PEN America Sues Donald Trump For 1st Amendment Violations In Attacking The Press

from the shall-not-be-infringed dept

PEN America, the well known human rights group that focuses on protecting freedom of expression for writers has now sued President Trump for a bunch of different attacks on the First Amendment -- using Trump's repeated tweets and threats as the key evidence in making these claims. The complaint lists out a bunch of different statements and actions by the President that PEN America argues all violate the 1st Amendment. There are four separate actions by the President described in the lawsuit, and let's go through them one by one.

First up is the President issuing an executive order about raising postal rates in retaliation against Jeff Bezos and Amazon, because Bezos (not Amazon) owns the Washington Post, and the Washington Post has been doing pretty strong reporting in revealing all sorts of Presidential misdeeds.

Defendant Trump has repeatedly threatened to use the U.S. Postal Service (“Postal Service”) and its rate structure to retaliate against Jeff Bezos, the owner of the Washington Post (also referred to as “the Post”), whose coverage he dislikes. On April 12, 2018, he followed through on his threats by signing an Executive Order directing the Postal Service to review its rates. This Order, on information and belief, was aimed at Bezos’s company, Amazon, and was motivated by Defendant Trump’s displeasure at the reporting of Bezos’s other company, the Washington Post. From the beginning of his campaign for President, Defendant Trump has repeatedly attacked the Post for its coverage of him, calling it biased, fictitious, and “a disgrace to journalism.” In a 2016 interview, he called the Post “a political instrument” that was writing “bad” and “wrong” stories “with no proper information,” and accused its reporters of writing a “false” book about him. He has routinely called the Washington Post “fake news” and personally attacked its writers. During his presidency, when the Washington Post published unflattering stories about the inner workings of his Administration, Defendant Trump frequently responded with pointed denunciations of the accuracy of the Post’s work. On April 8, 2018, for example, after the Post ran a story about John Kelly’s frustrations as Chief of Staff, Defendant Trump tweeted: “The Washington Post is far more fiction than fact. Story after story is made up garbage - more like a poorly written novel than good reporting. Always quoting sources (not names), many of which do not exist. Story on John Kelly isn’t true, just another hit job!” Defendant Trump has turned his ire over the Washington Post’s coverage into a vendetta against its owner Bezos, targeting Bezos’s main asset, Amazon, by issuing a series of threats to take governmental action that would harm Bezos and Amazon, and which were eventually acted upon. During his campaign, Defendant Trump repeatedly threatened future action against Amazon, regularly tied to objections over the Post’s coverage. On information and belief, he did this to signal to Bezos and Amazon shareholders that he could – and would – use his official powers to adversely impact Amazon’s tax status and subject it to antitrust enforcement. As candidate Trump put it at a rally on February 26, 2016, while referring to Bezos and Amazon: “If I become president, oh do they have problems. They’re going to have such problems.”

There's a lot more along those lines... and then it talks about Trump's threats concerning the postal rates:

On December 29, 2017, following a Washington Post story on the Administration’s internal deliberations on how to handle “worries of a tough year ahead,” and a satirical end-of-year piece entitled “Was 2017 the end of something or just the beginning,” Defendant Trump tweeted that the Postal Service should be charging more to deliver Amazon’s packages: “Why is the United States Post Office [sic], which is losing many billions of dollars a year, while charging Amazon and others so little to deliver their packages, making Amazon richer and the Post Office dumber and poorer? Should be charging MUCH MORE!” On information and belief, Defendant Trump has since repeatedly been told by his staff that his assertions about Amazon’s harmful impact on the Postal Service are incorrect, but he continues to repeat them. Defendant Trump recently renewed and escalated his threats of action against Amazon following unflattering reporting in the Washington Post detailing the damage done to Trump’s family businesses by allegations involving adult film actress Stormy Daniels and Robert Mueller’s investigation into the 2016 election. Defendant Trump repeated his false claims about costs to the Postal Service and his threats to raise Amazon’s shipping rates. Once again, he left no doubt that his motivation was animus against the Post, again calling it a “lobbyist” and “weapon” for Bezos. In a series of tweets from March 29, 2018 to April 3, 2018, Defendant Trump made repeated false statements about Amazon and issued repeated threats to raise its postal shipping rates. Over the course of these threats from President Trump, Amazon sustained a $60 billion dip in market value. On information and belief, Defendant Trump’s attacks on Amazon were motivated by animus toward Bezos and the Washington Post on account of its coverage of him and his Administration. For example, in an April 13, 2018 article by Maya Kosoff, Vanity Fair quoted White House sources as saying that President Trump “has zero respect” for the Washington Post and wants to “[f--k] with” Bezos as a result. On April 12, 2018, Defendant Trump followed through on his retaliatory threats, issuing an Executive Order directing a review of the Postal Service’s “unsustainable financial path.” The order included several provisions directed at Amazon, including an order to review the “expansion and pricing of the package delivery market.” On information and belief, President Trump had by this time repeatedly and personally directed the Postmaster General to raise Amazon’s rates. Even during the pendency of the review, Defendant Trump continued to threaten further action against Bezos and Amazon and linked his motivation clearly to the Washington Post’s coverage. On July 23, 2018, immediately following reports in the Post that President Trump was unhappy with the progress of talks with North Korea, the President tweeted that “[t]he Amazon Washington Post has gone crazy against me ever since they lost the Internet Tax Case in the U.S. Supreme Court,” i.e. South Dakota v. Wayfair, Inc. He then renewed his threats to take antitrust action against Amazon and to raise its postal delivery rates. President Trump tweeted “Next up is the U.S. Post Office [sic] which they use, at a fraction of real cost, as their ‘delivery boy’ for a BIG percentage of their packages. . . In my opinion the Washington Post is nothing more than an expensive (the paper loses a fortune) lobbyist for Amazon. Is it used as protection against antitrust claims which many feel should be brought?” On October 11, 2018, the Postal Service announced proposed rate hikes for its services, to include rate increases of up to 12 percent for the Parcel Select service used by Amazon. On information and belief, this action by the Postal Service would not have been taken but for the President’s clearly expressed desire to punish Amazon for the reporting of the Washington Post.

This really seems like a case where Trump's own words and tweets could potentially sink him. Normally, it would be pretty difficult to directly link something like raising postal rates on Amazon to direct retaliation for coverage in the Washington Post, but as the complaint lays out, because Trump himself has directly (incorrectly) argued that Amazon and the Washington Post are the same, and that the effort to raise rates was to punish Bezos and the Post, it seems like there's a stronger argument here.

The larger issue may be standing. There appear to be strong arguments here for the Washington Post and possibly Bezos himself and/or Amazon to have better standing, but PEN America is a tougher one. The organization tries to get around this by arguing that its members write for the Washington Post and that this has the potential to harm them. That seems like the key point that will be challenged in court. If they can get over the standing question, then it seems like they have a strong argument, mainly because Trump can't keep his mouth shut.

The second issue seems like more of a long shot to me. It's about the DOJ's effort to block the AT&T takeover of Time Warner (that effort has mostly failed). PEN America's suit argues that the DOJ's antitrust enforcement here was really about Trump's well-known animus towards CNN. And he did sometimes mention the merger, as detailed in the complaint:

Defendant Trump has done far more than exercise the right to make known his dislike of CNN’s reporting. At a rally during the 2016 campaign, Defendant Trump threatened to block a proposed merger between Time Warner, CNN’s parent company, and AT&T, once he gained control of the DOJ, and made clear his retaliatory motive for doing so. On October 22, 2016 in Gettysburg, Pennsylvania, he denounced the AT&T–Time Warner merger, telling his audience that CNN was part of the media “power structure” trying to suppress his votes. “AT&T is buying Time Warner and thus CNN,” Defendant Trump said, declaring it “a deal we will not approve in my administration.” Once in office, Defendant Trump followed through on this threat. On information and belief, during the pendency of the AT&T–Time Warner merger review process, advisers to President Trump discussed using the merger approval application as “a potential point of leverage over [CNN].” On information and belief, DOJ demanded the sale of CNN as a condition of its approval of the merger, leading a source close to the merger process to opine that “[t]his has become political . . . It’s all about CNN.”

This claim seems much weaker than the first. To be clear, it has the same standing issues as the first, but even if we get past those, vague threats to use antitrust action here doesn't mean that's actually what happened. Obviously, the discovery process here would be a big deal, and perhaps they can turn up a smoking gun. But there were plenty of legitimate antitrust reasons to block this merger, so the direct causal line here does seem tough to prove.

