Pen Am. Ctr., Inc. v. Trump

• Decision Date: 24 March 2020
• Docket Number: 18 Civ. 9433 (LGS)
• Citation: 448 F.Supp.3d 309
• Parties: PEN AMERICAN CENTER, INC., Plaintiff, v. Donald J. TRUMP, Defendant.
• Court: U.S. District Court — Southern District of New York

448 F.Supp.3d 309

PEN AMERICAN CENTER, INC., Plaintiff,

v.Donald J. TRUMP, Defendant.

18 Civ. 9433 (LGS)

United States District Court, S.D. New York.

Signed March 24, 2020

Allison Murphy, Ian Michael Bassin, Kristy Parker, Protect Democracy, Robert Corn-Revere, Ronald Gary London, Davis, Wright, Tremaine, LLP, Washington, DC, Justin Florence, Protect Democracy, Watertown, MA, David A. Schulz, Ballard Spahr LLP, Laurence Michael Schwartztol, American Civil Liberties Union, New York, NY, Francesca Lina Procaccini, Yale Law School Media Freedom & Information Access Clinic, New Haven, CT, John Langford, Protect Democracy, Los Angeles, CA, Steven Arthur Hirsch, Keker & Van Nest, LLP, San Francisco, CA, for Plaintiff.

Steven John Kochevar, United States Attorney's Office, New York, NY, for Defendant.

OPINION & ORDER

LORNA G. SCHOFIELD, District Judge:

Plaintiff Pen American Center, Inc. ("PEN America") seeks a declaratory judgment and injunctive relief against Defendant, President Donald J. Trump, for his alleged suppression of media free speech. Defendant moves to dismiss the Amended Complaint (the "Complaint") under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiff lacks standing, the Complaint fails to state a claim and the Court lacks the authority to enjoin Defendant. For the reasons below, the motion is granted in part and denied in part. Specifically, claims for declaratory relief, based on Defendant's practices of (i) revoking or threatening to revoke White House press credentials and (ii) revoking or threatening to revoke national security clearances, may proceed. Injunctive relief is improper. For all other allegations, Plaintiff lacks standing.

I. BACKGROUND

The following facts are drawn from the Complaint and accepted as true for purposes of this motion only. See Hu v. City of New York , 927 F.3d 81, 88 (2d Cir. 2019).

PEN America is a nonprofit association of writers, literary and media professionals, which defends the free speech rights of journalists in the United States and abroad. Among other things, it "monitors the government's interactions with writers and journalists and produces informational content related to its advocacy work." Its advocacy and research depend "heavily on the quality reporting" in the press. PEN America members include journalists for the Washington Post , Cable News Network ("CNN") and National Broadcasting Company ("NBC"), who report on Defendant's Administration -- for example, Jim Acosta of CNN.

The Complaint alleges that, since assuming office, Defendant has engaged in a "campaign of intimidation against critical reporting." Defendant has used "the power and authority of the United States government" "to take retaliatory actions and [make] credible public threats" against reporters who are critical of his Administration. Defendant's motivation is to punish and chill critical press, and he has succeeded in doing so. According to a survey of PEN America members, thirty-one percent have avoided publishing on certain topics due to concern that Defendant will retaliate against them. One percent have been fired or laid off and two percent demoted, replaced or denied an assignment as a result of Defendant's actions, and four percent have been asked to revise a piece before publication out of concern about Defendant's reaction. Fifty-two percent believe public criticism of his Administration would put them at risk.

The Complaint alleges five sets of retaliatory acts and threats by Defendant against critical press: (i) his revocation or threats to revoke the White House press credentials of the White House press corps, or otherwise barring their access to press conferences, (ii) revocation or threats to revoke government officials' security clearances, due to the officials' critical commentary about Defendant in the press, (iii) threats to revoke television stations' broadcast licenses, (iv) issuance of an executive order directing the United States Postal Service ("USPS") to consider raising postal rates, which would impact Amazon.com's ("Amazon's") shipping costs, and in turn, Jeff Bezos, the main shareholder of both Amazon and the Washington Post , and (v) a directive to the Department of Justice ("DOJ") to challenge the Time Warner-AT & T merger, out of hostility toward Time Warner's subsidiary CNN, and other regulatory and investigatory threats aimed at internet companies. These actions, according to the Complaint, have chilled the speech of reporters and contributors to the press, who fear that Defendant will retaliate against them for any critical positions they take on Defendant.

