The legal route to challenging a US president who retaliates against journalists is now a little smoother after a group of First Amendment advocates settled a lawsuit with the US government.

Last month, PEN America reached a settlement with the new administration in a lawsuit it filed against former President Donald Trump.

The resolution upheld a 2020 lower court ruling affirming the right to sue a president for allegedly using the powers of his office to retaliate against adverse reporting.

Although they may not have had their day in court, those involved in the lawsuit believe the settlement is a positive outcome with long-lasting impact.

“Of course, we would have liked to have been able to get a decision on the merits of this case,” said Kristy Parker, attorney for Protect Democracy and lead trial counsel. “But we are pleased the court found that revoking press credentials and security clearances to retaliate for media coverage violates the First Amendment” to the US Constitution.

David A. Schulz of the Yale Law School Media Freedom of Information and Access Clinic said “the settlement by itself doesn’t do much,” but its value lies in its validation of the 2020 ruling.

“It’s compelling and it will stay on the books,” said Schulz, who was also on the legal team.

Legal battle

The settlement was the culmination of more than two years of litigation.

In 2018, PEN America, represented by the nonpartisan nonprofit Protect Democracy, the Yale Freedom of Information and Media Access Clinic, and the law firm Davis Wright Tremaine, filed a lawsuit in justice in the United States District Court for the Southern District of New York.

The lawsuit argued that Trump retaliated against critical reporting by journalists in violation of the First Amendment, which protects freedom of speech and of the press.

“Although the President is free to criticize the press, he may not use the power and authority of the United States government to punish and stifle it,” reads the complaint.

The lawsuit included the results of a PEN America survey of its members, more than half of whom said they believed “public criticism of the [Trump] the administration could endanger them.

Among its members was CNN correspondent Jim Acosta, whose White House press credentials were temporarily revoked in November 2018 following a heated press conference.

Schulz said the investigation and other findings were proof that Trump “was threatening in a spine-chilling way.” His actions collectively amounted to censorship, Schulz told VOA.

In addition to noting the suspension of press credentials, the lawsuit alleged that Trump or his officials had:

— Revoked or threatened to revoke the security clearances of former government officials who engaged in critical public comments.

– Issued an executive order to raise postage rates to punish Jeff Bezos, CEO of Amazon and owner of The Washington Post.

— Led Justice Department actions against media conglomerate Time Warner due to “antagonism” against its CNN affiliate.

– And threatened to revoke broadcast licenses in retaliation for “coverage the president doesn’t like.”

The Justice Department, which represented Trump, moved to dismiss the lawsuit, arguing that PEN America could not sue because it was not an aggrieved party and had failed to prove that Trump was obstructing the freedom of press.

“His allegations of chilled speech and receipt of information are too generalized to warrant relief: Plaintiff has not identified any speakers – whether Plaintiff’s member or not – whose speech was actually chilled,” the petition reads. from the DOJ filed in April 2019.

He also argued that the court lacked the power to review the official and discretionary actions of a sitting president.

The Department of Justice declined to comment directly for this article.

The lawsuit was not dismissed but it was cut short.

In a March 2020 decision, the district court found that the plaintiff lacked standing to pursue several of its claims, but allowed PEN America, on behalf of its members, to seek relief for First Amendment violations. in connection with revoking, or threatening to revoke, press credentials and security clearances.

Trump’s term expired before any further litigation could take place, and the lawsuit was resolved with the incoming administration of President Joe Biden through a settlement agreement.

The agreement stated that the settlement was not an admission of guilt, but that it preserved the 2020 ruling that favored PEN America.

International impact

Defenders of the case see the lawsuit as a tool to be used against abuses of power in the United States and abroad.

Going forward, explained Nora Benavidez, director of free expression US programs for PEN America, it will be easier to bring an action since the court found that PEN America had made a viable claim that the retaliatory acts of Sitting President Violates the First Amendment.

“What I’m proud of is that the case broke new ground,” Benavidez said. “I think the victory here is in the long run, and legally we have set a precedent in a way that helps build a free press for years to come.”

The case also has the potential to resonate outside of the United States.

“The world looks to the United States when it comes to media freedom,” said Irene Khan, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

“What happened under the Trump administration sent the wrong signal to other countries,” she said. “It will send a positive signal for change.”

Protect Democracy’s Parker hopes others will see an example of how to push back against authoritarian movements. “They will see that groups like PEN America have stood up and used the courts to push back.”

However, not everyone in the media community saw the lawsuit as an appropriate means of mitigating conflicts between the media and the White House.

“The relationship between the president and the press has a legal basis in the Constitution and to the extent possible both parties should try to uphold it,” Lisa Nicole Matthews, president of the National Press Club, said by email.

“The law shouldn’t be used to resolve disputes like who gets accreditation to the White House or whether the president is trying to disadvantage one network over another,” said Matthews, who, speaking on behalf of the club , suggested that there are solutions to these problems. .

“The press and the president should be able to discuss and resolve their dispute,” she said, “and I admit that was quite a challenge with the last administration. But legal remedies are not a solution for the press itself.