In light of the pipe bomb that was sent to CNN today, for all the attacks on journalists, for all the disparaging of Freedom of Speech, and for all the purveyors of creative thought and opinion, this lawsuit is especially timely to whoever uses the pen to fight the sword. This is for writers everywhere.
NEW YORK, October 16, 2018—PEN America, the leading national organization representing writers and literary professionals and defending free expression, filed a lawsuit today against President Donald J. Trump for using the powers of the federal government to retaliate against journalists and media outlets he finds objectionable, in violation of the First Amendment. PEN America is represented in the case by the nonpartisan nonprofit Protect Democracy and the Yale Law School Media Freedom and Information Access Clinic.
The filing asserts that, while President Trump is free to express his own views critical of journalists and media outlets, his use of the regulatory and enforcement powers of government to punish the press for criticism of him is unconstitutional. The complaint, filed in United States District Court for the Southern District of New York, asks the court to enter a declaratory judgment that the President’s retaliatory actions violate the First Amendment and enjoin the President from directing any employee or agency of the federal government to take any action against the press in retaliation for coverage the President views as hostile.
The complaint makes reference to incidents that it argues were intended to make clear to writers, reporters, and commentators that if they criticize the President, they or the media entities they represent could face reprisals by the government. These incidents include:
- The Department of Justice’s antitrust enforcement action against the merger of CNN’s parent company, Time Warner, with AT&T, coming in the wake of credible threats by the President to retaliate against CNN’s coverage of him and his Administration;
- The President’s Executive Order to the U.S. Postal Service to examine raising postal rates on Amazon, founded and run by Jeff Bezos, following the President’s threats to retaliate against coverage that the President disapproved of by the Washington Post, which Jeff Bezos owns. A retaliatory action that led, on October 11, 2018, to the U.S. Postal Service announcing proposed rate increases, including a proposed 12-percent increase for the Parcel Select service used by Amazon;
- The President’s threats to revoke White House press credentials, which were followed by directing the removal of a White House correspondent from a press event covering the President, in retaliation for editorial decisions that reporter had made; and
- The President’s threats to revoke broadcast licenses of television stations whose coverage he disapproves of.
The complaint argues that these and other similar actions intentionally place a sword of Damocles over the heads of all journalists and writers covering the President, including PEN America members.
“While PEN America members, and many media outlets and journalists, have been unflinching in their coverage of the Administration, the First Amendment protects the press from having to brave government retaliation and threats in order to do their work,” said PEN America CEO Suzanne Nossel. “We have grown sadly accustomed to near daily attacks by President Trump on the media, but when his speech crosses the line into retaliatory actions or credible threats of reprisal against critics, the President’s actions are not only egregious, but also unconstitutional. At a time when hostility toward the press has fostered a climate of threats and even violence, it is essential for courts to step in and affirm the role of the First Amendment and free press in our democracy. There is a natural tension between leaders and the press corps charged with holding him accountable, but here in the U.S. we have constitutional safeguards that prevent the use of the power of government to punish and intimidate the media.”
“As an organization of working writers united in defense of free expression, we are alarmed at the climate of hostility and threat in which those who offer political reportage and commentary must now operate,” said PEN America President, journalist, and Pulitzer Prize-winning novelist Jennifer Egan. “PEN America has long risen to the defense of writers around the world who face peril for expressing themselves. With journalism under unprecedented attack from the White House, we feel compelled to fight back.”
The complaint reaffirms that the First Amendment prohibits government actors from using their power in ways that punish the content of reporting or that are intended to stoke intimidation through threats of government action. It notes that individual writers, including freelancers and especially those who may be vulnerable for other reasons—by virtue of their immigration status, for example—may understandably think twice before publishing pieces or commentary that could put them in the White House’s crosshairs.
“The governing law is clear: President Trump has the right to express views about the press, loudly and often. He does not have the right to use the powers of his office to punish those who disagree with him and criticize him,” said David Schulz of the Yale Media Freedom and Information Access Clinic.
