Donald Trump Must Face First Amendment Suit for Revoking Press Badges

By Eriq Gardner, The Hollywood Reporter

25 March 20

A judge allows a limited lawsuit from PEN America.

New York federal judge on Tuesday ruled that PEN America may proceed on some of its claims against Donald Trump. Specifically, the U.S. president must continue to face allegations of violating the First Amendment by revoking press badges and security clearances.

Pen America is a literary organization that fights to protect free speech. The group sued Trump in October 2018 for using his power to punish and intimidate The Washington Post, CNN, NBC, the White House press corps and others who cover his administration.  

Trump, in reaction to the lawsuit, moved to dismiss with the argument that PEN lacks standing to sue because none of its members have been injured (except for CNN's White House correspondent 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.

U.S. District Court Judge Lorna Schofield rules Tuesday that PEN does have standing for at least some of the claims — revocation of press badges and security clearances — and can "establish a causal connection between the injuries and the challenged conduct."

Here's the full opinion.

The judge says the plaintiff may proceed in an attempt to get a declaratory ruling that President Trump is violating the First Amendment. PEN, however, won't be able to obtain an injunction.

"The Complaint explicitly pleads, quoting from the Press Secretary’s e-mail, that [Trump] and his staff are ready to heed a court decision on proper rules of conduct for governing the White House press corps," states the opinion.

This decision comes merely a day after the D.C. Circuit Court of Appeals considered whether a lower judge was correct to order President Trump to restore the press badge of Playboy's White House correspondent Brian Karem. PEN's dispute could provide some legal clarity beyond that singular situation.

However, PEN won't get to challenge some of Trump's other conduct allegedly flouting the First Amendment.

Schofield writes the literary group does not have associational standing to bring a suit over Trump's threats to revoke broadcast licenses, the Department of Justice's challenge to the AT&T-Time Warner merger and regulatory threats to internet companies — among other things.

PEN America CEO Suzanne Nossel commented about the judge's decision: "It’s hard to think of a moment in American history in which unvarnished, accurate news reporting has mattered more than it does now. This decision is a victory not just for PEN America and our own writers, but also for the journalists and media outlets doing the vital, risky work of keeping us all informed. But above all, it is a win for all individuals who depend on a free press to dig out the facts and hold leadership accountable without fear of reprisal. We sued the president because we believe the First Amendment prohibits him from retaliating against speech he dislikes. We are grateful that this essential suit can move forward, vindicating the rights of all those who rely on a free press."