Case Information
*1 LORNA G. SCHOFIELD, District Judge:
Plaintiff Pen American Center, Inc. (“PEN America”) seeks a declaratory judgment and injunctive relief against Defendant, President Donald J. Trump, for his alleged suppression of media free speech. Defendant moves to dismiss the Amended Complaint (the “Complaint”) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Plaintiff lacks standing, the Complaint fails to state a claim and the Court lacks the authority to enjoin Defendant. For the reasons below, the motion is granted in part and denied in part. Specifically, claims for declaratory relief, based on Defendant’s practices of (i) revoking or threatening to revoke White House press credentials and (ii) revoking or threatening to revoke national security clearances, may proceed. Injunctive relief is improper. For all other allegations, Plaintiff lacks standing.
I. BACKGROUND
The following facts are drawn from the Complaint and accepted as true for purposes of
this motion only.
See Hu v. City of New Yor
k,
PEN America is a nonprofit association of writers, literary and media professionals, which defends the free speech rights of journalists in the United States and abroad. Among other things, it “monitors the government’s interactions with writers and journalists and produces informational content related to its advocacy work.” Its advocacy and research depend “heavily on the quality reporting” in the press. PEN America members include journalists for the Washington Post , Cable News Network (“CNN”) and National Broadcasting Company (“NBC”), who report on Defendant’s Administration -- for example, Jim Acosta of CNN.
The Complaint alleges that, since assuming office, Defendant has engaged in a “campaign of intimidation against critical reporting.” Defendant has used “the power and authority of the United States government” “to take retaliatory actions and [make] credible public threats” against reporters who are critical of his Administration. Defendant’s motivation is to punish and chill critical press, and he has succeeded in doing so. According to a survey of PEN America members, thirty-one percent have avoided publishing on certain topics due to concern that Defendant will retaliate against them. One percent have been fired or laid off and two percent demoted, replaced or denied an assignment as a result of Defendant’s actions, and four percent have been asked to revise a piece before publication out of concern about Defendant’s reaction. Fifty-two percent believe public criticism of his Administration would put them at risk.
The Complaint alleges five sets of retaliatory acts and threats by Defendant against critical press: (i) his revocation or threats to revoke the White House press credentials of the White House press corps, or otherwise barring their access to press conferences, (ii) revocation or threats to revoke government officials’ security clearances, due to the officials’ critical commentary about Defendant in the press, (iii) threats to revoke television stations’ broadcast licenses, (iv) issuance of an executive order directing the United States Postal Service (“USPS”) to consider raising postal rates, which would impact Amazon.com’s (“Amazon’s”) shipping costs, and in turn, Jeff Bezos, the main shareholder of both Amazon and the Washington Post , and (v) a directive to the Department of Justice (“DOJ”) to challenge the Time Warner-AT&T merger, out of hostility toward Time Warner’s subsidiary CNN, and other regulatory and investigatory threats aimed at internet companies. These actions, according to the Complaint, have chilled the speech of reporters and contributors to the press, who fear that Defendant will retaliate against them for any critical positions they take on Defendant.
A. Barring Access to the White House Press Corps Defendant has repeatedly barred the access of the White House press corps to press conferences and the White House entirely, after members speak or report critically about Defendant. The press corps are reporters stationed at the White House who cover the President and his Administration. To report from the White House, Air Force One and other locations where the President and his staff meet with the press, press corps members must have White House press credentials.
On February 24, 2017, the White House Press Secretary (“Press Secretary”) held an off- camera session in his office, allowing only a select group of reporters to attend, and denying access to CNN, The New York Times , Politico , The Guardian and the British Broadcasting Corporation (“BBC”). On July 25, 2018, the Press Secretary barred a CNN reporter from a White House press event, after Defendant deemed an earlier question the reporter had asked “inappropriate.” In November 2018, Defendant threatened to revoke the press credentials of reporters who failed to show him “respect.” On the social media platform Twitter, Defendant has posed rhetorically whether to “[t]ake away credentials” of “Network News” because its coverage of the Administration is “negative (Fake).”
