Brian J. Karem v. DONALD J. TRUMP, IN HIS INDIVIDUAL CAPACITY et al.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 23, 2020 Decided June 5, 2020

No. 19-5255

BRIAN J. KAREM,
APPELLEE

v.

DONALD J. TRUMP, IN HIS INDIVIDUAL CAPACITY AND OFFICIAL
CAPACITY AS PRESIDENT OF THE UNITED STATES AND
STEPHANIE A. GRISHAM, IN HER INDIVIDUAL CAPACITY AND
OFFICIAL CAPACITY AS WHITE HOUSE PRESS SECRETARY,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02514)

James M. Burnham, Attorney, U.S. Department of Justice,
argued the cause for appellants. On the briefs were Ethan P.
Davis and Hashim M. Mooppan, Deputy Assistant Attorneys
General, and Scott McIntosh, Daniel Tenny, Joshua M.
Salzman, and Ashley Cheung, Attorneys.
Theodore J. Boutrous Jr. argued the cause for appellee.
With him on the brief were Anne Champion, Lee R. Crain, and
Thomas H. Dupree Jr.

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Bruce D. Brown, Katie Townsend, and Gabriel Rottman
were on the brief for amici curiae Reporters Committee for
Freedom of the Press, et al. in support of appellee seeking
affirmance.
George A. Lehner was on the brief for amicus curiae The
White House Correspondents’ Association in support of
appellee seeking affirmance.
Before: SRINIVASAN, Chief Judge, and TATEL and
PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: For over fifty years, the White
House Press Secretary has provided journalists on the White
House beat with “hard passes”—special press credentials that
allow on-demand access to the White House complex. Until
last year, the Press Secretary had never revoked or even briefly
suspended a hard pass based on a journalist’s unprofessional
conduct at a White House press event. But following an
incident at President Trump’s 2019 Social Media Summit
involving Appellee Brian Karem, a hard-pass holder, and
Sebastian Gorka, a Summit attendee, the Press Secretary
suspended Karem’s pass for thirty days on the ground that his
conduct violated “professional journalistic norms.” Karem
filed this suit to enjoin enforcement of the suspension, arguing
that it violated the First and Fifth Amendments. The district
court found Karem’s Fifth Amendment due process claim
likely to succeed on the merits and preliminarily enjoined the
suspension. With one minor adjustment to the injunction’s
scope, we now affirm. Karem is likely to succeed on his due
process claim because, on this record, he lacked fair notice that
the White House might punish his purportedly unprofessional
conduct by suspending his hard pass for a month.

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I.
Our court addressed the constitutional protections
associated with hard passes in Sherrill v. Knight, 569 F.2d 124
(D.C. Cir. 1977). That case concerned journalist Richard
Sherrill’s application for a hard pass. At the time, “no written
procedures” and “no published . . . regulations” “pertaining to
the issuance of press passes for the White House” existed. Id.
at 126–27. Instead, the White House Press Office typically
approved a journalist’s hard-pass application if “the applicant
ha[d] obtained a pass for the House and Senate press galleries,
reside[d] in the Washington, D.C. area, . . . need[ed] to report
from the White House on a regular basis,” and passed a “Secret
Service . . . security check.” Id. at 126. Although Sherill
satisfied the first three requirements, the Secret Service denied
his application for “reasons of security.” Id. at 127. Sherrill
filed suit, arguing that the denial violated his First and Fifth
Amendment rights.
We began by emphasizing that Sherrill’s claim “[wa]s not
premised upon the assertion that the White House must open
its doors to the press, conduct press conferences, or operate
press facilities.” Id. at 129. But given that “the White House
has voluntarily decided to establish press facilities for
correspondents who need to report therefrom” and given that
“[t]hese press facilities are perceived as being open to all bona
fide Washington-based journalists,” we held that “the
protection afforded newsgathering under the first
amendment . . . requires that this access not be denied
arbitrarily or for less than compelling reasons.” Id. at 129
(internal citations omitted). Moreover, “the interest of a bona
fide Washington correspondent in obtaining a White House
press pass” is not only “protected by the first amendment” but
also “undoubtedly qualifies as [a] liberty [interest] which may

