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In the United States District Court for the District of Columbia IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIAN KAREM, Plaintiff, v. DONALD J. TRUMP, in his individual capacity and official capacity as President of the United States; and STEPHANIE GRISHAM, in her individual capacity and official capacity as White House Press Secretary, Defendants. Case No. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTIONS FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 BACKGROUND ............................................................................................................................ 7 ARGUMENT ................................................................................................................................ 20 I. Mr. Karem Is Likely To Succeed On The Merits. ............................................................ 21 A. The Suspension of Mr. Karem’s Hard Pass Was Unlawful Because It Was Not Based On Any Previously Articulated and Published Explicit Standards. ............ 22 B. Ms. Grisham’s Newly-Minted, Retrospective, Generalized “Decorum And Professionalism” Standard Is Unconstitutionally Vague And Cannot Be Used As The Basis For Punishment. ...................................................................................... 25 C. Mr. Karem Was Not Afforded Procedural Due Process. ........................................ 30 D. The Suspension of Mr. Karem’s Hard Pass Violates the First Amendment. .......... 32 II. Mr. Karem Will Be Irreparably Injured Absent Injunctive Relief. ................................. 37 III. The Balance of Equities And The Public Interest Strongly Favor Injunctive Relief. ............................................................................................................................ 39 CONCLUSION ............................................................................................................................. 41 ii TABLE OF AUTHORITIES Cases Am. Broad. Cos. v. Cuomo, 570 F.2d 1080 (2d Cir. 1977).......................................................................................32, 38, 39 Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) ...................................................................................................................23 Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986) ........................................................................................................33 Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) .................................................................................................................26 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ...........................................................................................................24, 25 Boos v. Barry, 485 U.S. 312 (1988) ...........................................................................................................27, 35 Borreca v. Fasi, 369 F. Supp. 906 (D. Haw. 1974) ............................................................................................34 Brandenburg v. Ohio, 395 U.S. 444 (1969) .................................................................................................................36 Branzburg v. Hayes, 408 U.S. 665 (1972) .................................................................................................................32 *Cable News Network, Inc. v. Am. Broad. Cos., 518 F. Supp. 1238 (N.D. Ga. 1981) .............................................................................33, 38, 41 *Cable News Network, Inc. v. Trump, No. 18-cv-2610 (D.D.C.) ................................................................................................. passim Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) .................................................................................................................30 Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) .................................................................................................22 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) .................................................................................................................35 Cinderella Career & Finishing Sch., Inc. v. FTC, 425 F.2d 583 (D.C. Cir. 1970) .................................................................................................30 iii Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) .................................................................................................................34 City of Chicago v. Morales, 527 U.S. 41 (1999) .............................................................................................................25, 29 City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) ...........................................................................................................26, 29 Connally v. Gen. Constr. Co., 269 U.S. 385 (1926) .................................................................................................................27 Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530 (1980) .................................................................................................................34 Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988) .................................................................................................23 DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187 (7th Cir. 1995) .....................................................................................................38 E-Bru, Inc. v. Graves, 566 F. Supp. 1476 (D.N.J. 1983) .............................................................................................36 Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion) ..............................................................................6, 37 *FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012) ......................................................................................................... passim Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .................................................................................................................24 *Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ...........................................................................................................25, 27 Grayned v. City of Rockford, 408 U.S. 104 (1972) ...........................................................................................................26, 27 Hartman v. Moore, 547 U.S. 250 (2006) .................................................................................................................33 Hassay v. Mayor, 955 F. Supp. 2d 505 (D. Md. 2013) .........................................................................................40 Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) ...............................................................................................37 iv Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67 (D.D.C. 2001) ...........................................................................................20 N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 675 F. Supp. 2d 411 (S.D.N.Y. 2009) ......................................................................................32 N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ...........................................................................................................25, 28 Nat’l Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974) .................................................................................................23 Nwanguma v. Trump, 903 F.3d 604 (6th Cir. 2018) ...................................................................................................35 Police Dep’t of City of Chi. v. Mosley, 408 U.S. 92 (1972) ...................................................................................................................34 Pursuing Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d 500 (D.C. Cir. 2016) .......................................................................................6, 20, 37 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .................................................................................................................36 Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296 (D.C. Cir. 2014) .................................................................................................32 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) .............................................................................................................34 Regan v. Time, Inc., 468 U.S. 641 (1984) .................................................................................................................34 Reno v. ACLU, 521 U.S. 844 (1997) .................................................................................................................26 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) .................................................................................................................34 *Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) ......................................................................................... passim Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) ...................................................................................................................26
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