Pen American Center, Inc. v. Trump

Background

PEN American Center, Inc. (PEN America), a nonprofit association of writers and media professionals, sued President Donald J. Trump. It sought a declaration of the parties’ legal rights and an injunction based on allegations that the President used government power to punish or threaten journalists and others because of critical reporting.

The complaint described five categories of conduct: (1) barring White House press access or revoking or threatening to revoke press credentials; (2) revoking or threatening to revoke security clearances of former government officials who criticized the President in the press; (3) threatening to challenge or revoke broadcast licenses; (4) directing the United States Postal Service to consider raising package-delivery rates, allegedly affecting Amazon and the Washington Post; and (5) directing or influencing regulatory and investigative actions involving the AT&T-Time Warner merger, Google, and social-media companies.

PEN America alleged that these actions chilled journalists’ speech. The complaint identified Jim Acosta, a PEN America member and CNN White House reporter, and alleged that the President had targeted him by criticizing his questions and that the White House Press Secretary later revoked his press credentials. The complaint also alleged that the President considered revoking six former government officials’ security clearances after some had criticized him in the media, and that the President ultimately revoked John Brennan’s clearance.

The Motion to Dismiss

The President moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that PEN America lacked constitutional standing—the required personal connection to sue in federal court—and that the court lacked authority to issue an injunction against him. He also moved under Rule 12(b)(6), arguing that the complaint did not adequately state a legally valid claim.

The court considered the complaint’s factual allegations as true for purposes of the motion. It analyzed standing separately for each category of challenged conduct rather than treating the allegations as one general policy.

Standing for the Press Corps Claim

The court held that PEN America had associational standing to pursue the claim concerning White House press access. Associational standing allows an organization to sue on behalf of its members when at least one member could sue individually, the issue relates to the organization’s purpose, and the individual member’s participation is not required.

The complaint identified Acosta as an affected member. The court found that the alleged loss of press access and threats of similar punishment plausibly caused him a concrete injury by chilling his speech and interfering with his ability to receive information from other reporters. The court also found that the requested declaration and possible injunction were aimed at the challenged practice as a whole and did not require individualized proof about each member.

The court separately found that PEN America had direct organizational standing on the press-access claim. It reasoned that the alleged chilling of the White House press corps’ questions and reporting impaired PEN America’s ability to receive information that it monitored and used in its advocacy work.

Standing for the Security Clearance Claim

The court held that PEN America also had direct organizational standing to challenge the threats and revocations involving security clearances. The complaint plausibly alleged that the President’s threats, together with the revocation of Brennan’s clearance, chilled the speech of former officials who were willing and frequent media speakers. Because PEN America relied on those officials for information and expertise about the Administration, the alleged loss or impairment of their speech was sufficiently particularized to the organization.

The court rejected standing based on unidentified members or other unnamed clearance holders. Those allegations were too speculative and did not explain how the challenged actions had injured particular people.

Other Challenged Conduct

The court found that PEN America lacked associational and direct organizational standing for the allegations involving broadcast licenses, postal rates, the AT&T-Time Warner merger, and regulatory threats involving internet companies. The complaint did not identify a PEN America member with a sufficient personal stake in those matters. Acosta’s connection to them was too indirect, and any effect on media speech or PEN America’s receipt of information was too speculative.

The court also rejected PEN America’s theory that it had been injured by diverting resources to domestic advocacy. PEN America had increased domestic spending by opening an office, commissioning a study, publishing reports, and organizing events. The court held that these activities were within PEN America’s core mission rather than resources diverted away from that mission.

Whether the Claims Were Adequately Stated

The court held that the complaint plausibly stated the press-access and security-clearance claims under two First Amendment theories: unconstitutional government threats that chill speech and retaliation for protected speech.

For the press-access claim, the alleged warnings, prior revocation of Acosta’s credentials, and subsequent communication of additional conduct rules plausibly suggested that reporters could lose access or credentials because of disfavored speech. The court also found that the allegations plausibly connected the revocation of Acosta’s credentials to his critical questions and the President’s stated hostility toward him.

For the security-clearance claim, the court found that the timing of the review announcement, the officials’ critical media commentary, and the eventual revocation of Brennan’s clearance plausibly supported an inference that the actions were intended to punish past speech and deter future commentary.

Injunctive Relief

The court ruled that the surviving claims could proceed only for declaratory relief. It denied injunctive relief because an injunction against the President would interfere with discretionary responsibilities involving White House press access and national-security clearances. The court distinguished discretionary actions, which involve official judgment, from purely ministerial actions, which leave nothing to the official’s discretion.

Disposition

The court granted in part and denied in part the motion to dismiss for lack of subject-matter jurisdiction. The motion to dismiss for failure to state a claim was denied. Claims for declaratory relief concerning press credentials and security clearances could proceed; the other allegations lacked standing. The request for injunctive relief was denied, and PEN America’s request for oral argument was denied as moot.