Defendant has specifically targeted PEN America member and CNN White House press corps reporter, Jim Acosta. On December 12, 2017, the Press Secretary told Mr. Acosta that he would be banned from future White House press sessions if he posed questions during a particular session. Later, at a different press session, Mr. Acosta asked the President critical questions about the Administration’s U.S.-Mexico border activity, leading Defendant to call Mr. Acosta a “rude, terrible person” who “shouldn’t be working for CNN.” The Press Secretary subsequently stripped Mr. Acosta’s press credentials on November 7, 2018. The White House falsely claimed it did so because Mr. Acosta had breached decorum and placed his hands on a White House intern who had tried to take away a microphone. Six days later, on November 13, 2018, Mr. Acosta obtained a preliminary injunction against Defendant and White House staff, which temporarily restored his press credentials. On November 19, 2018, the parties the lawsuit, and Mr. Acosta has maintained his press credentials since.
On the day of the settlement, the Press Secretary e-mailed the entire White House press corps, outlining rules of conduct. If “unprofessional behavior occurs” or if “a court should decide that explicit rules are required to regulate [the] conduct” of the press corps in the White House or Air Force One, the White House would adopt further rules. The e-mail expressly stated the rules of conduct were a response to the “behavior Mr. Acosta displayed at the November 7, 2018 press conference” and the “position taken by CNN.”
B. Revocation of Security Clearances
Defendant has threatened to revoke or has revoked the security clearances of former government officials who comment critically about Defendant in the press. Security clearances are typically stripped only for cause by the federal agency that originally issued the clearance. Former officials maintain security clearances to continue advising successors and assisting the federal government as needed.
On July 23, 2018, the Press Secretary announced that Defendant was considering revoking the security clearances of six former high-level national security officials, citing their critical commentary about Defendant in the press. Shortly before the announcement, four of the officials had spoken to the press, in their capacity as regular media contributors. On August 15, 2018, Defendant revoked the clearance of one official, former Central Intelligence Agency Director and MSNBC contributor John Brennan.
C. Threats to Revoke Broadcast Licenses
On Twitter, Defendant has questioned whether to challenge or revoke the broadcast licenses of networks whose reporting he dislikes. On October 11, 2017, Defendant tweeted: “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 that day, he tweeted that the networks’ “licenses must be challenged and, if appropriate, revoked.” On December 16, 2018, Defendant suggested that NBC and other networks’ coverage “[s]hould be tested in courts,” because the networks “[o]nly defame & belittle! Collusion?”
D. Postal Rates Executive Order
Defendant allegedly retaliated against the Washington Post through the publication’s owner, Jeff Bezos, and Mr. Bezos’ e-commerce company, Amazon. On April 12, 2018, Defendant issued an executive order, directing the USPS to examine its “unsustainable financial path” and to consider raising the “pricing of the package delivery market.” The USPS’ proposals for new shipping rates, published in October and December 2018, risked increasing Amazon’s delivery costs significantly.
For over a year before the executive order, Defendant was hostile toward the Washington Post , Amazon and Mr. Bezos, all of which he associates. Defendant’s tweets use the moniker “Amazon Washington Post” or “#AmazonWashingtonPost.” After critical reporting by the Washington Post , Defendant called the newspaper a “lobbyist” and “weapon” for Mr. Bezos, and threatened to raise Amazon’s shipping rates. His tweets in March and April 2018 again threatened to raise postal rates. The Complaint alleges that, but for Defendant’s “expressed intent to punish” the Washington Post , he would not have issued the April 2018 USPS executive order.
E. DOJ Challenge to Time Warner-AT&T Merger Defendant regularly disparages CNN as “fake news” on social media and in public appearances. In retaliation for CNN’s critical coverage, Defendant allegedly directed the DOJ to block a proposed vertical merger between AT&T and Time Warner, the parent of CNN. Defendant and his advisers discussed in 2017 how a lawsuit could create leverage over CNN. In November 2017, the DOJ filed an antitrust lawsuit against the merger, even though the DOJ had not brought a challenge to vertical mergers in decades. The DOJ lost at trial in June 2018.
