UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIAN J. KAREM, : : Plaintiff, : Civil Action No.: 19-2514 : v. : Re Document No.: 2 : DONALD J. TRUMP and : STEPHANIE A. GRISHAM, : : Defendants. :
MEMORANDUM OPINION
GRANTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
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
1 Citations to numbered exhibits refer to exhibits to the First Declaration of Theodore J. Boutrous and can be found at ECF Nos. 3–5. Citations to lettered exhibits refer to exhibits to Boutrous’s Second Declaration and can be found at ECF No. 18.
2 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
3 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
4 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.
5 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
6 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
7 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 the preliminary injunction on August 27, 2019, and both matters are now ripe for
consolidated disposition.
III. ANALYSIS
“A party seeking a preliminary injunction must make a ‘clear showing that four factors,
taken together, warrant relief: likely success on the merits, likely irreparable harm in the absence
of preliminary relief, a balance of the equities in its favor, and accord with the public interest.’”
League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting Pursuing
Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). Courts in this circuit used to
weigh these four factors through application of a “sliding-scale” analysis, under which “a strong
showing on one factor could make up for a weaker showing on another.” Id. at 7 (quoting
Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). But the validity of that approach is
now in question following the Supreme Court’s decision in Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7 (2008). See, e.g., Sherley, 644 F.3d at 392–93. The D.C. Circuit has
“suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in
favor of a ‘more demanding burden’ requiring plaintiffs to independently demonstrate both a
likelihood of success on the merits and irreparable harm.” Standing Rock Sioux Tribe v. U.S.
8 Army Corps of Eng’rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016) (citing Sherley, 644 F.3d at 392–93;
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)).
A. Likelihood of Success on the Merits
In his preliminary injunction motion here, Karem argues that he is likely to succeed on
both a Fifth Amendment due process claim and an independent First Amendment free speech
claim. He focuses primarily on the due process issue, though, so the Court begins there.
Karem’s due process claim appears to be grounded in two related doctrines, which he
contends converge or intersect under the facts of this case. The first is the vagueness doctrine,
which instructs that “[a] conviction or punishment fails to comply with due process if the statute
or regulation under which it is obtained ‘fails to provide a person of ordinary intelligence fair
notice of what is prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.’” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012)
(quoting United States v. Williams, 553 U.S. 285, 304 (2008)). The second doctrine is
procedural due process, which prohibits the government from depriving “an individual of a
liberty or property interest without providing appropriate procedural protections”—usually in the
form of notice and some kind of opportunity to contest the decision. E.g., Atherton v. D.C.
Office of Mayor, 567 F.3d 672, 689 (D.C. Cir. 2009).
As the Court will eventually explain, the first doctrine is alone sufficient to show that
Karem is likely to succeed on the merits of his due process claim in this case. But before getting
there, it makes sense to first review the decision in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir.
1977), on which Karem relies heavily in support of both his vagueness and procedural due
process arguments. Sherrill involved a challenge to the same White House press pass system at
issue here: the plaintiff (Sherrill) applied for a hard pass, but his application was denied without
9 notice and without any explanation as to why. Id. at 126. When Sherrill inquired about his
application, the Secret Service refused to provide any additional information or disclose the
standard it used for considering applications, so Sherill sued, alleging that denial of the pass
under those circumstances was unconstitutional. Id. at 127–28.
In ultimately ruling for Sherrill, the D.C. Circuit began its analysis by concluding that
reporters have a First Amendment liberty interest in White House hard passes, which triggers
due process protections. In its opinion, the circuit acknowledged that the public has no general
right of access to the White House, see id. at 129 & n.15 (citing Zemel v. Rusk, 381 U.S. 1, 16–
17 (1965)), and that the President certainly has the “discretion . . . to grant interviews or briefings
with selected journalists” without giving the “opportunity to all,” id. at 129. Indeed, the circuit
stressed that Sherrill’s claim was “not premised upon the assertion that the White House must
open its doors to the press, conduct press conferences, or operate press facilities.” Id. The hard
pass system, however, presented “a situation where the White House ha[d] voluntarily decided to
establish press facilities for correspondents who need to report therefrom.” Id. And the circuit
reasoned that, because “White House press facilities have been made publicly available as a
source of information for newsmen, the protection afforded newsgathering under the first
amendment guarantee of freedom of the press, requires that . . . access not be denied arbitrarily
or for less than compelling reasons.” Id. (internal citations and footnote omitted). “This first
amendment interest,” the circuit said, “undoubtedly qualifies as liberty which may not be denied
without due process of law under the fifth amendment.” Id. at 130–31.