President Trump has already faced a number of First Amendment challenges. In one case, a federal district judge, presiding in the same district in which this case has been filed, declared that President Trump’s practice of blocking critics on his Twitter account violated the First Amendment. The remedy sought in PEN America’s complaint is similar. In another case, the Sixth Circuit Court of Appeals rejected an allegation from protesters who were roughed up during a campaign rally that then-candidate Trump’s calls from the podium incited a violent riot.
This suit comes at a worldwide moment of reckoning for the relationship between governments and the journalists who criticize them. As respect for the role of the press erodes, illustrated most egregiously in recent days with the crisis over the fate of Washington Post contributor Jamal Khashoggi, it is vital to underscore and enforce the First Amendment protections that have always set the U.S. apart as a standard bearer for press freedom. That’s what this suit aims to do.
“President Trump’s anti-press actions are taking place at a time when autocrats around the world, including in Hungary, Poland, Saudi Arabia and Turkey, have been ramping up their attacks on a free press,” said Kristy Parker, Counsel to Protect Democracy. “The difference between the United States and those countries is that the United States has a long-standing constitutional tradition that prevents such behavior and an independent court system designed to step in when violations occur.”
Protect Democracy has highlighted the myriad ways in which President Trump appears to be following a playbook used by other autocratic rulers around the world. While democracy was ascendant around the globe in the latter half of the twentieth century, that trend has come to an alarming halt. According to data from Freedom House, an independent watchdog that tracks free expression globally, the spread of democratic regimes peaked around 2005 and has been in retreat ever since. The new breed of autocratic-style leaders does not vanquish democracy overnight. Rather, modern autocrats pull at the threads of democracy incrementally, finding vulnerabilities in democratic systems that can be exploited. Using the power of the government to deliberately intimidate dissenting voices, including those of writers and journalists, is one such strategy. In some of the aforementioned countries, their leadership has succeeded in eroding democracy as the direct result of a lack of a truly independent judicial check. It is against this backdrop that today’s lawsuit has been filed.
Since the 2016 presidential campaign, PEN America has decried efforts to foment hostility and distrust toward the media. Through research reports, petitions, and campaigns, PEN America has mobilized to defend the role of the press as a cornerstone of our democracy. In 2018, PEN America initiated a national outreach effort to activate its members through public forums on media freedom, advocacy for local news outlets, and media literacy workshops. A cornerstone of this effort is the Press Freedom Incentive Fund, which supports initiatives that build new local constituencies ready to defend press freedom. PEN America has fought against encroachments on free speech by United States presidential administrations for decades, including through advocacy for whistleblowers and journalists targeted for their reporting. The organization also has a long history of litigation challenging government encroachments on freedom of expression, including the blocking of prominent writers and scholars from visiting the United States due to their critical speech pursuant to the USA PATRIOT Act, and the mass warrantless wiretapping of international electronic communications.
Read quotes on today’s filing from experts here.
The full complaint can be read here.
More information about this case can be found at pen.org/pen-america-v-trump
With Election Day less than a month away, I asked a sampling of my Freshmen college students whether they had registered to vote or not. We are preparing to write an essay on how to define what an American is, and I wanted to stress that suffrage, one of the bedrocks of citizenry, is not only a right but a responsibility. I came across a quote from Michelle Obama about voting and it went something like, you don’t let your elders choose your music or your clothes, why would you let them choose your future? And this struck me as so realistic, as there are too many young people who have become not only apathetic about what the country is going through, but more than likely, ignorant of it. Many feel either helpless to change anything, or that between their college classes, their jobs, their friends, and their relationships, they feel that world issues are an “adult thing,” and even though they may be eighteen or twenty or more, it’s something for old people to worry about.
Ah, youth. There really is nothing like it. And I tell them constantly to get their face out out their phones and instead of become digital zombies, go out there and eat life. You’re young, everything works. your bones don’t ache, and you can stay up all night. I know I did. But I also went to take a look at my high school records on the day I turned eighteen, simply because as an adult, I knew I could. And because I couldn’t wait to swallow adulthood whole, I also registered to vote. I couldn’t wait to affect change, I wanted to be fully-functioning member of society, I wanted to be part of the process. I wanted to matter.
