Yesterday, Judge Schofield ruled that a claim for declaratory relief to prevent the White House and President Donald Trump from revoking or threatening to revoke White House press credentials could proceed.  The case was brought by PEN America Center, a nonprofit of association of media professionals, claiming that these threats chilled First Amendment rights for journalists (specifically CNN’s Jim Acosta) and also prevented PEN and its members from receiving information that would have been provided to the organization by these journalists.

The order found that the “Press Corps” claim, seeking declaratory relief on First Amendment grounds to prevent the White House from arbitrarily revoking press credentials, was properly pled:

The Complaint adequately pleads the Press Corps Claim. It alleges that Defendant unconstitutionally threatened the White House press corps by warning reporters that they would be ousted from press conferences or have their press credentials revoked, if they spoke out in a way Defendant disfavored. The threats are lent credence by the fact that Defendant has acted on them before, by revoking Mr. Acosta’s credentials and barring reporters from particular press conferences. The Press Secretary indeed e-mailed the entire press corps to inform them of new rules of conduct and to warn of further consequences, citing the incident involving Mr. Acosta. The Complaint furthermore alleges that Defendant has decision-making authority to undertake these actions. As a result of the conduct, Plaintiff’s own member’s, Mr. Acosta’s, speech rights have been injured. Plaintiff has also suffered an injury to its right to receive information from the press corps.

The Press Corps Claim is also viable as a First Amendment retaliation claim. The Complaint alleges that Defendant revoked Mr. Acosta’s credentials only after a tense exchange, where Mr. Acosta asked Defendant critical questions and Defendant stated that Mr. Acosta was “rude” and should not work for CNN. The Press Secretary’s e-mail expressly stated that rules were being adopted, and other consequences might follow, due to the exchange. These facts plausibly allege that a motivation for Defendant’s actions is controlling and punishing speech he dislikes. The actions both injured Mr. Acosta’s speech rights and Plaintiff’s right to receive the press corps’ speech.

Judge Schofield denied a request for injunctive relief, noting that the White House had broad discretion to adopt rules regarding the White House press corps, even if the claims for declaratory relief could proceed.  Judge Schofield also ruled that PEN lacked standing to challenge other decisions, such as a threat to issue an executive order that would have increased postal rates charged to Amazon, because no member of PEN had standing to challenge these decisions.