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.



Jamie Dedes:

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“Every pair of eyes facing you has probably experienced something you could not endure.”  Lucille Clifton

H.R. 2054 Has Bipartisan Support and would set ground rules for how Google, Facebook use news content; could potentially help local news outlets

Woodcut by Tommaso Garzoni depicting a town crier with a trumpet / Public Domain

PEN America says proposed law would set ground rules for how Google, Facebook use news content; could potentially help local news outlets



A bill that would provide a temporary exemption to antitrust rules for news outlets represents a potentially positive step toward addressing the economic crisis affecting local news outlets throughout the country, PEN America announced this week,  but cautioned that the effectiveness of the bill will hinge on whether small- and mid-sized news outlets are meaningfully represented in any resulting negotiations.

The Journalism Competition and Preservation Act of 2019 aims to provide news providers a two-year enxemption from federal antitrust laws in order to collectively negotiate with Google and Facebook over how the digital giants can use those outlets’ online content. Enjoying bi-partisan backing and supported by the newspaper trade group the News Media Alliance—which represents almost 2,000 news organizations—the bill is currently being considered in both the House and the Senate.

“Local news is in crisis, something that affects not only the media sector but that deeply impacts access to critical information for millions of Americans,” said Thomas O. Melia, PEN America’s Washington director. “It is heartening to see bipartisan support for legislation responding to this crisis, and the Journalism Competition and Preservation Act offers an important opportunity for news outlets to negotiate a more equitable arrangement with the tech giants.”

Since 2005, newspapers have lost more than $35 billion in ad revenue. More than 20 percent of the nation’s newspapers have shuttered within the last twenty years. Numerous journalists, media reform advocates, and analysts—including PEN America—have concluded that local news is in crisis. One of the key drivers of this crisis, PEN America argued in its November 2019 report “Losing the News,” is the fact that news outlets see little of the ad revenue for users who find or read their news articles through Facebook or Google.

“To address the crisis in a meaningful way, negotiations between tech companies and news publishers will have to include independent small and mid-sized outlets, as well as those that specifically serve those communities most affected by the decline of local news ecosystems: communities of color and low-income and rural communities,” said PEN America’s Melia.

“Ultimately, the success of this act will be determined by whether it helps ensure Americans continue to have access to original, local, quality news on critical issues in their lives. We welcome this effort to take a creative approach to the local news crisis and urge that hearings on this legislation be convened as soon as possible to refine the proposal.

“Finally, we note that this act represents only one step towards addressing the local news crisis. For such an urgent and serious problem, more—much more—will be needed. That is why PEN America continues to call for a Congressional commission on the local news crisis, to help craft the solutions that will ensure the future of local American journalism.”

This content is courtesy of PEN America and Wikipedia.

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. Its mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.


Jamie DedesAbout /Testimonials / Disclosure / Facebook / Medium Ko-fi

Your donation HERE helps to fund the ongoing mission of The Poet by Day in support of poets and writers, freedom of artistic expression, and human rights.

Poetry rocks the world!



FEEL THE BERN

For Peace, Sustainability, Social Justice

The Poet by Day officially endorses Bernie Sanders for President.

The New New Deal

Link HERE for Bernie’s schedule of events around the country.

“Democracy is not a spectator sport.” Bernie Sanders



“Every pair of eyes facing you has probably experienced something you could not endure.”  Lucille Clifton

Craig Newmark Philanthropies Awards PEN America $250,000 To Combat Disinformation and Harassment Online


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Graphic showing differences between (deliberate) disinformation, unintentional misinformation, and hoax according to Wikimedia Research courtesy of Srijankedia under CC BY-SA 4.0 license

This gift will also allow PEN America to expand its continued efforts to fight against disinformation by engaging with digital platforms to identify ways to counter the spread of disinformation while preserving free expression.



This week PEN America announced a $250,000 gift from Craig Newmark Philanthropies for its work to combat disinformation and harassment online over the next year. This significant investment will allow the literary and free expression organization to re-energize its work ahead of the 2020 US presidential election cycle.