The Complaint alleges that the DOJ lawsuit is one instance in a pattern by Defendant of threatening companies he disfavors with federal regulation or investigation. In August 2018, Defendant directed a White House economic advisor to consider regulating Google, after Defendant tweeted that Google’s search engine disproportionately steered users to negative press about the Administration. Defendant also directed law enforcement, antitrust regulators and the Attorney General to look into investigating social media companies, allegedly “to influence the flow of information to the public” about Defendant and the Administration, on the companies’ platforms.
II. LEGAL STANDARDS
“A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction if the court lacks the statutory or constitutional power to adjudicate
it,” including when a “plaintiff lacks constitutional standing to bring the action.”
Cortlandt St.
Recovery Corp. v. Hellas Telecomms., S.A.R.L.
,
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v.
Iqbal
,
III. DISCUSSION
A. Standing
Plaintiff has constitutional standing to pursue First Amendment claims against Defendant’s practice of (i) selectively barring access to the White House press corps, including by revoking or threatening to revoke press credentials, due to hostility to the reporters’ speech (the “Press Corps Claim”), and (ii) revoking or threatening to revoke the security clearances of former government officials whose commentary he dislikes (the “Security Clearance Claim”). As explained below, Plaintiff does not have standing to challenge Defendant’s alleged threats to revoke broadcast licenses, the executive order on postal rates, the directive to challenge the AT&T-Time Warner merger or regulatory threats against internet companies.
“No principle is more fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court jurisdiction to actual cases or
controversies” under Article III.
Spokeo, Inc. v. Robins
,
As a preliminary matter, Plaintiff’s standing with respect to each set of retaliatory acts or
threats must be addressed separately. Plaintiff argues, to the contrary, that it is challenging
Defendant’s “ongoing informal policy of threatening and retaliating against the press through a
variety of regulatory tools.”
See
Opp’n Br., Dkt. No. 48, at 2. Therefore, the relevant question
for standing, according to Plaintiff, is whether this
overall policy
has injured Plaintiff, not
whether each set of challenged actions has. The challenged actions are merely illustrative of the
overall policy. This argument is unpersuasive. “[S]tanding is not dispensed with in gross. . . .
Nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of
that injury the necessary stake in litigating conduct of another kind, although similar, to which he
has not been subject.”
See Lewis v. Casey
,
1. Associational Standing
Plaintiff has associational standing with respect to the Press Corps Claim, but not the
other challenged conduct. To establish associational standing, a plaintiff must allege that: “(a)
[an organization’s] members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.”
Hunt v. Washington State Apple Advert. Comm’n
,
a) Press Corps Claim Plaintiff has satisfied the two disputed elements for associational standing: the Complaint pleads that at least one named member has individual standing and that no individual members are required to participate in the Press Corps Claim. Because the Complaint does not allege that the challenged conduct has affected all PEN America members-- in fact, it alleges the opposite -- Plaintiff is required to identify at least one affected member by name. [1]
Regarding the naming requirement, the Complaint has named Mr. Acosta, who satisfies
the three-pronged test for individual standing. Defendant’s retaliatory actions and threats have
injured Mr. Acosta in two ways: (i) Mr. Acosta’s own speech has been chilled, and (ii) Mr.
Acosta’s right to receive the speech of his press corps colleagues has been impeded, because
their speech has been chilled. These are classic First Amendment injuries.
See Laird v. Tatum
,
The Complaint alleges that Mr. Acosta and the press corps have suffered an “objective
harm [and] a threat of a specific future harm,”
Laird
,
The allegations also establish a causal connection between the injuries and the challenged conduct. It is plain that the injuries trace to Defendant’s actions. A favorable ruling furthermore will likely redress the practice. The Complaint explicitly pleads, quoting from the Press Secretary’s e-mail, that Defendant and his staff are ready to heed a court decision on proper rules of conduct for governing the White House press corps.
