• by Wendy Davis  @wendyndavis, June 29, 2020

The White House has no grounds to immediately appeal a recent district court decision that President Donald Trump may have violated the First Amendment by retaliating against journalists based on their critical coverage, the organization PEN America argues in a new court filing.

“Defendant claims ... that he has a right to threaten and retaliate against reporters based on their viewpoints,” PEN America writes in papers filed late last week with U.S. District Court Judge Lorna Schofield in New York. “This argument is meritless.”

The group is urging Schofield to reject the Justice Department's request to seek the intervention of the 2nd Circuit Court of Appeals.

The fight dates to 2018, when the organization PEN America sought a declaratory judgment that Trump violated the constitution by retaliating against journalists based on their viewpoints, and by threatening the media in a way that could chill free speech. PEN America also sought an injunction prohibiting the federal government from taking action against media organizations and journalists for their criticism of the White House.

Among other claims, PEN America alleged that the administration wrongly revoked the press credentials of CNN's Jim Acosta after a contentious November 2019 press conference. (A federal judge in Washington, D.C. subsequently ordered the government to restore Acosta's press pass.)

Schofield ruled in March late that PEN America was entitled to pursue its request for a declaratory judgment. But she said the organization could not proceed with its request for an injunction, given that Trump has “discretionary authority” over matters like security clearances.

Two weeks ago, the Justice Department asked Schofield for permission to appeal her ruling to the 2nd Circuit.

Among other arguments, the White House argues that Trump's decisions about how to treat the media are subject to review by judges.

“The constitutional considerations preventing declaratory and injunctive relief against a sitting President weigh particularly heavily in the present case, where plaintiff seeks to subject the sitting President’s interactions with the press to judicial scrutiny,” the Justice Department writes. “Even if a declaratory judgment could conceivably lie against the President in some situations, this context, which involves the President’s interactions with the press and with the public through the press, is not one of them.”

PEN America counters that accepting the Justice Department's argument “would place the President above the law and would effectively mean that the President is not subject to the First Amendment.”