Having concluded “that both first and fifth amendment concerns [were] heavily
implicated,” the court in Sherrill then proceeded to make what appear to be two independent,
alternative holdings. Id. at 128. First, although the circuit accepted that protection of the
10 President was a compelling interest that could permissibly justify the denial of a pass, the court
took issue with the fact that the “standard for denial of a press pass ha[d] never been formally
articulated or published.” Id. at 130. And it reasoned that the phrase that the Secret Service first
put forward during litigation—“reasons for security”—was “unnecessarily vague and subject to
ambiguous interpretation.” Id. As a result, the phrase did “not inform the public or other
potential applicants of the basis for exclusion of journalists from White House press facilities.”
Id. To resolve that problem, the Court ordered the Secret Service to “publish or otherwise make
publicly known the actual standard employed in determining whether an otherwise eligible
journalist [would] obtain a White House press pass.” Id. That published standard did not need
to be a “detailed articulation of narrow and specific standards or [a] precise identification of all
the factors which [could] be taken into account.” Id. It did, however, need to “specify in a
meaningful way the basis upon which the persons [would] be deemed security risks,” so as to
“allow meaningful judicial review of decisions to deny press passes.” Id.
Second, the circuit went on to address the question of “what process [was] due” under the
Fifth Amendment before an application could be formally denied. Id. at 131 (quoting Morrissey
v. Brewer, 408 U.S. 471, 481 (1972)). The court concluded that applicants were entitled to
“notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a
final written statement of the reasons for denial.” Id. at 130. The first two of these procedural
protections provided “a minimum prerequisite for ensuring that the denial” was not “based on
arbitrary or less than compelling reasons.” Id. at 131. And a final written statement was
“necessary in order to assure that the agency ha[d] neither taken additional, undisclosed
information into account, nor responded irrationally to matters put forward by way of rebuttal or
explanation.” Id.
11 As Karem seems to see it, the first of Sherrill’s alternative holdings was grounded in
vagueness and the second in procedural due process. He argues that either holding entitles him
to relief. With respect to vagueness, Karem contends that Grisham’s decision was not based on
any meaningful standard that was articulated or publicly known before July 11. Thus, he claims
to have had no fair notice that his conduct was sanctionable through revocation of his hard pass.
As for procedural due process, Karem acknowledges that he was informed of the factual basis for
the revocation before his pass was formally suspended on August 16, but he argues that such
notice was nonetheless defective. And he contends that he was provided insufficient opportunity
to respond before Grisham issued her final decision.
Defendants, for their part, question whether Sherrill applies at all to this case—arguing
briefly that Sherrill has no relevance outside the context of the Secret Service denying a hard
pass application for security reasons. See Defs.’ Opp’n at 15–16, ECF No. 15. But Defendants
fail to explain why the due process concerns are any different on these facts, involving the same
kind of liberty interest in a hard pass. Plus, another district court in this jurisdiction recently
found that Sherrill did apply to the revocation of a pass by White House personnel. See
Transcript of Mot. Hr’g at 6, Cable News Network, Inc. v. Trump, No. 18 Civ. 2610 (D.D.C.
Nov. 16, 2018), ECF No. 22. Absent a more developed argument from Defendants, this Court
sees no reason to differ from that court’s conclusion.
Defendants then appear to argue that even if Sherrill does apply, it does not provide the
basis for a vagueness or fair notice challenge like the one Karem has brought. See Defs.’ Opp’n
at 16, 23–24; Hrg. Tr. at 43, ECF No. 24. Although the rationale underlying this contention is
not entirely clear, the Court’s best guess is that Defendants view Sherrill’s vagueness language
as non-binding dicta. As the Court noted above, though, Sherill indicates that the circuit made
12 two independent and alternative holdings. The opinion’s conclusion references both the need for
explicit standards and the need for procedural protections. Sherrill, 569 F.2d at 131 (“Having
determined that appellants’ failure to articulate and publish an explicit and meaningful standard
governing denial of White House press passes for security reasons, and to afford procedural
protections to those denied passes, violates the first and fifth amendments, we affirm.”). This
distinction matters because it is well-established that an alternative holding is not dicta but rather
binding precedent. See, e.g., Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 673 (D.C.