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not be denied without due process of law under the fifth
amendment.” Id. at 130–131.
With that established, we found the denial of Sherrill’s
application suspect for several reasons. First, nothing
“inform[ed] the public or other potential applicants of the basis
for exclusion of journalists from the White House press
facilities” because the “standard for denial of a press pass ha[d]
never been formally articulated or published.” Id. at 130. Next,
“the phrase ‘reasons of security’ [wa]s unnecessarily vague and
subject to ambiguous interpretation.” Id. And finally, the Secret
Service failed to provide Sherrill “notice . . . of the factual
bases for [his] denial” and “an opportunity to rebut.” Id. at 131.
Concluding that the denial “violate[d] the first and fifth
amendments,” we ordered the Secret Service “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.” Id.
Forty years on, today’s hard-pass system is little changed
from the one described in Sherrill. The White House continues
to issue hard passes that “allow[] access to the White House
complex on short notice, and with minimal delay” to
“[j]ournalists who cover the White House regularly.” Gillman
Decl. ¶¶ 6, 9, Joint Appendix (J.A.) 78–79. To obtain such
passes, journalists must already hold a congressional press
pass, regularly cover the White House, and reside in the D.C.
area. Applicants must also clear a Secret Service background
check—now conducted, in light of Sherill, pursuant to formally
promulgated regulations. See 31 C.F.R. § 409.1.
Although the hard-pass system has existed in similar form
for decades, the record before us indicates that, at least prior to
2018, the White House took a seemingly laissez-faire approach
to journalists’ behavior on the White House grounds. As former

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White House Deputy Chief of Staff for Communications Bill
Shine explained to hard-pass holder Jim Acosta in a 2018 letter,
which we shall have more to say about momentarily, the White
House had never promulgated formal, written guidance
regulating hard-pass holders’ conduct at press conferences and
events. See Letter from Bill Shine, Deputy Chief of Staff for
Communications, to Jim Acosta 1 (Nov. 19, 2018), J.A. 693
(“Acosta Letter”). Instead, the White House relied “on a set of
understood professional norms.” Id. And according to Sam
Donaldson, a hard-pass holder who covered the White House
for over fifty years, “never did any President or their staff
threaten to revoke or suspend” his or any other journalist’s hard
pass “because of . . . alleged misconduct during a press
conference or other press event until President Trump took
office.” Donaldson Decl. ¶ 5, J.A. 62; see also Gillman Decl.
¶ 8, J.A. 79 (declaring that, as a former board member of the
White House Correspondents’ Association, he knew of no pre-
2018 instance in which a press secretary ever “denied,
revoked[,] or suspended” a hard pass because of a journalist’s
purported misconduct). This was so despite reported incidents,
described in the record and unchallenged by the White House,
in which journalists “rudely interrupted” presidents, “berated
White House press secretar[ies],” Joseph Curl, The White
House Press Corps Is Broken Beyond Repair, Wash. Times 1
(June 19, 2018), J.A. 719, and “engaged in . . . shoving
match[es] over positions in the briefing room,” Steven V.
Roberts, Washington Talk: The Presidency; Shouting
Questions at Reagan, N.Y. Times 5 (Oct. 21, 1987), J.A. 717.
That hands-off approach ended in 2018 following an
incident involving Acosta at a presidential press conference.
After asking several questions that elicited no response from
President Trump, Acosta refused to immediately yield the
microphone. Declaring the conduct inappropriate and
unprofessional, the Press Secretary—at the time, Sarah

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Sanders—revoked Acosta’s hard pass that same day. Acosta
filed suit to enjoin enforcement of the suspension, arguing that
the White House failed to provide fair notice that
unprofessional conduct could result in the revocation of a hard
pass. The district court preliminarily enjoined the suspension,
finding Acosta likely to succeed on the merits of his due
process claim. See Hearing Tr. 9–10, Cable News Network, Inc.
v. Trump, No. 18-2610 (D.D.C. Nov. 16, 2018).
Instead of appealing, the White House issued Acosta the
aforementioned letter, which purported “to convert into
rules . . . widely understood practices” and norms governing
“White House press conferences.” Acosta Letter 1, J.A. 693.
The Acosta Letter enumerated several “rules governing future
press conferences” and made clear that “[f]ailure to abide by
any of [these] rules . . . may result in suspension or revocation
of the journalist’s hard pass.” Id. Central to the issue before us,
the Acosta Letter also stated that “a more elaborate set of rules
might be devised, including . . . specific provisions for
journalist conduct in the open (non-press room) areas of the
White House” but expressly declined “to frame such rules in
the hope that professional journalistic norms will suffice to
regulate conduct in those places.” Id. The letter recognized,
however, that that the White House may “be forced to
reconsider this decision” “[i]f unprofessional behavior occurs
in those settings, or if a court should decide that explicit rules
are required to regulate conduct even there.” Id. The White
House circulated the substance of the Acosta Letter to the press
corps in November 2018.
This litigation arises out of an incident that occurred in
those “open (non-press room) areas of the White House.” Id.
Neither side meaningfully disputes the district court’s account
of the incident, captured in multiple videos and summarized
below. See Karem v. Trump, 404 F. Supp. 3d 203 (D.D.C.

