In Defense of the Fourth Estate, A Landmark First Amendment Lawsuit Against President Trump Will Proceed

Il quarto stato (1901): a march of strikers in Turin, Italy / Public Domain

The term Fourth Estate or fourth power refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues. Though it is not formally recognized as a part of a political system, it wields significant indirect social influence.

The derivation of the term fourth estate arises from the traditional European concept of the three estates of the realm: the clergy, the nobility, and the commoners. The equivalent term “fourth power” is somewhat uncommon in English, but it is used in many European languages, including German (Vierte Gewalt), Spanish (Cuarto poder), and French (Quatrième pouvoir), to refer to a government’s separation of powers into legislative, executive, and judicial branches.



Today a federal court ruled against President Trump in a lawsuit that claims he has used government power to retaliate against media coverage and reporters he dislikes in violation of the First Amendment. Specifically, the court denied a government motion to dismiss the case and will allow it to go forward on allegations that President Trump has retaliated against the White House press corps and certain holders of security clearances who work as media commentators based on their First Amendment-protected speech.

PEN America, with counsel Protect Democracy, the Yale Law School Media Freedom of Information & Access Clinic, and Davis Wright Tremaine, filed the landmark lawsuit to stop President Trump’s campaign of censorship against the press. The U.S. District Court for the Southern District of New York rejected the president’s bid to dismiss the case, allowing it to proceed to the discovery phase.

Susan Nossel courtesy of PEN America Center under  CC BY-SA 4.0 license

SUZANNE NOSSEL, CEO of PEN AMERICA, the plaintiff in the case, issued the following statement:

“It’s hard to think of a moment in American history in which unvarnished, accurate news reporting has mattered more than it does now. This decision is a victory not just for PEN America and our own writers, but also for the journalists and media outlets doing the vital, risky work of keeping us all informed.  But above all, it is a win for all individuals who depend on a free press to dig out the facts and hold leadership accountable without fear of reprisal.  We sued the president because we believe the First Amendment prohibits him from retaliating against speech he dislikes. We are grateful that this essential suit can move forward, vindicating the rights of all those who rely on a free press.”  
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JENNIFER EGAN, PRESIDENT of PEN AMERICA, issued the following statement:“PEN America is profoundly grateful for the court’s timely decision. Though we filed our lawsuit more than a year ago, the Trump administration’s punitive stance toward the press has continued unabated, with corrosive results for truth, fact, our democracy, and—most recently—public health.”

KRISTY PARKER, COUNSEL for PROTECT DEMOCRACY, one of the organizations representing PEN America in the lawsuit, issued the following statement:

“The president can take to Twitter to complain all he wants about media coverage, but he abuses his power and violates the Constitution when he uses his office to punish members of the media. This is not North Korea—we don’t allow our politicians to control what the press says or punish the media for coverage that Dear Leader doesn’t like. Just the opposite—we rely on the media to hold the powerful accountable to the people. It’s important for all Americans that the press can do their jobs freely.”

The lawsuit was filed by Protect Democracy and co-counsel on behalf of PEN America, a leading organization of writers and literary professionals. The lawsuit claims that President Trump has violated the First Amendment rights of PEN America and its members through his threats to use—and actual use of—government power to punish the speech of those he perceives as critics in the media.

The plaintiffs argued that under the First Amendment’s protection for freedom of speech, President Trump can express his own views and criticize journalists and media organizations, but he cannot issue credible threats or deploy government power to retaliate against the media for its coverage. As laid out in the complaint, the president has in at least five situations used or threatened to use the regulatory and enforcement powers of government to punish the speech of journalists. He has:

  • Initiated a government review to raise postal rates to punish the owner of the Washington Post;
  • Directed DOJ enforcement actions against media companies, including CNN’s parent company Time Warner;
  • Interfered with White House press access;
  • Threatened to revoke broadcast licenses; and
  • Revoked the White House press credentials and security clearances of media commentators.

The court granted the government’s motion to dismiss on claims related to the first four situations, finding that the plaintiffs lack standing to sue, but allowed the case to go forward on the claims related to press credentials and security clearances. The plaintiffs are asking the court to issue a declaratory judgment—a ruling that the president’s use of government power to punish the press violates the First Amendment. A ruling in favor of the plaintiffs could have far-reaching consequences for a president who has made a habit of retaliating against his media critics, and for future presidents who might seek to escalate attacks on the press.