Cir. 2013); Hitchcock v. Sec’y, Fla. Dep’t of Corr., 745 F.3d 476, 484 n.3 (11th Cir. 2014)
(citing Massachusetts v. United States, 333 U.S. 611, 623 (1948); Richmond Screw Anchor Co.
v. United States, 275 U.S. 331, 340 (1928); United States v. Title Ins. & Trust Co., 265 U.S. 472,
486 (1924)). The Court is therefore obligated to follow Sherrill in its entirety.
In any event, Sherrill is not the only case on which Karem relies for his fair notice and
vagueness argument—a fact that makes for a good segue into the specifics of Karem’s claim.
Citing FCC v. Fox, 567 U.S. 239, and a number of other cases involving vagueness challenges
and challenges to punitive damages awards, Karem makes what is in the abstract an
uncontroversial point: government acts intended to punish, he says, are subject to exacting
scrutiny to ensure that regulated parties are provided fair notice in a manner consistent with due
process. And pointing to Grisham’s August 16 final decision letter, Karem contends that the
revocation of his hard pass was precisely such an act intended to punish. The letter states that
Karem’s conduct “warrant[ed] a significant sanction,” Ex. 10 at 13, in order to “deter[] . . .
Karem and other members of the press from disrupting White House events,” id. at 8. See also
id. at 8–9, 10 n.44, 12 (further references to “punishment,” “sanction,” and deterrence). Karem
then directs the Court to Grisham’s August 2 preliminary decision letter, which he says concedes
13 that “no set of explicit rules” had existed before the July 11 incident in the Rose Garden. See Ex.
4 at 1 (“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.”). That
August 2 letter instead cites “a widely shared understanding” of appropriate conduct, id., which
Karem says plainly contravenes Sherrill’s instruction that an “explicit and meaningful standard”
regulating hard passes must be “articulate[d] and publish[ed],” 569 F.2d at 131, as well as the
more general principle that a regulatory punishment does not comply with due process if it “fails
to provide a person of ordinary intelligence fair notice of what is prohibited,” Fox, 567 U.S. at
253 (quoting Williams, 553 U.S. at 304).
In response, Defendants do not dispute that Grisham’s aim was punitive, but they argue
that the White House had provided reporters prior notice of what would be acceptable.
Defendants point to a separate letter issued to the press corps in November 2018 in the aftermath
of a different lawsuit involving the revocation of CNN reporter Jim Acosta’s hard pass. See
Press Statement from Sarah Sanders, White House Press Secretary (Nov. 19, 2018). 2 That letter,
which the parties refer to as the “Acosta Letter,” provides a list of three rules to govern reporter
conduct at formal White House press conferences, and it states that “[f]ailure to abide” by those
rules “may result in suspension or revocation of the journalist’s hard pass.” Id. at 1–2.
Defendants concede, however, that those rules did not apply at the July 11 event in the Rose
Garden because that event was not a press conference. Instead, Defendants cite to other
language further down in the letter, which states:
We are mindful that a more elaborate and comprehensive set of rules might need to be devised, including, for example, for
2 This specific document was entered into the record at the August 27 hearing on Karem’s motion, but a nearly identical document was filed as an exhibit to Defendants’ opposition. See Defs.’ Opp’n Ex. 2, ECF No. 15-2.
14 journalist conduct in the open (non-press room) areas inside and outside the White House and for Air Force One. At this time however, we have decided not to frame such rules in the hope that professional journalistic norms will suffice to regulate conduct in those places. If unprofessional behavior occurs in those settings, or if a court should decide that explicit rules are required to regulate conduct even there, we will be forced to reconsider this decision.
The White House’s interaction with the press is, and generally should be, subject to a natural give-and-take. . . . It would be a great loss for all if, instead of relying on the professionalism of White House journalists, we were compelled to devise a lengthy and detailed code of conduct for White House events.