Separate from that, however, are threats to use DOJ enforcement powers against Google and other social media companies over the (made up) claim of political bias in search and recommendations. Here, as we've argued, the DOJ appears to be directly positioning the First Amendment-protected moderation and ranking decisions of internet companies as some sort of anti-trust violation. That's clearly in violation of the First Amendment, and the PEN America complaint highlights this as well:

Defendant Trump’s threats to use the DOJ to influence the flow of information to the public is not limited to CNN. On August 28, 2018, he complained, via Twitter, that: Google search results for ‘Trump News’ shows only the viewing/reporting of Fake News Media. In other words, they have it RIGGED, for me & others, so that almost all stories & news is BAD. Fake CNN is prominent. Republican/Conservative & Fair Media is shut out. Illegal? 96% of . . . results on ‘Trump News’ are from National Left-Wing Media, very dangerous. Google & others are suppressing voices of Conservatives and hiding information and news that is good. They are controlling what we can & cannot see. This is a very serious situation-will be addressed! Hours later, White House economic advisor Larry Kudlow, standing outside the White House, threatened that the Trump Administration is “taking a look” at imposing regulations on Google. On September 5, 2018, Attorney General Jeff Sessions announced his intention to convene a meeting of Republican state attorneys general to discuss a possible federal investigation of whether Google, Facebook, and other social media companies are violating antitrust and free speech laws. On September 22, 2018, the White House leaked a draft Executive Order that would instruct federal law enforcement and antitrust agencies to open investigations into social media companies. This leak was intended to, and did, have a negative market impact on these companies. The intent of leaking this information was to show these companies and other speakers the President dislikes that his White House has the power to significantly injure them with a simple leak if it dislikes their content. The intent of leaking this information was also to incentivize investors to pressure these companies to modify their content to be more to the liking of the President in order to avoid retaliatory actions that could impact the investors’ bottom line.

Once again, the standing issue is a big one here that may be difficult for PEN America to get past. But this kind of activity has clear First Amendment problems. We detailed out a bunch of cases that highlighted how the courts have ruled against politicians and government officials who use the power of their office to intimidate companies into publishing (or not publishing) protected speech.

Next up is Trump's semi-regular threats to "pull" the licenses from major TV networks over negative coverage of his Presidency. He does this every so often even though there aren't any such licenses to pull. Even networks like NBC, ABC and CBS have local licenses for their affiliates, but not a general license for their parent companies -- and Trump can't "pull" those non-existent licenses anyway.

Minutes later, Defendant Trump followed that tweet with another threatening NBC’s broadcast license. “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” Later the same day, Defendant Trump broadened his threat to more outlets: “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”

Beyond the standing question (again), the issue here will be the lack of action. It's just Trump venting stupidly on Twitter, and again such licenses don't even exist. Obviously, PEN's argument here is that the local affiliate licenses do exist, and these threats to pull general licenses may be interpreted by them as a threat to pull the local licenses -- and that could impact and influence coverage at the local level. But... that seems like much more of a stretch than the other claims.

Next up are attempts to limit the access of White House reporters to information in the White House.

Defendant Trump’s behavior in denying journalist critics access to information from the White House and about his Administration is a pattern dating back to his campaign. Prior to the election, on August 25, 2015, Defendant Trump had Jorge Ramos, Univision’s lead anchor, removed from a press conference after Ramos tried to ask Defendant Trump a question about immigration policy. While on the campaign trail, Defendant Trump barred reporters from several news organizations, including the Washington Post, from obtaining press credentials at his rallies, news conferences, and other events. As President, Defendant Trump has continued to threaten journalists whose coverage or questioning he found unfavorable to him or his Administration with revoking their access to official Administration and White House events. On information and belief, Defendant Trump has repeatedly directed White House staff to ban reporters critical of his Administration from covering official events or to take away their press credentials. This included reporters from the Washington Post, CNN, and NBC News, and Defendant has specifically told his staff to consider blacklisting Jim Acosta of CNN and April Ryan of the American Urban Radio Networks in retaliation for their coverage, of which he disapproves.

Again, there's a standing issue here, and I'm a bit surprised PEN America didn't find a journalist to be a co-plaintiff at least on this claim, as that would make it stronger. Beyond that, there are some questions about what standards the White House uses in favoring some journalists over others, that could potentially raise some First Amendment issues. If the decisions are specifically based on their coverage and if it's positive or negative, then there's a stronger case there. The White House, of course, will likely suggest there are other reasons for limiting access to certain journalists.

In the end, this should be an interesting First Amendment case to follow, though I do think the standing question will be a tough hurdle for PEN America, without specifically naming individuals or organizations directly harmed by these actions (some of which do appear to raise big First Amendment questions).

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Filed Under: 1st amendment, doj, donald trump, first amendment, free speech, postage rates, standing

Companies: pen america