Second, individual PEN America members need not participate in the Press Corps Claim,
therefore satisfying the other disputed element of associational standing. Plaintiff seeks a
declaratory ruling, and if appropriate, an injunction, against Defendant’s practice of banning the
press corps for speech critical of Defendant and his Administration. The requested relief targets
the practice overall, rather than redresses the harm to particular PEN America members. No
individualized proof as to the fact and extent of injury is required. “[W]here the organization
seeks a purely legal ruling” or an injunction “without requesting that the federal court award
individualized relief to its member, the
Hunt
test may be satisfied.”
See Bano v. Union Carbide
Corp
.,
b) Remaining Claims Plaintiff does not have associational standing for the other allegations -- Defendant’s revocation of security clearances, threats to revoke broadcast licenses, the postal rates executive order or the challenge to the AT&T-Time Warner merger and regulatory threats to internet companies -- because the Complaint does not identify any PEN America member who has standing to bring these claims. The only member named period is Mr. Acosta. But Mr. Acosta does not have a sufficient “personal stake” in these allegations to confer standing. Summers, 555 U.S. at 493.
Mr. Acosta is many steps removed from each of the challenged actions, and any
purported injury to him is far too speculative.
See Clapper v. Amnesty Int’l USA
,
To the extent Plaintiff argues that Mr. Acosta has experienced a receipt-of-information
injury because these challenged actions have chilled media speech generally, the Complaint fails
to plead how this injury is particularized to Mr. Acosta. Even assuming the actions did chill
media speech, Mr. Acosta is similarly situated to all journalists and the public at large, in being
deprived of this speech.
See Warth
,
2. Direct Organizational Standing
Plaintiff has direct organizational standing to bring the Press Corps Claim and the
Security Clearance Claim, but not the remaining claims. An organization has “standing in its
own right to seek judicial relief from injury to itself,”
Warth
,
a) Receipt-of-Information Injury
An organization’s right to receive information is impaired when it is unable to hear from
a speaker who is willing to speak, but who has been obstructed by government action.
See
Virginia,
With respect to the Security Clearance Claim, Plaintiff has a receipt-of-information injury because Defendant’s actions plausibly chilled the speech of the six government officials named in the Complaint. After four of these officials spoke critically about Defendant in the media, the Press Secretary announced that Defendant was considering revoking the six officials’ security clearances, expressly citing their media commentary. Defendant ultimately revoked the security clearance of one official, an allegedly unprecedented action by a President. The officials are otherwise frequent and willing speakers in the media. The Complaint has plausibly alleged therefore that Defendant’s retaliation and threats of further retaliation against these officials have objectively chilled the volume or quality of their media speech. Plaintiff’s right to receive the speech has in turn been impaired. [3]
Plaintiff’s injury is particularized.
See Spokeo Inc.
,
Similarly, Plaintiff has organizational standing as to the Press Corps Claim. Defendant’s actions have plausibly chilled the White House press corps’ speech, the questions they ask Defendant and the reporting they consequently are able to publish. The chilling impedes Plaintiff’s right to receive information. Since PEN America monitors how government interacts with press, and its own members are in the White House press corps, Plaintiff has a particular interest in receiving and monitoring this speech. As discussed in Section III.A.1, the injury traces to Defendant’s actions and is redressable by a favorable court order.
Plaintiff has failed to assert a receipt-of-information injury as to the remaining claims. The chain of causation linking (1) the challenged actions, (2) the injury to media speech and (3) the injury to Plaintiff’s right to receive the speech is too speculative. See Clapper , 568 U.S. at 410. Regarding broadcast licenses, the Complaint fails to allege how Defendant’s three tweets, questioning whether he can revoke broadcast licenses of “the Networks,” has objectively chilled media speech. Likewise, Defendant’s directives regarding USPS postal rates, the AT&T- Time Warner antitrust lawsuit and the regulation of internet companies impact the press even more tenuously. That a proposal of higher postal rates may affect Amazon, which in turn may affect Mr. Bezos, which in turn may affect the Washington Post, and then finally the news Plaintiff receives is too hypothetical. Similarly, the Complaint does not allege how a highly technical antitrust trial affects the speech of one of the parties’ subsidiaries, CNN. Nor is it clear how Defendant’s frustration toward a search engine and social media platforms, on which users share news stories, would impact the content of the news stories or Plaintiff’s ability to seek out news stories itself. Although the Complaint presents survey results from Plaintiff’s members showing that Defendant has deterred some of the members’ reporting, the results are not specifically connected to the challenged actions here.
