Judge Authorizes Appeal In PEN America's First Amendment Fight With Trump

A federal judge has authorized an immediate appeal of her decision to allow PEN America to proceed with claims that President Trump violated the First Amendment by retaliating against journalists based on their critical coverage.

In a decision issued Thursday, U.S. District Court Judge Lorna Schofield in New York ruled that the dispute presented legal questions that lent themselves to appellate review -- including whether a judge could issue a declaratory judgment against a sitting President over his discretionary conduct.

Schofield said that question implicates “constitutional considerations,” and that its resolution “would materially advance the ultimate termination of the litigation.”

The ruling paves the way for the Department of Justice to as the 2nd Circuit Court of Appeals to intervene in the matter.



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 that PEN America was entitled to pursue its request for a declaratory judgment. But she said the organization couldn't proceed with its request for an injunction, given that Trump has “discretionary authority” over matters like security clearances.

The Department of Justice then asked Schofield for permission to appeal to the 2nd Circuit.

The administration said it wanted to raise several arguments, including whether Trump can be subjected to a lawsuit seeking a declaratory judgment based on “non-ministerial actions” he performed in an official capacity.

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