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Opinion Suing Trump for endangering the First Amendment

President Trump speaks to the press as leaves the White House by the South Lawn and boards Marine One en route to Council Bluffs, Iowa, for a “Make America Great Again” rally Oct. 9. (Olivier Douliery/AFP/Getty Images)

President Trump has First Amendment rights like everyone else, but he doesn’t have the right to use the instruments of governmental power to impair others’ First Amendment rights. That’s the premise of a new lawsuit filed by the nonpartisan group Protect Democracy on behalf of PEN America (hereinafter, PEN), an organization representing journalists. “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,” PEN’s press release explains.

In part citing Trump statements against Washington Post owner Jeffrey P. Bezos, PEN seeks “a declaratory judgment that the President’s retaliatory actions violate the First Amendment and [to] 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 press release continues:

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.

The complaint says straight away that it’s not going after Trump for his “enemy of the people” sort of rhetoric: “These ongoing verbal attacks on the press and others exercising their own First Amendment rights, while troubling and anti-democratic, are not the basis upon which Plaintiff PEN America seeks relief.”

Rather, the complaint points to specific actions in which Trump attempted to use his powers or threatened to use his powers to stifle dissent. “Defendant Trump has repeatedly called for action to punish the online retailer Amazon because Jeff Bezos, its chief shareholder and CEO, owns the Washington Post, whose accurate coverage of his Administration the President finds objectionable,” PEN asserts. “President’s threats of government action, alone, caused a pronounced dip in Amazon’s stock value in July 2018.”

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Likewise, PEN alleges, “Defendant Trump similarly has threatened and taken action to retaliate against CNN because he objects to its coverage of him. When Defendant Trump first learned during the 2016 campaign that CNN’s parent company, Time Warner, planned to merge with AT&T, he publicly threatened to use the Justice Department’s antitrust merger-review process to retaliate against CNN for its news coverage. Following Defendant Trump’s election, the Justice Department sued to block the merger, despite a long track record of not opposing vertical mergers like the one proposed between Time Warner and AT&T.”

Other objectionable actions include threats to pull press credentials and broadcast licenses.

The lawsuit may seem novel, but it has clear precedent on its side, including case law from the Second Circuit, where the case was filed. In 2003, a Second Circuit three-judge panel that included then-Judge Sonia Sotomayor found that a pastor and his ministry could sue Staten Island Borough President Guy Molinari over a letter to a billboard company, PNE, telling it to take down plaintiffs’ message condemning homosexuality. The court had to decide whether “Molinari’s letter to PNE was an unconstitutional ‘implied threat[ ] to employ coercive state power to stifle protected speech,’ or a constitutionally-protected expression by Molinari of his own personal opinion.” The court held, “What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.” The court held, “Drawing all reasonable inferences from plaintiffs’ factual allegations in their favor, we conclude that Molinari’s letter could be found to contain an implicit threat of retaliation if PNE failed to accede to Molinari’s requests.” The case was therefore allowed to proceed.

Likewise, in 2015, the Seventh Circuit upheld a suit brought by adult services advertiser Backpage against the Cook County sheriff, Thomas J. Dart, for sending “letters to the major credit card companies urging them to prohibit users from using the companies’ services to purchase Backpage ads (whether those ads were legal or not). Backpage sued the sheriff, arguing the communications with the credit card companies were a free speech violation.”

Judge Richard Posner wrote:

It’s true that Visa filed an affidavit stating that “at no point did Visa perceive Sheriff Dart to be threatening Visa.” But what would one expect an executive of Visa to say? “I am afraid of the guy?” “He is in effect calling me an accomplice of a criminal organization (Backpage), and I’m afraid he might pull strings to get me investigated and even prosecuted by any one of several federal or state agencies?” More significant than Visa’s denial of having succumbed to Sheriff Dart’s pressure tactics is the statement in the affidavit that the withdrawal of credit card services from Backpage “follow[ed] communication with Sheriff Dart’s staff” and with “Visa Legal Department” personnel.

Dart could express his opinion, Posner acknowledged, but what he couldn’t do was threaten, even in a generic way, that the credit card companies would suffer harm if they continued doing business with Backpage.

PEN’s lawsuit is not brought on behalf of those whom Trump threatened (e.g. The Post, Time Warner). Instead, it alleges “Defendant’s use of the power and machinery of government to punish his media critics creates an atmosphere in which journalists must work under the threat of government retaliation. This environment, underscored by Defendant Trump’s campaign of intimidation against critical reporting, casts a chill on speech that — even if braved and overcome by diligent and courageous reporters — constitutes an ongoing First Amendment violation.”

PEN CEO Suzanne Nossel says there are multiple ways in which Trump’s actions may harm free speech, but in particular, “writers shouldn’t have to operate in an environment where the fear of retaliation is a real one.” Schulz, counsel on this case, says that PEN, on behalf of its members, has standing under several theories — including their right to receive information unencumbered by threats from the government and their right to be free of any “chilling effect of speech.”

While the Twitter case holding Trump could not block critics was based on different legal theories, Schulz says the case affirmed the basic premise that “the president cannot take actions that violate the First Amendment of others and that federal court is the proper forum [to address First Amendment injuries].”

Legal issues concerning standing and proof of actual harm to PEN members will be litigated. PEN’s lawsuit should, at the very least, highlight just how unique Trump’s abuses of executive powers have been. “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 [the] press and the First Amendment. This lawsuit addresses an urgent threat to our Constitution,” said Berkeley Law School Dean Erwin Chemerinsky in a written statement.

Coming while the fate of Post columnist Jamal Khashoggi has gripped the country, the lawsuit could not be a more timely or important defense of basic free speech principles.

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