A. Barring Access to the White House Press Corps

Defendant has repeatedly barred the access of the White House press corps to press conferences and the White House entirely, after members speak or report critically about Defendant. The press corps are reporters stationed at the White House who cover the President and his Administration. To report from the White House, Air Force One and other locations where the President and his staff meet with the press, press corps members must have White House press credentials.

On February 24, 2017, the White House Press Secretary ("Press Secretary") held an off-camera session in his office, allowing only a select group of reporters to attend, and denying access to CNN, The New York Times, Politico, The Guardian and the British Broadcasting Corporation ("BBC"). On July 25, 2018, the Press Secretary barred a CNN reporter from a White House press event, after Defendant deemed an earlier question the reporter had asked "inappropriate." In November 2018, Defendant threatened to revoke the press credentials of reporters who failed to show him "respect." On the social media platform Twitter, Defendant has posed rhetorically whether to "[t]ake away credentials" of "Network News" because its coverage of the Administration is "negative (Fake)."

Defendant has specifically targeted PEN America member and CNN White House press corps reporter, Jim Acosta. On December 12, 2017, the Press Secretary told Mr. Acosta that he would be banned from future White House press sessions if he posed questions during a particular session. Later, at a different press session, Mr. Acosta asked the President critical questions about the Administration's U.S.-Mexico border activity, leading Defendant to call Mr. Acosta a "rude, terrible person" who "shouldn't be working for CNN." The Press Secretary subsequently stripped Mr. Acosta's press credentials on November 7, 2018. The White House falsely claimed it did so because Mr. Acosta had breached decorum and placed his hands on a White House intern who had tried to take away a microphone. Six days later, on November 13, 2018, Mr. Acosta obtained a preliminary injunction against Defendant and White House staff, which temporarily restored his press credentials. On November 19, 2018, the parties the lawsuit, and Mr. Acosta has maintained his press credentials since.

On the day of the settlement, the Press Secretary e-mailed the entire White House press corps, outlining rules of conduct. If "unprofessional behavior occurs" or if "a court should decide that explicit rules are required to regulate [the] conduct" of the press corps in the White House or Air Force One, the White House would adopt further rules. The e-mail expressly stated the rules of conduct were a response to the "behavior Mr. Acosta displayed at the November 7, 2018 press conference" and the "position taken by CNN."

B. Revocation of Security Clearances

Defendant has threatened to revoke or has revoked the security clearances of former government officials who comment critically about Defendant in the press. Security clearances are typically stripped only for cause by the federal agency that originally issued the clearance. Former officials maintain security clearances to continue advising successors and assisting the federal government as needed.

On July 23, 2018, the Press Secretary announced that Defendant was considering revoking the security clearances of six former high-level national security officials, citing their critical commentary about Defendant in the press. Shortly before the announcement, four of the officials had spoken to the press, in their capacity as regular media contributors. On August 15, 2018, Defendant revoked the clearance of one official, former Central Intelligence Agency Director and MSNBC contributor John Brennan.

C. Threats to Revoke Broadcast Licenses

On Twitter, Defendant has questioned whether to challenge or revoke the broadcast licenses of networks whose reporting he dislikes. On October 11, 2017, Defendant tweeted: "With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!" Later that day, he tweeted that the networks' "licenses must be challenged and, if appropriate, revoked." On December 16, 2018, Defendant suggested that NBC and other networks' coverage "[s]hould be tested in courts," because the networks "[o]nly defame & belittle! Collusion?"

D. Postal Rates Executive Order

Defendant allegedly retaliated against the Washington Post through the publication's owner, Jeff Bezos, and Mr. Bezos' e-commerce company, Amazon. On April 12, 2018, Defendant issued an executive order, directing the USPS to examine its "unsustainable financial path" and to consider raising the "pricing of the package delivery market." The USPS' proposals for new shipping rates, published in October and December 2018, risked increasing Amazon's delivery costs significantly.

For over a year before the executive order, Defendant was hostile toward the Washington Post , Amazon and Mr. Bezos, all of which he associates. Defendant's tweets use the moniker "Amazon Washington Post" or "#AmazonWashingtonPost." After critical reporting by the Washington Post , Defendant called the newspaper a "lobbyist" and "weapon" for Mr. Bezos, and threatened to raise Amazon's shipping rates. His...