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2019); see also Appellee’s Br. 32 (accepting the district court’s
account); Appellants’ Reply Br. 15 (“[T]he facts are largely
undisputed as they were captured in multiple videos.”).
In July 2019, President Trump hosted a Social Media
Summit attended by various internet influencers and
personalities, including former presidential advisor Sebastian
Gorka. At the Summit’s conclusion, the President delivered
prepared remarks in the Rose Garden, which the White House
press corps, Appellee Brian Karem included, covered. Like
other reporters, Karem listened to the remarks from a roped-off
press area that surrounded the rows of chairs where Summit
attendees, including Gorka, sat.
After concluding his remarks, President Trump walked
back towards the White House, at which point Karem shouted
a question at the President, who ignored it and went inside.
Several Summit attendees, however, reacted to Karem’s
question: one shouted, “He talked to us, the real news,” and
another said sarcastically, “Don’t be sad, don’t be sad.” Karem,
404 F. Supp. 3d at 206. Karem smiled, gestured to the
attendees, and declared, “This is a group eager for demonic
possession.” Id. Although several people laughed, Gorka “took
it differently.” Id. He “turned around in his chair and yelled,
‘And you’re a ‘journalist,’ right?’—making air quotes with his
hands.” Id. As Gorka began to stand, Karem shouted in
response, “Hey come on over here and talk to me, brother, or
we can go outside and have a long conversation,” while
motioning backward with his right thumb over his shoulder. Id.
Gorka then walked briskly toward Karem, shouting, “Are you
threatening me now in the White House? In the Rose Garden?
You are threatening me in the Rose Garden?” Id. With the two
men now standing face to face, Karem, his voice lowered,
stated, “I said I’d be happy to talk to you.” Id. Gorka, still
yelling, responded, “You are a punk! You’re not a journalist!

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You’re a punk!” Id. Gorka then walked away, and, as he did,
Karem twice shouted in his direction, “Go home,” and then,
“Hey Gorka, get a job!” Id.
Several minutes after this initial incident, Karem again
encountered Gorka, this time in the White House Palm Room.
Placing his hand on Gorka’s arm, Karem “tried to explain that,
in making his earlier comment, he had only meant that he
wanted to talk.” Id. at 207. “Gorka . . . disagreed,” prompting
Karem to repeat, “I said ‘talk.’” Id. As staffers began ushering
press out of the Palm Room, Gorka repeatedly told Karem,
“You’re done.” Id. Before walking away, Karem tried to shake
Gorka’s hand, but Gorka refused.
Three weeks later, then-Press Secretary Stephanie
Grisham notified Karem by letter that because of his conduct
at the Summit, she had made a preliminary decision to suspend
his hard pass for thirty days. Grisham acknowledged that
although “[t]he White House has issued written rules of
conduct governing questions at press conferences,” it “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.” Letter from Stephanie A. Grisham, White House Press
Secretary, to Brian Karem 1 (Aug. 2, 2019), J.A. 109 (“First
Karem Letter”). She attributed the lack of such “explicit rules”
to the “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. Grisham concluded that Karem’s “disruptive
behavior at the press event in the Rose Garden . . . violated the