Id. at 2. Such extensive language, Defendants say, should have made Karem and other reporters
aware that they had to behave professionally or risk losing their hard pass.
As an initial matter, the Court notes that Grisham herself did not reference the Acosta
Letter in either her August 2 preliminary decision or August 16 final decision letters, which casts
some doubt on whether she thought that the Acosta Letter provided any meaningful notice. But
setting that aside, there are at least two additional, more fundamental problems with the Acosta
Letter, each of which renders the letter insufficient for due process purposes.
First, the letter’s language, taken in its entirety, is ambiguous as to whether the White
House even intended to regulate events other than formal press conferences. Indeed, by
expressly limiting the scope of the promulgated rules—including the warning about the
“suspension or revocation of . . . hard pass[es]”—to formal press conferences, the White House
arguably suggested that it was not going to police reporter behavior at other events, unless
“unprofessional behavior occur[red]” and it was “forced to reconsider [its] decision” by
publishing explicit rules. Id. Likewise, the Acosta Letter’s use of the word “norms”—which are
typically considered non-binding—could be read to mean that the White House did not, at the
time of the letter, contemplate the imposition of punishments for purportedly unprofessional
15 conduct at events other than press conferences. Cf. BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
574 (1996) (stating, in context of holding punitive damages award excessive under Due Process
Clause, that “[e]lementary notions of fairness enshrined in our constitutional jurisprudence
dictate that a person receive fair notice not only of the conduct that will subject him to
punishment, but also the severity of the penalty that a State may impose”). Is this the only way
to interpret the letter? Maybe not, but the relevant language is, at a minimum, open to
interpretation. And on the issue of whether fair notice was provided, such ambiguity works
against Defendants as the regulating party. See Fox, 567 U.S. 239 at 256–57 (concluding that
agency’s prior statement that particular conduct “might well raise a serious question” under
relevant statutory prohibition did not suffice for fair notice).
Second, even if the Acosta Letter was clear that certain conduct outside of press
conferences could be punishable through revocation of a hard pass, the standard it provides is
“unnecessarily vague and subject to ambiguous interpretation.” Sherrill, 569 F.2d at 130. The
letter refers only to “professional journalistic norms, ” Acosta Letter at 2, which is just as
amorphous as the “reasons for security” language that the D.C. Circuit found insufficient in
Sherrill, 569 F.2d at 130. Though “professionalism” has a well-known common meaning, it is
inherently subjective and context-dependent. Such abstract concepts may at times indicate what
is allowed and disallowed at the furthest margins, but they do not clearly define what is
forbidden or permitted in common practice within those margins. The vagueness doctrine guards
against this danger by ensuring that regulated parties are able to discern, as a practical matter,
“what is required of them so they may act accordingly.” Fox, 567 U.S. at 253.
Defendants’ initial response is that similarly broad standards are often enforced in other
environments, including courtrooms. See, e.g., D.D.C. Local Rules, App’x B, D.C. Bar
16 Voluntary Standards for Civility in Professional Conduct (Lawyers may “not engage in conduct
that offends the dignity and decorum of judicial proceedings, brings disorder or disruption to the
courtroom, or undermines the image of the legal profession”). The rules to which Defendants
cite, however, are tailored to discrete, identifiable, and objectively testable goals—like
preventing the disruption of judicial proceedings. In this sense, the rules that Defendants cite
actually help illustrate a chief problem with the Acosta Letter’s standard: it did not identify with
any degree of precision the scope of its applicability with respect to context. The Acosta Letter
merely referred to “White House events” in “the open (non-press room) areas inside and outside
the White House and . . . Air Force One.” Acosta Letter at 2. But unlike judicial proceedings,
which are consistent in their solemnity, “White House events” appear to vary greatly in
character. Thus, without any contextual guideposts, “professionalism,” standing alone, remains
too murky to provide fair notice here. Cf. United States v. Bronstein, 849 F.3d 1101, 1108–09
(D.C. Cir. 2017) (using context of statute to conclude that statute’s use of “harangue” and
“oration” referred to “public speeches that tend to disrupt the [Supreme] Court’s operations, and
no others”). What is deemed “professional” behavior in the context of a state dinner may be very
different from what is considered “professional” behavior during a performance by James
Brown.
