960 F.3d 656
D.C. Cir.2020Background:
- The White House issues "hard passes" to journalists for on-demand access; historically no written conduct rules governed non-press-room areas and revocations for misconduct were rare.
- After the 2018 Acosta incident, the White House circulated a letter setting rules for press conferences but declined to adopt explicit rules or sanctions for conduct in open (non-press-room) areas, stating it relied on "professional journalistic norms."
- At the July 2019 Social Media Summit, reporter Brian Karem engaged in exchanges with attendee Sebastian Gorka (remarks in the Rose Garden and a brief Palm Room confrontation) captured on video.
- Press Secretary Stephanie Grisham suspended Karem’s hard pass for 30 days, citing violations of professional norms and a need to deter disruptive conduct; Karem sued claiming First and Fifth Amendment violations.
- The district court preliminarily enjoined the suspension, finding Karem likely to succeed on his due process (fair-notice) claim; the D.C. Circuit affirmed the injunction (narrowed to run only against the Press Secretary), holding Karem lacked fair notice that a month-long suspension could be imposed for his conduct.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether suspension violated Fifth Amendment fair-notice due process (magnitude of sanction) | Karem: No prior written standard or practice put him on notice a 30-day suspension could follow non-press-room conduct | White House: Acosta letter and general professional norms provided notice; sanction was within authority | Court: Held Karem likely to succeed; Acosta letter did not give fair notice of magnitude/sanction for non-press-conference conduct; injunction warranted |
| Whether suspension was unlawful under the First Amendment as content/viewpoint-based punishment | Karem: Suspension was veiled viewpoint/content-based punishment | White House: Action enforced decorum neutrally, not based on viewpoint | Court: Did not resolve First Amendment claim; decision rested on due process fair-notice grounds |
| Whether preliminary-injunction factors support relief (irreparable harm, balance, public interest) | Karem: Loss of access is irreparable First/ Fifth Amendment harm; public interest favors enforcement of due process | White House: Harms were only procedural and temporary; government interest in controlling access weighs against injunction | Court: Found irreparable constitutional harm and balance/public interest favor Karem; injunction affirmed |
| Proper scope of injunction (can it run against the President) | Karem: Injunction listed both Press Secretary and President | White House: President not a proper defendant for injunctive relief | Court: Limited injunction to run only against the Press Secretary |
Key Cases Cited
- Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) (White House hard-pass holders have First Amendment interest and due-process protections; formal standards required for exclusions)
- FCC v. Fox Television Stations, Inc., 567 U.S. 239 (U.S. 2012) (administrative sanctions require fair notice; novel standards announced retroactively violate due process)
- BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (U.S. 1996) (due process requires fair notice of both prohibited conduct and severity of potential penalties)
- Village of Hoffman Estates v. Flipside, 455 U.S. 489 (U.S. 1982) (heightened vagueness/fair-notice scrutiny applies where regulations threaten to chill constitutional rights)
- Brandon v. District of Columbia Board of Parole, 823 F.2d 644 (D.C. Cir. 1987) (deprivation of protected liberty interests must follow constitutionally adequate procedures)
- Qwest Services Corp. v. FCC, 509 F.3d 531 (D.C. Cir. 2007) (courts may clarify law but announcing novel standards cannot be applied retroactively to punish past conduct)
- Rogers v. Tennessee, 532 U.S. 451 (U.S. 2001) (novel judicial or administrative standards generally cannot be applied retroactively to validate past punishment)
- Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) (prospective violation of constitutional rights constitutes irreparable injury warranting equitable relief)
- Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998) (prospective First Amendment violations establish irreparable harm)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (context matters when evaluating professionalism and reasonableness of conduct)