On October 16, 2018, PEN America, Inc. brought this lawsuit against President Donald Trump in the U.S. District Court for the Southern District of New York. The plaintiff, an organization representing writers and literary professionals, sued under 28 U.S.C. § 2201(a) alleging that the President used his power against media and press to violate the First Amendment freedom of speech and the press. PEN America was represented by the Media Freedom and Information Access Clinic at Yale Law School and Protect Democracy. The case was assigned to Judge Lorna G. Schofield.

The complaint alleged that President Trump used, or threatened to use, the regulatory and enforcement powers of government to punish the speech of journalists in at least four ways: initiating a government review to raise postal rates to punish the owner of the Washington Post; directing DOJ enforcement actions against media companies, including CNN’s parent company; interfering with press access to the White House; and threatening to revoke broadcast licenses. Further, it alleged that President Trump expressed his animus toward media entities for their coverage of him and then threatened government retaliation. PEN America sought declaratory and injunctive relief.

In its amended complaint of February 6, 2019, PEN America included allegations related to the President’s threatened and actual revocations of security clearances of media commentators and White House press credentials, including those of PEN America member and CNN reporter Jim Acosta.

On April 10, 2019, President Trump sought to dismiss the complaint, claiming that PEN America lacked standing to bring claims on behalf of its members and on its own behalf, and that it failed to state a plausible claim for relief. He also claimed that prospective relief could not be implemented, as “the Supreme Court has repeatedly held that such injunctive relief [i.e. a district court injunction against the President of the United States] would be 'extraordinary' and beyond the power of the federal courts.”

On March 24, 2020, the court granted in part the motion to dismiss for lack of subject matter jurisdiction, and denied the motion to dismiss for failure to state a claim. On the remaining claims, the court granted declaratory relief but found injunctive relief improper. 2020 WL 1434573.

As of June 29, 2020, discovery has been stayed until at least July 6.

Abigail DeHart - 02/12/2019
Bogyung Lim - 06/09/2020


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