Industry & Advocacy News
March 27, 2020
On Tuesday March 24, the Southern District Court of New York held that PEN American Center could pursue a First Amendment lawsuit brought on behalf of its members under a principle called “associational standing,” which allows organizations to stand in as a plaintiff for their members. The Court’s ruling means that the Authors Guild can also bring cases on behalf of its membership on that same basis. The Authors Guild, with several organizations, submitted an amicus curiae (“friend of the court”) brief supporting PEN America’s standing in this case.
In PEN American Center v. Trump, the president moved to dismiss PEN’s case on the grounds that PEN itself didn’t have “standing,” meaning it didn’t have a personal stake in the president’s alleged violations of the First Amendment when revoking (or threatening to revoke) White House press credentials or national security clearances, among other things. The Southern District Court denied that motion, saying “[w]here, as here, Plaintiff is an entity, standing may be established either (i) directly, based on an injury to the entity itself, i.e., organizational standing, or (ii) in the organization’s representative capacity, based on the injuries to its members, i.e. associational standing.” (Emphasis added.)
PEN America was able to establish associational standing for that claim by showing that (i) its members would have had standing to sue in their own right, (ii) the interests it sought to protect by bringing the lawsuit were connected to the organization’s purpose, and (iii) neither the claim asserted nor the relief requested required individual members to participate in the lawsuit. Since the plaintiff was asking for a judgment declaring that the president’s actions violated the First Amendment or an injunction barring him from “retaliating against, intimidating, or otherwise constraining speech critical of him or his Administration,” the requested relief wasn’t specific to any particular PEN member. The Court said, however, that unless all of the organization’s members would be affected by the challenged activity, the plaintiff must name at least one of its affected members in order to establish associational standing. Here, PEN America named CNN reporter Jim Acosta, whose press credentials had been revoked and who alleged that his speech was chilled by the president’s actions and that his right to receive the speech of his press corps colleagues was impeded because their speech was also chilled. As the Court stated, “[t]hese are classic First Amendment injuries.”
The Court’s analysis of PEN America’s allegations reinforced the impact of the president’s statements and actions on the association’s members, stating “In demonstrating that Defendant would in fact punish reporters who spoke critically, Defendant made his threats of future punishment more credible, and consequently, effective.” This President has repeatedly attempted to quash and censor speech from the media and prior members of his administration, and now the Southern District will be examining those efforts to determine whether they violate the First Amendment.
The court determined that PEN America did not have associational standing with respect to other claims where they could not show that a PEN America member had standing—namely the threat to revoke broadcast licenses, to raise postal rates, or the challenge to the AT&T/Time Warner merger and regulatory threats to internet companies. . While for now the court has only ruled that certain claims can be brought, it will be fascinating to watch how the case progresses on the meritsThe