Next, Defendants appear to argue that, even if the meaning of “professionalism” may be
debatable in certain instances, Karem’s behavior was clearly unprofessional in this instance.
This contention appears to be grounded in the notion that “a plaintiff who ‘engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the
conduct of others.’” Kadi v. Geithner, 42 F. Supp. 3d 1, 39 (D.D.C. 2012) (quoting Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)). Again, though,
17 “professionalism” is context-dependent, and Karem has provided some evidence that White
House press events are often freewheeling and that aggressive conduct has long been tolerated
without punishment. That evidence includes a characterization of the White House press corps
as “an unruly mob of reporters.” Ex. C at 5. It includes stories of how journalists have “rudely
interrupted” presidents and “berated” press secretaries, Ex. D at 1; have “breach[ed] etiquette”
by “heckling” during presidential remarks, Ex. I at 1; and have shouted questions at the
conclusion of Rose Garden events, drawing the ire of honored guests in attendance, see Ex. E at
2; Ex. C at 4. The evidence even includes an account of how two reporters once “engaged in a
shoving match over positions in the briefing room.” Ex. C at 5. This kind of behavior may have
occasionally led the White House to speak with reporters’ employers, see Donaldson Decl. ¶ 4,
ECF No. 2-6, but it apparently never resulted in the revocation or suspension of a hard pass, 3 see
id. ¶ 5; Gillman Decl. ¶ 8, ECF No. 2-8. And, as noted above, the Acosta Letter does not
unambiguously signal a departure from that regime. In fact, the letter could reasonably be read
to mean that the pre-existing regime would be maintained for the time being.
Defendants, meanwhile, have submitted no evidence in support of their contention that
Karem’s conduct was clearly proscribed under the existing “professionalism” policy. They
3 It should be noted that this evidence will be by no means conclusive as this case moves forward. But “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); see also Mullins v. City of New York, 626 F.3d 47, 52 (2d Cir. 2010) (“[S]ix of our sister circuits have permitted district courts to rely on hearsay evidence for the limited purpose of determining whether to award a preliminary injunction.”). Also, the Court notes that much of Karem’s evidence on this issue was submitted with his reply brief. The Court finds this evidence to be proper rebuttal evidence because it responds to the argument in Defendants’ opposition that Karem had “actual notice of the basic prohibition against shouting at guests or starting fights in the White House.” Defs.’ Opp’n at 23. And consideration of the evidence in this case is not unjust because Defendants had the opportunity to respond to the new evidence either at the hearing on Karem’s motion, or by seeking leave to file a sur-reply. See Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003).
18 instead rest entirely on Grisham’s August 16 letter and its conclusions 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.” Ex. 10 at 8. But in light of the evidence that Karem has presented the first and third
conclusions do not seem clearly sanctionable in the context of the White House press corps.
And the second conclusion is not supported by the various video recordings of the July 11
incident. No doubt, Karem’s remark that he and Gorka could “go outside and have a long
conversation,” id. at 3, was an allusion to a physical altercation, but the videos make clear that it
was meant as an irreverent, caustic joke and not as a true threat. And the videos belie the notion
that a Secret Service agent had to intervene to prevent a fight: the agent walks right past Karem
as the exchange with Gorka is concluding (before returning upon hearing someone call Karem a
“punk ass”). See Ex. 63 at 0:30–0:36; Ex. 61 at 0:23–0:27. Rather, Karem and Gorka each had
ample opportunity to initiate a physical altercation, and they each made the decision not to. 4
Plus, Karem’s interaction with Gorka in the Rose Garden was brief—about twenty seconds, see
Ex. 63 at 0:09–0:31—and it came after the President’s remarks had concluded. This event was
also one where jocular insults had been flying from all directions. See, e.g., Ex. 60 at 0:10–0:15;
4 Sherrill does not articulate a precise standard of review that courts should apply to hard pass determinations, but it states that access should “not be denied arbitrarily or for less than compelling reasons” and that courts should “be appropriately deferential to the Secret Service’s determination of what justifies the inference that an individual constitutes a potential risk to the physical security of the President or his family.” 569 F.2d at 129–30. Even if the use of the word “arbitrary” meant a particularly deferential standard, the Court does not find the evidence to support the conclusion that a reasonable person would have believed Karem to be genuinely threatening a physical altercation.