b) Diversion-of-Resources Injury
Plaintiff’s main theory of direct injury -- that it has been injured because Defendant has
“forced [Plaintiff] to divert significant resources previously dedicated to advocating for
expression overseas to responding to Defendant’s actions at home” -- is unpersuasive for all
remaining claims. An organization is injured when there is a “perceptible impairment of [the]
organization’s activities” due to the challenged conduct,
see Nnebe v. Daus
,
The Complaint alleges that Plaintiff has increased spending on domestic advocacy,
including by establishing a Washington, D.C. office, commissioning a study, publishing frequent
reports and organizing events to protest Defendant’s impact on free speech and press. But the
principle in
Havens Realty
and cases following is that an organization is injured if it has been
forced to spend money addressing roadblocks to its “core activities.”
See Centro
, 868 F.3d at
111. PEN America’s “primary mission” and “bedrock work” are to “defend the liberties that
make creative expression possible,” “
both
internationally and in the United States” (emphasis
added). Accordingly, a core activity of PEN America
is
to advocate for and monitor the free
speech rights of journalists in the United States, not just abroad. Its increased domestic
expenditures are not a diversion of money away from its core activities, but actually constitute
the core activities. Simply because Plaintiff may have adjusted the relative amounts of money it
spends on domestic and international core activities does not establish an injury.
See Make the
Rd. New York
,
B. Sufficiency of Claims
The Complaint plausibly states the Press Corps Claim and Security Clearance Claim. Plaintiff pursues each claim under two First Amendment theories: the bar against government threats that chill free speech and the bar against retaliatory government acts that punish speech. Both theories are viable.
Regarding unconstitutional threats, “[w]here the comments of a government official can
reasonably be interpreted as intimating that some form of punishment or adverse regulatory
action will follow the failure to accede to the official’s request, a valid claim can be stated.”
Hammerhead Enters., Inc. v. Brezenoff
,
Regarding the separate theory of First Amendment retaliation, a plaintiff must allege:
“(1) he has a right protected by the First Amendment; (2) the defendant’s actions were motivated
or substantially caused by his exercise of that right; and (3) the defendant’s actions caused him
some injury.”
Dorsett v. Cty. of Nassau
,
The Complaint adequately pleads the Press Corps Claim. It alleges that Defendant unconstitutionally threatened the White House press corps by warning reporters that they would be ousted from press conferences or have their press credentials revoked, if they spoke out in a way Defendant disfavored. The threats are lent credence by the fact that Defendant has acted on them before, by revoking Mr. Acosta’s credentials and barring reporters from particular press conferences. The Press Secretary indeed e-mailed the entire press corps to inform them of new rules of conduct and to warn of further consequences, citing the incident involving Mr. Acosta. The Complaint furthermore alleges that Defendant has decision-making authority to undertake these actions. As a result of the conduct, Plaintiff’s own member’s, Mr. Acosta’s, speech rights have been injured. Plaintiff has also suffered an injury to its right to receive information from the press corps.
The Press Corps Claim is also viable as a First Amendment retaliation claim. The Complaint alleges that Defendant revoked Mr. Acosta’s credentials only after a tense exchange, where Mr. Acosta asked Defendant critical questions and Defendant stated that Mr. Acosta was “rude” and should not work for CNN. The Press Secretary’s e-mail expressly stated that rules were being adopted, and other consequences might follow, due to the exchange. These facts plausibly allege that a motivation for Defendant’s actions is controlling and punishing speech he dislikes. The actions both injured Mr. Acosta’s speech rights and Plaintiff’s right to receive the press corps’ speech.
