A Yale Law School Clinic filed a lawsuit against President Donald Trump last Tuesday on behalf of PEN American Center, alleging that Trump has violated the Constitution based on his treatment of the media.
A nonprofit organization headquartered in New York City, PEN America seeks “to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible,” according to its website. The Law School’s Media Freedom and Information Access Clinic filed the lawsuit together with the nonprofit Protect Democracy — a group of “experienced constitutional litigators” who aim to hold the executive branch accountable by litigating against unlawful actions, according to the group’s website. The lawsuit alleges that Trump has violated the First Amendment and his oath to uphold the Constitution by threatening to use his presidential powers to silence the press.
The filing states that while Trump is free to exercise his free speech rights in his general comments about the media, he is not free to “punish and stifle” the press using government authority. The case asserts that Trump has “intentionally hung a sword of Damocles over the heads of countless writers, journalists and media entities,” by directing threats and retaliating against specific news outlets that he believes to be hostile toward him.
“In the last two years, I think we’ve all seen the president direct a lot of harsh criticism and comments toward the press and toward journalists, and we’re certainly not saying that he can’t do that,” said Catherine Martinez LAW ’19, a student in the clinic who is working on the case. “The President has First Amendment rights and can call people ‘fake news’ and tweet what he wants. It becomes an issue when he uses action to retaliate against journalists or retaliate against news organizations such that it either prevents them from speaking or chills them from speaking and publishing writing or whatever the case may be.”
The lawsuit is a complaint for “declaratory and injunctive relief,” meaning its goal is for the court to acknowledge and declare that the President has violated the First Amendment and to prevent him from instructing any government employee to “use government power to target or retaliate against the press” in the future, Martinez said.
The complaint cites multiple instances of Trump’s hostility toward the press. Some examples include Trump’s threat to revoke NBC’s broadcast licenses for airing content he dislikes, as well the barring of CNN reporter Kaitlan Collins from a press conference for asking questions the White House deemed “inappropriate.”
The government has 60 days to respond to the complaint.
The White House’s press office did not respond to multiple requests for comment.
“This suit comes at a worldwide moment of reckoning for the relationship between governments and the journalists who criticize them … 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,” a press release from PEN America states. “That’s what this suit aims to do.”
According to Martinez, Trump’s threats against the press have created a “chilling effect” — a term used in First Amendment jurisprudence, which she and clinic head David Schulz compared to creating a hostile work environment. A chilling effect can occur when members of the press see the president directing threats toward one reporter and begin to fear that similar actions will be taken against them. This effect gives an organization like PEN America, which is partially comprised of professional journalists, the grounds to sue Trump for free speech violations, Martinez said.
“For a reporter to have to work in an environment where they have to be afraid that they might be singled out and punished by the president — there is a way in which the law can find a redress for that harm, the same way that it protects people at work from other types of adverse acting,” Schulz said.
Martinez added that silencing of journalists who operate outside of PEN America prevents the organization’s members from having a “free line of communication” with other journalists, violating their “right to listen,” which has previously been recognized by the Supreme Court as a component of the First Amendment.
George Wang LAW ’20, another student in the clinic working on the case, underscored the importance of the case for protecting the First Amendment overall.
“One of the core purposes of the First Amendment is to protect the press from government suppression, to protect speech from government suppression,” Wang said. “I think that’s what this case is really about — the president’s attempts to essentially suppress free speech and freedom of press.”
PEN America was founded in 1922.
Asha Prihar | firstname.lastname@example.org .