19 Ex. 61 at 0:31–0:37; Ex. 70 at 0:05–0:08; McAteer Decl. ¶ 12. There is no indication in the
record that other offenders were reprimanded, or even told to stop.
This is not to say, necessarily, that Karem or any of the other July 11 guests were
constitutionally entitled to engage in this conduct in the Rose Garden; the Court does not reach,
and takes no position, on Karem’s independent First Amendment free speech claim. As the
Court has said, though, this context matters in determining what was deemed acceptable. Taking
into account all of the evidence in the present record, the Court cannot conclude that Karem’s
behavior was clearly proscribed by the Acosta Letter’s standard, or even by any widely
understood standard of “professionalism” or “decorum” within the context of such an unruly
event.
Finally, the Court should briefly take note of Sherrill’s instruction that due process does
not require a “detailed articulation of narrow and specific standards” governing hard passes, or
“a precise identification of all the factors” that could “be taken into account.” 569 F.2d at 130.
The Court’s conclusion here, based on a preliminary record, imposes no such requirement.
Indeed, just as the Sherrill court recognized that there was a meaningful difference between a
“reasons for security” standard and “the principle of whether the applicant presents a potential
source of physical danger to the President and/or his immediate family,” id. at 130, this Court
recognizes that there could be a significant difference between the Acosta Letter’s
“professionalism” standard and the guidelines provided in Grisham’s August decision letters.
Those August letters avoid “narrow and specific standards” and still provide more guidance than
the Acosta Letter: they reference, in addition to professionalism, “obey[ing] instructions from
White House staff,” “taunting,” “provok[ing] confrontation[s],” “disruptive behavior,” and
“decorum and order,” Ex. 4 at 2; see also Ex. 10 at 8.
20 Of course, the Court need not decide whether those guidelines would survive a vagueness
or First Amendment challenge, because they had not been promulgated at the time Karem’s
conduct occurred. And for purposes of the vagueness doctrine, the time the relevant conduct
occurred matters, because due process requires that “regulated parties . . . know what is required
of them so they may act accordingly.” Fox, 567 U.S. at 253. On the present record, the Court
concludes that Karem is likely to succeed on his claim that he was not provided such fair notice
in this case.
B. Irreparable Harm
Having demonstrated a likelihood of success on the merits, Karem must next show that
he is likely to suffer “irreparable harm in the absence of preliminary relief.” League of Women
Voters, 838 F.3d at 6 (quoting Pursuing Am.’s Greatness, 831 F.3d at 505). That harm “must be
unrecoverable; it must be ‘both certain and great; [and] it must be actual and not theoretical.’”
Cal. Ass’n of Private Postsecondary Schs. v. DeVos, 344 F. Supp. 3d 158, 170 (D.D.C. 2018)
(alteration in original) (quoting Wis. Gas. Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669,
674 (D.C. Cir. 1985)). To make the harm showing here, Karem contends that each day that goes
by without his hard pass constitutes a concrete injury to his First Amendment rights. And he
stresses the practical effect of stripping a reporter of a hard pass: without access to the building,
Karem says, he effectively cannot perform the duties of a White House correspondent because he
lacks the ability to observe events firsthand and to ask questions of White House officials. See,
e.g., Gillman Decl. ¶¶ 9–16; Karem Decl. ¶¶ 49–50. In response, Defendants argue that any
injury that Karem has suffered is procedural in nature—the implication seeming to be that such
injury is not “unrecoverable” in a manner that requires immediate restoration of Karem’s hard
pass. See Defs.’ Opp’n at 44; Hrg. Tr. at 40.
21 Defendants’ argument cannot be squared with Sherrill, though, which makes clear that
while the constitutional violation here may have been procedural in nature, the constitutional
injury has substantive components rooted in the First Amendment. See 569 F.2d at 131 (“[T]he
interest of a bona fide Washington correspondent in obtaining a White House press pass is
protected by the first amendment.”). And “[t]he loss of First Amendment ‘freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.’” Pursuing Am.’s
Greatness, 831 F.3d at 511 (internal quotation marks omitted) (quoting Mills v. District of
Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009)); see also Elrod v. Burns, 427 U.S. 347, 373–
74 (1976).