The Security Clearance Claim is also sufficiently pleaded. Defendant’s announcement that he would review the security clearances of six former government officials followed after some officials spoke critically about Defendant in the press. Defendant undoubtedly has authority to revoke the clearances. Defendant has plausibly threatened that, should the officials continue to provide critical commentary in the press, their security clearances would be jeopardized and revoked. Indeed, Defendant has already revoked Mr. Brennan’s security clearance, lending credence to the threat. As a result, Plaintiff has suffered an injury to its right to receive the six officials’ speech.
Similarly, Defendant’s conduct gives rise to a retaliation claim. Defendant only began considering whether to revoke the security clearances after several officials spoke out critically about him. These allegations evince that Defendant’s motivation was to punish the officials’ past speech and to deter the officials’ media speech going forward. The Complaint plausibly alleges Plaintiff’s consequent receipt-of-information injury.
C. Injunctive Relief
The surviving claims may only proceed as claims for declaratory, and not injunctive,
relief.
See
28 U.S.C. 2201(a) (a court “may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be sought,”
provided there is “a case of actual controversy within its jurisdiction”);
Knight First Amendment
Inst. at Columbia Univ.
,
Any injunction concerning the Press Corps Claim or Security Clearance Claim implicates
Defendant’s discretionary responsibilities, and is therefore improper. The President has
significant discretion over White House press credentials and reporters’ access to the White
House and Air Force One. Indeed, the Complaint expressly alleges that Defendant has authority
to adopt rules of conduct and to revoke press credentials where appropriate. Similarly, a
President has broad discretion over national security issues, including the security clearances of
current and former executive officials.
See
,
e.g.
, Ca
feteria & Rest. Workers Union, Local 473,
AFL-CIO v. McElroy
,
IV. CONCLUSION
For the foregoing reasons, the motion to dismiss for lack of subject matter jurisdiction is GRANTED in part and DENIED in part. The motion to dismiss for failure to state of claim is DENIED. Plaintiff’s request for oral argument is DENIED as moot.
The Clerk of Court is respectfully directed to close Dkt. Nos. 45 and 67.
SO ORDERED.
Dated: March 2 4 , 2020
New York, New York
Notes
[1] Plaintiff relies on
Bldg. & Const. Trades Council of Buffalo, New York & Vicinity v. Downtown
Dev., Inc.
,
[2] Defendant argues, to the contrary, that Mr. Acosta has no injury-in-fact because his press credentials were restored in November 2018. But this argument misunderstands the nature of the asserted injuries. Although loss of credentials may be injurious, Plaintiff has alleged instead that “speech [itself] has been adversely affected,” i.e. the injury of an ongoing chilling of speech and corollary ongoing interference with receipt of information. See Dorsett v. Cty. of Nassau , 732 F.3d 157, 160 (2d Cir. 2013) (“Plaintiff has standing if he can show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm,” like loss of credentials.)
[3] Defendant argues that the Complaint does not allege an injury because it “has not identified any
specific source from which its receipt of information has actually been disrupted” or that “any
particular speaker has actually been chilled.” But as discussed, the Complaint identifies the six
government officials whose security clearances are under threat. It explains why the clearances
are valuable and necessary for their continued service as government advisors. It also explains
that these officials are willing speakers. Therefore, Defendant’s threats to revoke their security
clearances present an objective harm and threat of future harm -- specifically, to the officials’
professions and reputation -- which plausibly impede their free speech.
See Meese v. Keene
, 481
U.S. 465, 473, 475 (1987) (finding speech injury to public official where a regulation created a
“Hobson’s choice of foregoing . . . exposition of [the official’s] own views or suffering an injury
to his reputation” and his ability to “practice his profession”);
accord Davis
, 689 F. App’x at
669
.
A speech injury occurs when the free flow of speech is impeded, and does not require
complete elimination of speech.
See Bordell
,