The First Amendment of the Constitution of the United States states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
In the course of the day-to-day grind of covering the American presidency, journalists always have understood the difficulties and obstacles of seeking to gather the facts and to write with candor and objectivity about the policies and practices of our presidents. Since the election of Donald J. Trump, however, the relationship between reporters and the White House has become more deeply strained, more overtly combative, and more threatening to the job security and personal safety of journalists and writers than at any time in the modern presidency.
Just a few days ago, PEN America, an organization that was founded in 1992 and represents more than 7,200 writing professionals, took the most serious step yet in sending an unequivocal message to the Trump administration that they will take the fight in defense of freedom of the press to the courts. On October 16, 2018, the organization, in cooperation with Protect Democracy and the Yale Law School Media Freedom and Information Access Clinic, sent a clear message to the man in the Oval Office by filing a lawsuit in the United States District Court – Southern District of New York that names as defendant Donald J. Trump in his official capacity as President of the United States. In an open public letter, PEN explained the broader context of their concerns: “As an organization of writers, we at PEN America are deeply concerned to see the antagonism toward the press that we’ve long associated with authoritarian rulers around the world manifest here at home.”
The lawsuit itself states:
This complaint arises out of official acts by the President of the United States, Donald J. Trump, intended to stifle exercise of the constitutional protections of free speech and a free press. Through retaliatory directives to officials in his Administration and credible public threats to use his government powers against news organizations and journalists who have reported on his statements, actions, and policies in ways he does not welcome, the President has violated the First Amendment and his oath to uphold the Constitution. President Trump has First Amendment rights and is free to criticize the press vehemently, but he is not free to use the power and authority of the United States government to punish and stifle it.”
If successful in being heard in federal court, this suit, which seeks to defend the protections of our democratic institutions and freedom of expression as originally framed in the Constitution, may in time wend its way to the newly constituted conservative majority on the Supreme Court. What will happen there could be a harbinger either of a further diminishment of the freedoms and rights of our democracy or a resounding rejection of the authoritarian and undemocratic impulses of a thoroughly amoral president and his enablers in the Republican Party.
Here is the full text of the letter PEN America published on October 16, 2018.
Today PEN America, represented by the nonpartisan nonprofit Protect Democracy and the Yale Law School Media Freedom and Information Access Clinic, filed a lawsuit in federal court against the president of the United States, Donald J. Trump. The suit seeks to stop President Trump from using the machinery of government to retaliate or threaten reprisals against journalists and media outlets for coverage he dislikes.
President Trump’s tirades against the press are not new. His cries of “fake news” are an almost daily occurrence. The White House has called for individual journalists to be fired, and the president has referred to the media as “the enemy of the American people.” This has created an environment of hostility toward the media wherein journalists have been subject to death threats, needed bodyguards to cover political rallies, and have faced attacks in their newsrooms. The president has also threatened book publishers and authors who have published critical volumes. While many media outlets are unrelenting in their robust coverage, individual writers may think twice before publishing pieces or commentary that could put them in the White House’s crosshairs. As you know, over the last 18 months PEN America has been doing research, reporting, advocacy, outreach events, and more to spotlight and call out the president’s assaults on writers and journalists.
Yet most of the president’s verbal attacks on the press are speech that is protected under the First Amendment. Our country’s broad protections for free speech allow the president to denigrate the press and even go after individual journalists by name. However, when President Trump crosses the line and threatens to use his authority to punish the media, or actually does so, it is vital for the courts to step in and affirm that such threats and reprisals are unconstitutional. [Editor’s emphasis.] We have worked closely with leading First Amendment scholars and practitioners in private practice and academia in order to hone a request to the court to do just that.
As an organization of writers, we at PEN America are deeply concerned to see the antagonism toward the press that we’ve long associated with authoritarian rulers around the world manifest here at home. We have forcefully raised concerns about free expression infringements during the Obama, Bush, and other prior administrations including, in some instances, by filing suit. Given our mission to defend free expression and support those who pay a price for its exercise, we are determined to rise in defense of the press freedom protections that are so fundamental to our society and democracy. With media organizations focused on their essential role of providing probing, objective coverage, PEN America is uniquely positioned in standing up to these encroachments on the work of those who cover and comment on the work of our government.