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Karem v. Trump

United States District Court, District of Columbia

September 3, 2019

BRIAN J. KAREM, Plaintiff,
v.
DONALD J. TRUMP and STEPHANIE A. GRISHAM, Defendants.

          MEMORANDUM OPINION GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         For decades, and across many presidential administrations, the White House has made long-term press passes available to any Washington-based journalist who regularly covers the President and can clear a Secret Service background check. In light of that decision to make White House press facilities widely accessible, the D.C. Circuit has held that reporters have a First Amendment liberty interest in possessing a long-term so-called “hard pass”-an interest that, under the Fifth Amendment, may not be deprived without due process. See Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977). This case involves an alleged violation of that due process right. Plaintiff Brian Karem, a White House correspondent for Playboy magazine, claims that White House Press Secretary Stephanie Grisham unlawfully suspended his hard pass as a punishment following his involvement in a brief verbal altercation in the Rose Garden that was captured on video and shared widely on the internet. As the Court will explain below, Karem has, at this early stage of the proceedings, shown that he is likely to succeed on this due process claim, because the present record indicates that Grisham failed to provide fair notice of the fact that a hard pass could be suspended under these circumstances. Meanwhile, Karem has shown that even the temporary suspension of his pass inflicts irreparable harm on his First Amendment rights. The Court therefore grants Karem's motion for a preliminary injunction and orders that his hard pass be restored while this lawsuit is ongoing.

         II. BACKGROUND

         On July 11, 2019, President Trump hosted a number of internet influencers and personalities at the White House grounds at what the administration called a Social Media Summit. At the Summit's conclusion, the attendees were invited to the Rose Garden to watch the President deliver prepared remarks with the Attorney General. Unlike the Summit itself, the remarks were open to the White House press corps, so Brian Karem decided to go. Upon arrival in the Rose Garden, Karem and other members of the press were directed to a roped-off, standing-room-only press area that had been set up around the rows of chairs where the Summit attendees were permitted to sit. Some Summit attendees were already in their seats, and the atmosphere became, in the words of one press member, “unusually tense.” McAteer Decl. ¶ 12, ECF No. 2-9. Certain Summit attendees began photographing the members of the press and calling them “fake news.” Id. Among those attendees participating was former presidential advisor Sebastian Gorka, who at one point stood up to take a wide-frame picture of the press- calling it a “Fake News panorama.” Id.; Ex. 70 at 0:05-0:08.[1]

         Ultimately, the President gave his remarks without incident, and when he finished, he turned to walk back into the White House. Karem called out in an attempt to ask the President a question, but the President ignored it and went inside. Ex. 60 at 0:00-0:09. Karem's question did, however, draw a reaction from some of the Summit attendees. One shouted, “He talked to us, the real news.” Id. at 0:10-0:12. Another said sarcastically, “Don't be sad, don't be sad.” Id. at 0:13-0:15. Karem responded by smiling and making what was apparently a joke. Gesturing toward the seated Summit attendees, he said, “This is a group eager for demonic possession, ” before saluting and turning away. Ex. 61 at 0:01-0:06.

         Karem's statement drew laughter from several of the attendees, but Gorka took it differently. Seated a number of rows in front of Karem's position in the press area, Gorka turned around in his chair and yelled, “And you're a ‘journalist,' right?”-making air quotes with his hands. Ex. 60 at 0:21-0:25. With the event having concluded, Gorka and other seated attendees began to stand, and as they did so, Karem said, “Hey come on over here and talk to me, brother, or we can go outside and have a long conversation.” Ex. 61 at 0:10-0:14. Karem simultaneously motioned backward with his right thumb over his shoulder and raised his eyebrows. Id.