Through this gift, PEN America will expand its online harassment self-defense trainings for newsrooms, journalism schools, and writers’ associations. The organization will also work closely with major news organizations, including the San Diego Union Tribune and Dallas Morning News, to develop best practices for protecting journalists from online abuse.

How Disinformation Can Be Spread, explanation by U.S. Defense Department (2001) / United States Department of Defense / Public Domain

“During a fraught political moment, we’re especially honored that Craig is doubling down on his contributions to our vital work in promoting truth and transparency and defending journalists and writers from online abuse,” said Suzanne Nossel, CEO of PEN America. “As social platforms and digital spaces explode with vitriol, combating online harassment – and the chill on free expression that it represents – has never been more crucial. We are grateful to Craig Newmark Philanthropies for supporting our efforts to push back against disinformation and help ensure that the American people have the information they need during the upcoming campaign.”

This gift will also allow PEN America to expand its continued efforts to fight against disinformation by:

  • Engaging with digital platforms to identify ways to counter the spread of disinformation while preserving free expression;

  • Organizing an expert convening to spotlight and respond to online disinformation campaigns throughout the 2020 election cycle;

  • Encouraging 2020 Democratic and Republican party platforms to include language on addressing the fight against disinformation;

  • Mobilizing PEN America Members in all 50 states to press candidates and elected officials to reject the use of disinformation; and

  • Advocating for federal legislation that promotes information integrity and digital freedom.

“We face a set of complex challenges ahead of the 2020 US presidential election, especially when it comes to combatting the spread of disinformation and the harassment of journalists online.” said Craig Newmark, founder of craigslist and Craig Newmark Philanthropies. “PEN America’s holistic efforts will help prepare journalists and elected officials to preserve our democracy and elections in this information war.”

In 2017, PEN America surveyed writers and journalists to assess the impact of online abuse. The survey found that, of those who had experienced online harassment, two-thirds reported reacting severely, including refraining from publishing their work, permanently deleting their social media accounts, and/or fearing for their safety or the safety of their loved ones. These findings contributed to the creation of the organization’s Online Harassment Field Manual and online harassment self-defense trainings, which equip writers and journalists with the best available methods and means to protect themselves and their freedom to write. Thanks to this gift from Craig Newmark Philanthropies, PEN America will be able to continue this work.

This post is compiled courtesy of Wikipedia, PEN America, and Craig Newmark Philanthropies, and the United States Defense Department.

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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. Its mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

Craig Newmark Philanthropies was created by craigslist founder Craig Newmark to support and connect people and drive broad civic engagement. It works to advance people and grassroots organizations that are getting stuff done in areas that include trustworthy journalism & the information ecosystem, voter protection, gender diversity in technology, and veterans & military families.



Poetry Rocks the World!

Jamie DedesAbout /Testimonials / Disclosure / Facebook / Medium Ko-fi

Your donation HERE helps to fund the ongoing mission of The Poet by Day in support of poets and writers, freedom of artistic expression, and human rights.

Link HERE for Free Human Rights eCourse designed and delivered by United For Human Rights, Making Human Rights a Fact



FEEL THE BERN

For Peace, Sustainability, Social Justice

The Poet by Day officially endorses Bernie Sanders for President.

The New New Deal

Link HERE for Bernie’s schedule of events around the country.

“Democracy is not a spectator sport.” Bernie Sanders



“Every pair of eyes facing you has probably experienced something you could not endure.”  Lucille Clifton

PEN America Calls for Trump Administration to Open Migrant Camp to Journalists’ Scrutiny; What You Can Do to Close the Camps by Kella Hanna-Wayne

100-mile border region on the U.S.–Mexico border courtesy of the Environmental Protection Agency / Public Domain

“A crude age. Peace is stabilized with cannon and bombers, humanity with concentration camps and pogroms. We’re living in a time when all standards are turned upside-down, Kern. Today the aggressor is the shepherd of peace, and the beaten and hunted are the troublemakers of the world. What’s more, there are whole races who believe it!” Erich Maria Remarque, Flotsam



Climbing the Mexico–United States barrier fence in Brownsville, Texas courtesy of Nofx221984 and generously released into Public Domain

PEN America issued the statement [below] in response to The Washington Post’s report that the Trump Administration is blocking journalists from accessing migrant detention camps on the southern border to see the facilities for themselves and speak to children, who are reportedly held in squalid conditions.

