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PEN American Center, Inc. v. Trump

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  1. Newsgathering

Amicus brief filed by the Reporters Committee for Freedom of the Press and eight First Amendment and press advocacy organizations

Court: U.S. District Court for the Southern District of New York

Date Filed: May 17, 2019

Update: On March 24, 2020, the U.S. District Court for the Southern District of New York rejected PEN America’s claim to organizational standing based on diversion-of-resources injury. However, the court held that the nonprofit does have associational standing to challenge two aspects of President Trump’s campaign to chill reporting he dislikes.

Background: In 2018, PEN America, a nonprofit that defends free expression, filed a complaint against President Donald Trump, claiming that he violated the First Amendment by threatening to use government power to punish journalists who report critically of his administration.

The government moved to dismiss PEN America’s complaint, arguing that PEN America lacked standing because it could not demonstrate that the president’s actions injured the organization. PEN America opposed the motion to dismiss, arguing that injury was indeed inflicted because, among other reasons, it had to divert resources from other projects to address the president’s unconstitutional conduct.

Our Position: The Court should reject the government’s motion to dismiss and hold that PEN America has proven injury sufficient to meet the requirements of organizational standing.

  • When governmental action forces an organization to re-channel its resources to respond to a threat, that diversion of resources constitutes a “distinct and palpable injury” to the organization itself.
  • Unless organizations like amici or PEN America are able to bring First Amendment suits when they have diverted resources to respond to First Amendment violations, many First Amendment violations might simply go unaddressed.
  • Due to the changing economics of the news industry, smaller media outlets are increasingly relying on organizations like amici and PEN America to vindicate First Amendment rights.

Quote: “Many regional, local, and nonprofit news organizations and journalists may not have the resources necessary to litigate complex First Amendment cases. Allowing organizations like amici and PEN America to pursue these claims may therefore be not only proper but necessary to ensure that the claims can be brought at all.”

Related: In early 2020, the Reporters Committee filed a friend-of-the-court brief in the case of Karem v. Trump, arguing that the White House’s suspension of reporter Brian Karem’s press credentials was unconstitutional.

In the wake of President Trump’s legal threats against a book publisher and author, the Reporters Committee published an article in 2018 emphasizing the need for stronger anti-SLAPP laws to protect the press against frivolous lawsuits aimed at chilling news reporting and free speech.