PEN lawsuit alleges Trump violates First Amendment - here's what you need to know

President Donald Trump has called parts of the media “fake news” and “the enemy of the American people.” While those statements are concerning to many journalists, he is free to say them without legal consequence.

However, some in the media believe that Mr Trump wields his presidential power in a way that illegally threatens free speech, by punishing those with whom he disagrees.

One organisation, PEN America, which has criticised Mr Trump for years, is now filing a lawsuit against him. They claim that he has violated the First Amendment of the US Constitution with attempts to curb free speech.

What does the First Amendment actually say about free speech?

The First Amendment, on the Bill of Rights of the Constitution, states - with emphasis added:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What is PEN?

PEN stands for Poets, Playwrights, Editors, Essayists, Novelists. The group says its mission is “to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.” PEN America claims to have more than 7,200 members.

Why is PEN suing Trump for Free Speech violations?

PEN and others allege that Mr Trump has expressed disdain for freedom of speech before, including by calling for the firing of NFL players like Colin Kaepernick for kneeling during the national anthem ahead of games. However, expressing dislike for free speech is protected under free speech, PEN admits.

PEN’s issue with Mr Trump is not his criticism of free speech, but what they describe as “using the machinery of government to retaliate or threaten reprisals against journalists and media outlets for coverage he dislikes.”

What exactly did Trump do?

PEN claims that Trump targets journalists and media companies and uses his power to harm them, or threatens to do so. For example, President Trump threatened to disrupt a merger of ATT&T and Time Warner after criticising their media coverage. The White House “disinvited” a CNN reporter from a public White House press event after she asked President Trump questions about Vladimir Putin and Michael Cohen. Mr Trump has also threatened to revoke press passes from other White House correspondents.

Jeff Bezos owns both Amazon and the newspaper The Washington Post, and Mr Trump has incorrectly stated that they are formally affiliated companies. Trump is reportedly “obsessed” with Amazon, and he has tweeted about his dislike for, in his words, “Fake News Washington Post.” Possibly as a result, Trump signed an executive order for the US Postal System to increase prices. In itself, this would not be an issue, but this appears to be an attack on Amazon.

Has he violated the right to free speech before?

Yes. In May of 2018, a federal court ruled that President Trump had violated the right to freedom of speech by blocking his critics on Twitter. The judge ruled the Twitter account @realDonaldTrump is a public forum operated by the government. Therefore, blocking people from seeing that forum based on their viewpoint means discriminating against free speech.

Is he violating free speech now?

Wayne Giampietro, general counsel at the First Amendment Lawyers Association, says that Trump’s attacks on media companies and journalists are concerning, but you’d have to prove that they happened as retaliation for speech to say for sure that they violate the First Amendment.

“If indeed it’s retaliatory, then that’s a real problem,” Mr Giampetro told The Independent. “But is it? I don’t know.”

Will PEN America win the suit?

It’s hard to say. “I believe there is great validity to the suit,” Mr Giampetro explained. However, there is an issue with “standing,” meaning that the organisation that filed the suit is not directly harmed. It would help if The Washington Post or one of the journalists who were barred from the White House joined the lawsuit. Then, the plaintiff still needs to prove that Mr Trump’s threats to harm disrupt media organisations were in fact because he disagreed with what they said, and not because he independently believed that his actions were prudent.