PEN America settles landmark first amendment lawsuit with u.s. government; Precedent shields reporters from retaliation by a sitting president

This statement was originally published on on 18 February 2021.

Settlement agreement entered today affirms basis of PEN America’s challenge on behalf of its journalist Members who were threatened and retaliated against by President Trump

PEN America and its counsel Protect Democracy announced today that it has settled its 2018 lawsuit PEN America v. Trump with the United States government. The settlement agreement, entered today in the U.S. District Court of the Southern District of New York, leaves intact a March 2020 federal court ruling that upheld PEN America’s standing to pursue a challenge to President Trump’s threats and acts of retaliation against journalists and the media. The decision forms a pathbreaking precedent providing accountability for officials who use the power of government to exact reprisals against the press.

“Our lawsuit and the settlement reached today represents an important win for free speech, a free press, and the First Amendment,” said PEN America CEO Suzanne Nossel. “The outcome is clear: Not even the president of the United States can invoke the power of government to threaten members of the press based on their coverage. While a president has First Amendment rights, he or she does not have license to use the authority of the office to menace critical journalists or punish their coverage. This result makes clear that future such abuses of power can be held to account in court. We are grateful that the government has agreed that this important precedent will stand without further challenge, upholding the crucial role of a free press as a cornerstone of democracy.”

“Let’s hope that history remembers former President Trump as unique among his peers in abusing his office to bully members of the press,” said Protect Democracy’s Kristy Parker. “But there’s still a toxic anti-media streak in this country that Trump’s authoritarian behavior has fueled. We’d be naive to think that no future political candidates would consider emulating him, which is why this case was such a crucial marker. Would-be imitators now know that this anti-First Amendment behavior will be challenged and stand a strong chance of being held to account. We congratulate and thank PEN America for standing up for press freedom and our right to dissent.”

PEN America – with counsel Protect Democracy, the Yale Law School Media Freedom and Information Access Clinic, and Davis Wright Tremaine – filed the landmark lawsuit in 2018 to stop then-President Trump’s campaign of retaliation against the press. The suit sought to stop President Trump from using the machinery of government to retaliate or threaten reprisals against journalists and media outlets for coverage he disliked. In a 2020 ruling, a federal judge permitted PEN America’s First Amendment case to proceed and found that PEN America had standing to bring the lawsuit on behalf of its 7,500 Members, including journalist Jim Acosta of CNN whose press credentials were temporarily revoked by the Trump administration.

“Our first amendment rights are always worth defending,” said CNN’s Jim Acosta. “And it’s in all our interests as Americans that we maintain a strong and independent free press in the United States.”

According to the terms of the settlement agreement, the lawsuit is being dismissed without prejudice, upholding the March 24, 2020 ruling by Judge Lorna Schofield of the U.S. District Court for the Southern District of New York. At that time, Schofield wrote that PEN America plausibly contended that the government violated the First Amendment by threatening the White House press corps, particularly Acosta, over its coverage of the president, and by threatening to revoke the security clearances of former government officials who spoke out against the president in the press.

“This case broke new ground, and there were those who doubted whether we would be able to challenge the White House on the basis of statements and actions by a sitting president to threaten those whose coverage he disliked. This agreement demonstrates that when writers and journalists mobilize, we can and will take on the powerful who seek to pick and choose which stories get told,” said PEN America’s Nora Benavidez, director of U.S. free expression programs at the organization. “We’re thankful for all those who rallied to this cause, and know that we are sending a clear signal to future leaders to be wary of infringing on the First Amendment rights of the press.”

Download a PDF of the settlement agreement.

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Human Rights Network for Journalists-Uganda (HRNJ-Uganda) is a network of human rights journalists in Uganda working towards enhancing the promotion, protection and respect of human rights through defending and building the capacities of journalists, to effectively exercise their constitutional rights and fundamental freedoms for collective campaigning through the media.

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