         By the time Karem had finished his sentence, Gorka was walking briskly toward him across the Rose Garden-shouting, “Are you threatening me now in the White House? In the Rose Garden? You are threatening me in the Rose Garden?” Ex. 60 at 0:29-0:36. As Gorka approached, Karem took a few steps forward himself, but remained within the roped-off press area. Ex. 61 at 0:16-0:21. Karem, his voice now slightly quieter, explained “I said I'd be happy to talk to you.” Id. at 0:17-0:19. Gorka, still yelling, responded, “You are a punk! You're not a journalist! You're a punk!” Id. at 0:20-0:24. Gorka then turned and walked away, at which time some of the Summit attendees began chanting, “Gorka! Gorka! Gorka!” Ex. 62 at 0:01- 0:08. While Gorka walked away and the crowd's chant was ongoing, Karem raised the volume of his voice again, and twice said to Gorka, “Go home, ” before shouting “Hey Gorka, get a job!” Ex. 61 at 0:23-0:29.

         Moments later, another one of the Summit attendees, who was filming the scene on his phone, said loudly to Karem, “Hey, just for the record he'd kick your punk ass” (“he” meaning Gorka). Id. at 0:31-0:37; Ex. 62 at 0:09-0:11. From others in the crowd, this remark prompted a mixture of laughs and groans-and even an exasperated “Oh my God.” Ex. 62 at 0:11-0:14. Karem, meanwhile, responded to the remark by taking a couple of steps to his right and saying, “And that's the measure of everything, isn't it?” Ex. 60 at 0:48-0:53. By this time, Karem was (perhaps inadvertently) standing on the other side of the press-area's demarcating rope, which had at some point fallen to the ground. Id. A Secret Service agent quickly noticed and approached Karem, who stepped back into the press area. Id. at 0:54-1:01. Karem and the agent then spoke for a few seconds, but the substance of their conversation is not audible in the various video recordings. E.g., id. at 0:54-1:01.

         A few minutes later, after leaving the Rose Garden, Karem saw Gorka again-this time in the White House's Palm Room. Karem walked over, put his left hand on Gorka's right arm, and tried to explain that, in making his earlier comment, he had only meant that he wanted to talk. See Ex. 63 at 2:59-3:02. Gorka, however, disagreed, which prompted Karem to raise his right index finger and repeat, “I said ‘talk.'” Id. at 3:04-3:05. Gorka, who noticed that a White House staffer was trying to usher all press out of the room, responded by repeatedly saying to Karem, “You're done.” Id. at 3:02-3:12. Recognizing that he had to leave, Karem tried to shake hands, but Gorka refused, so Karem walked away. Id. at 3:12-3:26.

         Karem subsequently did not hear anything from the White House about the incident for three weeks, and during that time period, he continued to attend press events on White House grounds. See Karem Decl. ¶¶ 37-38, ECF No. 2-5. On Friday, August 2, though, he received a letter from White House Press Secretary Stephanie Grisham informing him that she had “made a preliminary decision to suspend [his] hard pass for 30 days due to [his] conduct at the press event in the Rose Garden on July 11, 2019.” Ex. 4 at 1. That letter acknowledged that the White House “had not previously thought that a set of explicit rules was necessary to govern behavior by members of the press at White House press events, ” but Grisham reasoned that there “had previously been a widely shared understanding that (1) members of the press, at all times at White House press events, must act professionally, maintain decorum and order, and obey instructions from White House staff, and (2) disruptive behavior that interferes with the conduct of a press event or is otherwise a breach of professional decorum-including but not limited to taunting other members of the press, White House officials, or guests in an effort to provoke a confrontation-is prohibited.” Id.

         Karem, Grisham's letter explained, had “failed to abide by these basic norms ensuring decorum and order” by making “an apparent attempt to escalate . . . verbal taunts to a physical confrontation.” Id. That kind of “disruptive behavior violated the basic standards governing such events and” was, in Grisham's “preliminary judgment, sufficient factual basis to suspend [Karem's] hard pass for 30 days.” Id. at 2. The letter gave Karem a deadline of 5:00 pm on Monday, August 5-one business day-to respond in writing and with any additional material he wished Grisham to consider. Id.