The government had argued that the plaintiffs lacked standing to sue and failed to state a legal claim. Today’s ruling held that the plaintiffs can pursue claims for declaratory relief based on allegations of retaliation against the White House press corps and holders of security clearances.

The case will now move into discovery, where plaintiffs will be able to obtain documents from the government to substantiate its claims that President Trump has sought to use the regulatory state to punish media he does not like.

Read more about the case HERE.

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This post is courtesy of Wikipedia and PEN America.

PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. It champions the freedom to write, recognizing the power of the word to transform the world. Itsmission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.



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Critical Minds, Critical Times: UNESCO World Press Freedom Day

Critical Minds for Critical Times: The media’s role in advancing peaceful, just and inclusive societies is the theme of UNESCO’s main celebration of this year’s World Press Freedom Day, May 3rd. The event will take place in Jakarta, Indonesia, from May 1-4.


The program of the four-day conference has been designed to raise awareness of the importance of free and fact based journalism in promoting peace and justice, and supporting the efficiency, accountability and inclusiveness of institutions, in line with the Sixteenth United Nations Sustainable Development Goal. The event is organized with the Government of Indonesia and the Indonesian Press Council.

“SUSTAINABLE DEVELOPMENT GOAL 16:Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” United Nations Department of Economic and Social Affairs, Division of Sustainable Development MORE

The May 3 celebration will be opened by Jusuf Kalla, Vice President of the Republic of Indonesia, and Irina Bokova, Director-General of UNESCO. It will feature a plenary session on Quality journalism: a public good for just, peaceful and inclusive societies and six parallel sessions on subjects spanning media and information as a bulwark against hate speech, inclusiveness and gender equality, and violent extremism. A specific session will be dedicated to Press Freedom in Southeast Asia.

In the evening of May 3 Ms Bokova will award the 2017 UNESCO/Guillermo Cano World Press Freedom Prize to Dawit Isaak, the imprisoned Eritrean-born journalist who will be represented by his daughter, Bethelem Isaak, during a ceremony that will be hosted by Joko Widodo, the President of Indonesia.


“Dawit Isaak (born 28 October 1964) is a Swedish-Eritrean playwright, journalist and writer, who has been held in prison in Eritrea since 2001 without trial and is considered a traitor by the Eritrean government. Amnesty International considers him a prisoner of conscience and has called for his immediate and unconditional release. For years, he was the only Swedish citizen held as a prisoner of conscience. He is now joined by the Swedish citizen and publicist Gui Minhai who was abducted by Chinese agents from Thailand in October 2015 and has been held prisoner in China since that time.” Wikipedia MORE

Dawit Isaak story, Free Dawit


The morning of May 4 will be dedicated to a second plenary session entitled Spotlight on investigative journalism: Perspectives from Southeast Asia and beyond. It will be followed by six parallel sessions on subjects including the impact of fake news on journalism, journalists’ safety and internet universality.

Artistic freedom, a principle enshrined in UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions, will be the focus of three sessions on May 2 and 4.

Notable speakers to address the conference will include José Ramos-Horta, Former President of Timor-Leste and 1996 Nobel Peace Prize laureate, Richard Gingras, Vice President of News at Google, and Oscar Cantu Murguia, editor of Norte, the Mexican newspaper that had to close down operations this month following the killing of one of its journalists.

The main concerns and principles expressed during the four-day conference will be reflected in a declaration, the Jakarta Declaration, that participants are expected to adopt at the close of the event.

Also in Jakarta on May 3 and 4, Hong Kong Baptist University will host a conference about academic research into issues pertaining to the safety of journalists with participants from many countries.

Some thirty partners are contributing to World Press Freedom Day 2017 in Jakarta with events that will feature training sessions, workshops and roundtable discussions and are expected to draw more than 1,200 participants.

Approximately eighty other Press Freedom events are being organized around the world this year and leading news organizations including Al Jazeera, El Pais and Rappler will host dedicated blogs and feature special content for World Press Freedom Day. An awareness-campaign has been launched with the Cartooning for Peace Network( link is external) to raise visibility on the importance of freedom of expression through a series of press cartoons.

– except where indicated, post is courtesy of UNESCO