You could, too, if you haven’t already. Go here and register to vote, and let them know you’re a force to be reckoned with. And you’re watching.
It’s snowing today in New Jersey. Just as it was snowing last week. And the week before. And the week before that. In fact it’s been snowing every week for the whole month. Sometimes twice. Here’s my picnic table, covered with plastic on my deck, still uncovered for the season because I don’t remember the last time I saw sun. On the East Coast, we’ve had four Nor’easters, three in the last two weeks. Yesterday was the first day of spring, and two days ago, my husband absconded with these daffodils from the neighbor’s backyard. (So lovely, aren’t they? Everything illicit always is! )The yard should be full of them by now, but Spring seems to be on hiatus until nature gets done with it tantrum. Maybe its just getting back at us for ignoring its maintenance so long. Like cleaning up after ourselves when we take a dump on it, for not respecting it, for not putting our money where our drain pipe is. Makes me wonder what it looks like in Paris this spring, where the rest of the world seems so much more in accord.
The father of our country has been getting a bit of bad press lately. There’s been chatter going around that he’s no different from General Robert E. Lee, saying they both were Southerners, they both owned slaves, they both revolted against an oppressive government. The chatter says if you’re tearing down monuments of Gen. Lee, you should also be pulling down monuments of Washington, as what’s the difference? They were both flawed men, both incited dissent and revolution, both, I don’t know–rode horses (thanks, Brian Williams). And if we want to be perfectly truthful, both were men of their times. But there’s a distinct difference that some don’t get. Or rather, refuse to acknowledge.
What Washington did, along with Jefferson and Franklin and Adams to name a few, was extraordinary in its audaciousness. They dared to propose a government not of kings but of laws, not of a hereditary monarchy but of the people. Of course it was exclusionary, but it allowed for evolution, to create a more perfect union, to strive for …the pursuit of happiness. This American Revolution began even before Jefferson’s pen scratched out its principles, because it was so revolutionary in its thinking it instantly made obsolete every form of government before it. These men were not only of their time, but of the future. They envisioned a way forward, they dared to think that all men were created equal, even if all men at that time weren’t. But toward that more perfect union they marched, this government of laws that no man was above, in a sincere effort to get it right.
But Gen. Lee disagreed and led a march toward the past. He was defeated, as all backward thinking usually is. And in that, we find another truth.
We won’t go there again. We can’t. Because it’s not only in our nature to not go back, it’s in our collective DNA. We’re still marching toward that more Perfect Union.
I cannot even begin to tell you how I feel these days. Off-kilter may be a good descriptor. Or how about on edge. Nervous. Keyed up. Obsessed (with the news, at least). Angry. Defensive. Inspired. Hopeful. Determined. Renewed. The last few words come courtesy of what I’ve seen happening around me, on the Mall, at airports, in public squares. People becoming more engaged in the process. Millennials taking to the streets and making their voices heard. Journalism has been reborn and invigorated (when’s the last time you heard about a Kardashian?) recalling its roots and the First Amendment. I mean seriously, who’d have thought Americans would experience a world we previously imagined only in dystopian fiction? But it it’s real, and if you think it’s not happening, look around and see the signs invading our daily lives. I can even give you an example of how it’s affecting my writing. My work-in-progress features a man who’s in the U.S. armed forces. I like this character, he’s smart and funny and charming, and has all the qualities–and foibles–I’d expect from a fully functioning rational human being. But since he’s an officer in the service, I can’t help thinking how he’d view his commander-in-chief, how he’d react if he were sent to engage in a military action he’d find indefensible. Would he let his moral compass guide him? Or would he blindly obey orders because that’s what all military are supposed to do? I just don’t know. We are living in extraordinary times. I told a friend the other day this is what it must have felt like right before the Civil War. One thing I do know is I’ve never felt more patriotic, and that’s not just jingoism, kids. I’ve never believed in the wisdom of our founding fathers more. Because their true genius lay in the fact they knew their experiment in democracy was flawed, trusting in future generations to pursue a more perfect union. Which is why we need to keep working on it going forward, and never ever back, never again.