“It is shocking that the American public largely must learn about the dangerous conditions at these detention centers not through reporters being able to cover the news, but through second-hand reports from lawyers and advocates granted access under a legal agreement with the U.S. border patrol,” said Nora Benavidez, PEN America’s Director of U.S. Free Expression Programs. “The fact that journalists are being sealed off and held behind a wall of secrecy, unable to show the American people the faces and voices of those who are suffering in squalor is one more unconscionable aspect to this epic horror story on the southern border.”

“Cutting the press off from this story to hide what is going on is unacceptable and unwarranted; professional journalists are well-equipped to handle issues of privacy and consent, and this should pose no barrier to press access. The American public has a right to see for themselves what is happening in these camps through first-hand accounts, images and video documented by professional journalists. Indeed, the fact that every story that does make it to a reporter galvanizes public attention and action demonstrates the importance of that reporting. PEN America calls on the Trump administration to open the camps to the scrutiny of the press–and thus, the American people–immediately, and end this effort to keep what is happening in the detention centers a secret.”

PEN America has previously spoken out and advocated about press access to migrant detention centers and the situation for journalists covering the immigration crisis on the border. In October 2018, it hosted a panel discussion at the Texas Book Festival entitled “Stories (Un)told,” featuring journalists speaking to the challenges of covering child detention issues and immigration more broadly. Following months of tracking and public comments on the situation of lawyers and journalists being surveilled at the southern U.S.-Mexico border, PEN America joined a coalition of human rights and media freedom organizations in sending an open letter to the Department of Homeland Security in May, 2019, expressing concern for the privacy violations and explicit targeting by Customs and Border Protection of journalists, activists, and lawyers working on issues around the “migrant caravan”. Following our letter, the Department of Homeland Security acknowledged it had engaged in the surveillance and tracking of these individuals. PEN America has also condemned the unacceptable practice of the government’s surveillance of journalists reporting on this issue and authored a petition urging the administration to stop monitoring journalists at the border. That petition has garnered more than 58,000 signatures to date.

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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. Its mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.


From Kella Hanna-Wayne, poet, blogger, activist

“Today, I read something terrible; a story that possibly upset me more any other news story from our current administration and it filled me with helplessness.

“Over the past year, Trump’s immigration policies have become increasingly strict and dehumanizing. Detention centers, separation of families without keeping records, poor hygiene, inadequate access to food, water, and medical attention, children in cages– these were all themes among reports of the horrifying conditions our government was signing off on for immigrants, regardless of their documentation.

“But in the last week, it came to light that not only is Trump using Fort Sill– the base used to hold Japanese-Americans in concentration camps during WWII– to hold immigrant children, but that our government is now using concentration camps as a strategy to manage the influx in immigrants coming to the US. “

Kella goes on from these introductory remarks to provide a comprehensive list of tips and resources: What You Can Do to Close the Camps. I particularly appreciate it when folks don’t just regurgiate the bad news we’re all reading anyway but who go on to provide tools for mitigating the travesties. Bravo, Kella!

Stay tuned for a comprehensive interview with Kella here on The Poet by Day.


ABOUT

Recent in digital publications: 
* Four poemsI Am Not a Silent Poet
* Remembering Mom, HerStry
* Three poems, Levure littéraire
Upcoming in digital publications:
* Over His Morning Coffee, Front Porch Review
* From the Small Beginning, Entropy Magazine (Enclave, #Final Poems)

A mostly bed-bound poet, writer, former columnist and the former associate editor of a regional employment newspaper, my work has been featured widely in print and digital publications including: Ramingo’s Porch, Vita Brevis Literature, Connotation Press, The Bar None Group, Salamander Cove,I Am Not a Silent Poet, Meta/ Phor(e) /Play, The Compass Rose and California Woman. I run The Poet by Day, a curated info hub for poets and writers. I founded The Bardo Group/Beguines, a vitual literary community and publisher of The BeZineof which I am the founding and managing editor.


“Every pair of eyes facing you has probably experienced something you could not endure.”  Lucille Clifton



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