         In a letter delivered that following Monday, Karem disputed Grisham's factual characterization of the July 11 incident, argued that revoking his pass would be unconstitutional, and asked Grisham to reconsider her decision. See Ex. 5. Karem's counsel also requested the chance to meet with Grisham “to discuss these issues prior to [her] making a final decision.” Id. at 1 n.1. Grisham granted that request and met with Karem's lawyers at the White House on Thursday, August 8. See Karem Decl. ¶ 45. Though Karem chose not to attend the meeting, Grisham allowed him to submit a supplemental, written version of his story the following day, August 9. See Exs. 8, 9.

         One week later, on Friday, August 16, Grisham sent Karem a thirteen-page letter confirming that she had “now made a final determination to suspend [his] hard pass for 30 days.” Ex. 10 at 1. The letter began by laying out the process that Grisham had followed in making her decision and the evidence she had considered. That evidence was limited to: (1) seven publicly available online videos, “which show[ed] multiple angles of the incidents”; (2) “[t]he observations of the U.S. Secret Service agent” who had spoken to Karem in the Rose Garden; (3) Karem's initial August 5 response; (4) the August 8 in-person meeting with Karem's lawyers; and (5) Karem's supplemental response provided on August 9. Id. at 3. Grisham confirmed that she “ha[d] not conducted, and ha[d] not relied on, interviews with any other witnesses.” Id.

         The letter then provided a detailed recitation of Grisham's factual findings, beginning with the conclusion of the President's remarks in the Rose Garden and ending with Karem and Gorka's discussion in the Palm Room. Id. at 3-8. In recounting the events, Grisham found that Karem's “demonic possession” comment could not “credibly be understood as mere light-hearted comedy” because it “denigrated the mental state of the gathered audience.” Id. at 5-6. Regardless of subjective intent, the comment was therefore “inappropriate and unprofessional.” Id. at 6. Grisham also rejected Karem's contention that his “invitation . . . to ‘go outside and have a long conversation'” was “an effort to de-escalate by making a genuine invitation for a conversation in another forum.” Id. at 6. Rather, according to Grisham, Karem's body language and the contemporaneous reactions of those around him indicated that the comment was “an invitation to a physical altercation.” Id. Finally, Grisham credited Karem's assertion that he approached Gorka in the Palm Room in order to make peace with him. See Id. at 5. But she stressed that “Karem ignored a White House staffer's repeated directions to leave, ” and she explained that, when “Gorka made clear that he would not shake . . . Karem's hand, ” Karem “turned this exchange into a confrontation as well” by “wagg[ing] his finger in . . . Gorka's face.” Id.

         In light of these findings, Grisham reached the conclusion that “Karem's actions, as viewed by a reasonable observer, (1) insulted invited guests of the White House, (2) threatened to escalate a verbal altercation into a physical one to the point that the Secret Service deemed it prudent to intervene, and (3) re-engaged with . . . Gorka in what quickly became a confrontational manner while repeatedly disobeying a White House staffer's instruction to leave.” Id. at 8. Citing as authority only her preliminary decision letter sent to Karem on August 2, Grisham deemed Karem's conduct, when “taken as a whole, ” violative of the “widely-shared understanding that at all times at White House press events, members of the press must act professionally, maintain decorum and order, and obey instructions from White House staff.” Id.

         As a result, Karem's behavior “require[d] a response to ensure that it [did] not happen again.” Id. Grisham explained that she had “carefully considered a range of potential responses . . ., including permanently revoking [Karem's] hard pass, temporarily suspending his hard pass, providing a written warning, and taking no action.” Id. But permanent revocation, she decided, “would be too great a punishment for the conduct involved, ” while taking no action or issuing a warning “would be insufficient to deter . . . Karem and other members of the press from disrupting White House events.” Id. Thus, a temporary thirty-day suspension was “an appropriate response, ” as it “impose[d] no greater a restriction than [was] necessary for an effective sanction.” Id.

         Grisham's decision went into effect immediately on August 16, so Karem brought this lawsuit against the President and Grisham the following Tuesday, August 20. The same day, he filed the present motion for temporary restraining order (“TRO”) and preliminary injunction, seeking the immediate restoration of his hard pass. The Court held a hearing on both the TRO and ...


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