their broadcast licenses. Imagine what he’s doing and saying off the record.
Trump’s actions prove his threats are credible, not mere posturing. One reporter, Kaitlan Collins, was banned for questioning Trump.
PEN’s suit is both solid and important. Here’s Erwin Chemerinsky, Dean of Berkeley Law School at the University of California. (He’s constitutional law’s Mick Jagger.)
“No president in history has repeatedly threatened the press as Donald Trump does on a regular basis. Under long-standing First Amendment precedents, these threats violate freedom of press and the First Amendment. This lawsuit addresses an urgent threat to our Constitution.”
Sonja West, a First Amendment expert at the University of Georgia Law School, focuses on the harms the lawsuit seeks to avert or mitigate.
“President Trump has a pattern of trying to use the power of the federal government to punish the press for coverage he dislikes. Make no mistake, this should alarm us. Lobbing insults at reporters is one thing, but this kind of tactic represents a far more serious threat to press freedom. When a president crosses the line from insulting the press to turning the wheels of government as a means to retaliate against news organizations for their reporting, the potential First Amendment violations become very real. This lawsuit is asking the courts to make clear that the president cannot violate the Constitution’s vital protections for press freedom.”
PEN’s is just the latest addition to the bevy of suits directed against Trump by everyone from individuals to associations to businesses to members of Congress. By my count, Trump’s currently being sued under at least four amendments to the Constitution. It’s another ignoble first.