It is not merely an abstract, theoretical injury, either. As Sherrill recognized, “where the
White House has voluntarily decided to establish press facilities” that are “open to all bona fide
Washington-based journalists,” the First Amendment requires “that individual newsmen not be
arbitrarily excluded from sources of information.” 569 F.2d at 129–30. Such exclusion is
precisely what Karem is suffering here. His First Amendment interest depends on his ability to
freely pursue “journalistically productive conversations” with White House officials. Gillman
Decl. ¶ 12. Yet without his hard pass, he lacks the access to pursue those conversations—even
as an eavesdropper. And given that the news is time-sensitive and occurs spontaneously, that
lack of access cannot be remedied retrospectively. See Transcript of Mot. Hr’g at 13, Cable
News Network, Inc., No. 18 Civ. 2610, ECF No. 22 (“Each day that [the reporter] is deprived of
that interest without the process prescribed by the court in Sherrill, he suffers a harm that cannot
be remedied in retrospect.”). Indeed, the only way to remedy the injury is to return the hard pass
and the access that comes with it. Under those circumstances, Karem’s First Amendment injury
undoubtedly constitutes a concrete, unrecoverable harm sufficient to warrant preliminary relief.
22 C. The Balance of the Equities and the Public Interest
Typically, Karem would need to make two additional showings in order to establish that
a preliminary injunction is warranted. The first would be a “balance of the equities in [his]
favor,” League of Women Voters, 838 F.3d at 6 (quoting Pursuing Am.’s Greatness, 831 F.3d at
505), meaning a showing that the requested relief would “not substantially injure other interested
parties,” id. at 12 (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297
(D.C. Cir. 2006)). The second would be a showing that the requested relief would “accord with
the public interest.” Id. at 6 (quoting Pursuing Am.’s Greatness, 831 F.3d at 505). These two
considerations merge into one, however, when the government is the non-moving party. See
Nken v. Holder, 556 U.S. 418, 435 (2009).
Here, Karem contends that the equities and public interest tilt in his favor because his
First Amendment interest outweighs any interest the White House has in enforcing Karem’s
punishment immediately. Defendants, meanwhile, argue that Karem has asked for an unusually
intrusive form of judicial relief: “a decree ordering access” to the White House. Defs.’ Opp’n at
45.
Beginning with Karem’s argument, the Court need not recount the significance of his
constitutional interests, and the Court agrees that those interests outweigh the White House’s
interest in maintaining order. See Transcript of Mot. Hr’g at 13, Cable News Network, Inc., No.
18 Civ. 2610, ECF No. 22 (“[T]he harm to [the reporter] from sustaining an ongoing violation of
his Fifth Amendment due process rights outweighs the government’s interest in orderly,
respectful press conferences.”). That Grisham’s preliminary decision was not made until three
weeks after the July 11 incident, a period of time during which Karem actively participated in
questioning during press conferences, also suggests that the White House can afford to wait to
23 enforce this sanction. Indeed, if Defendants were to ultimately prevail in this case (as unlikely as
that may be), the delayed imposition of Karem’s suspension would, in the Court’s view, achieve
the same deterrent effect.
Having said that, Defendants’ argument with respect to intrusiveness is certainly worth
addressing. The Court understands the White House’s desire to maintain a degree of control
over access and decorum, and at first glance, some might think the temporary suspension of a
single reporter’s press pass to be a relatively modest exercise of such control. But as Sherrill
makes clear, the conferral of White House hard passes is no mere triviality. And the need for
regulatory guidance is at its highest where constitutional rights are implicated. See, e.g., Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (“[P]erhaps the
most important factor affecting the clarity that the Constitution demands of a law is whether it
threatens to inhibit the exercise of constitutionally protected rights.”). In granting Karem relief,
the Court finds only that the White House likely did not provide the requisite guidance in this
specific case—nothing more. And, as noted earlier, the Court does not reach Karem’s
independent free speech claim.
IV. CONCLUSION
For the foregoing reasons, Karem’s motion for a temporary restraining order and
preliminary injunction is granted. Defendants are ordered to restore Karem’s hard pass. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: September 3, 2019 RUDOLPH CONTRERAS United States District Judge