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basic standards governing such events and is, in our
preliminary judgment, sufficient factual basis to suspend your
hard pass for 30 days.” Id. at 2, J.A. 110.
Karem responded to Grisham’s letter through counsel. He
disputed her account of events, asked her to reconsider the
decision, and argued that, in light of Sherrill, the suspension
would be unconstitutional.
After meeting with Karem’s counsel to discuss the matter,
Grisham notified Karem by letter of her “final determination to
suspend [his] hard pass for 30 days.” Letter from Stephanie A.
Grisham, White House Press Secretary, to Theodore J.
Boutrous Jr. 1 (Aug. 16, 2019), J.A. 139 (“Second Karem
Letter”). She explained that Karem’s “demonic possession”
comment “was inappropriate and unprofessional” because “it
denigrated the mental state of the gathered audience,” even if,
as Karem claimed, it was meant as “nothing more than a good-
natured exchange.” Id. at 5–6, J.A. 143–44. Grisham also
determined that, whatever Karem’s “subjective intent,” his “go
outside” remark and “gestures . . . created the impression to a
reasonable observer that [he] was suggesting a physical
confrontation.” Id. at 4, 7, J.A. 142, 145. Finally, Grisham
found that Karem aggressively confronted Gorka in the Palm
Room and “ignored . . . repeated directions to leave.” Id. at 5,
J.A. 143.
According to Grisham, Karem’s “unacceptable and
disruptive” conduct “require[d] a response to ensure that it does
not happen again.” Id. at 8, J.A. 146. She considered “a range
of potential responses,” including issuing Karem a written
warning and revoking his hard pass permanently. Id. She
rejected the former as “insufficient given the serious nature of
Mr. Karem’s misconduct and the ineffectiveness that a written
warning would have in deterring similar misconduct by Mr.

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Karem or others in the future” and the latter as “too great a
punishment for the conduct involved here.” Id. at 8–9, J.A.
146–47. Ultimately, Grisham settled on “a temporary
suspension” because “[i]t properly accounts for Mr. Karem’s
stated need for his press pass and it imposes no greater a
restriction than is necessary for an effective sanction.” Id. at 8,
J.A. 146. The suspension took effect immediately.
Within days of receiving the final decision, Karem filed
this suit against President Trump and Grisham (collectively,
“the White House”), seeking to enjoin the suspension, both
preliminarily and permanently, on the grounds that it violated
the First and Fifth Amendments. The district court, applying
the traditional four-part test for preliminary relief, see Winter
v. National Resource Defense Council, Inc., 555 U.S. 7, 20
(2008), and relying on Sherrill, found Karem’s due process
claim likely to succeed on the merits. Specifically, on the
preliminary record before it, the district court concluded that
Karem lacked fair notice that his unprofessional conduct could
be punished by the thirty-day suspension of a hard pass because
no formal, written standards regulated reporters’ conduct at
non-press-conference events. The court rejected the White
House’s contention that the Acosta Letter provided such notice,
explaining that “the letter’s language . . . is ambiguous as to
whether the White House even intended to regulate events
other than formal press conferences.” Karem, 404 F. Supp. 3d
at 213. Moreover, “even if” the Acosta Letter’s “professional
journalistic norms” standard put reporters on notice that
“certain conduct outside of press conferences could be
punishable through revocation of a hard pass,” the district court
determined that “Karem’s behavior was [not] 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.” Id. at 213, 216. As
to Karem’s “demonic possession” comment and his lingering

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in the Palm Room as “White House staff[] . . . tr[ied] to
usher all press out of the room,” the court found such behavior
at least arguably within the compass of the
“freewheeling . . . and aggressive conduct [by White House
reporters that] has long been tolerated without punishment.” Id.
at 207, 214. And as to Karem’s invitation to Gorka to “go
outside and have a long conversation,” the court found that “the
videos make clear that it [too] was meant as an irreverent,
caustic joke.” Id. at 215. The district court concluded that these
“brief” interactions, coming “after the President’s remarks had
concluded” and as the event was breaking up, were not “clearly
sanctionable in the context of the White House press corps.”
Id. (emphasis omitted).
Having found Karem likely to succeed on the merits of his
due process challenge, the district court declined to address the
remaining claims. It then preliminarily enjoined the suspension
because Karem stood to suffer irreparable First Amendment
harm and because the balance of equities and public interest
weighed in favor of an injunction. Id. at 216–18.
By the time the district court’s injunction went into effect,
Karem had already served eighteen days of his thirty-day
suspension. As a practical matter, then, the dispute now before
us concerns only whether the suspension may be reinstated for
twelve additional days (after an interim period in which Karem
has resumed covering the White House). We address Karem’s
likelihood of success on the merits in Part II and the remaining
preliminary injunction factors in Part III.
II.
Karem raises a host of challenges to the suspension of his
hard pass, including that he lacked fair notice of the proscribed
conduct; that the professionalism standard permitted
discriminatory enforcement; that the White House failed to

12

hand over key evidence; that Grisham predetermined the
proceeding’s outcome; that the suspension constituted veiled
content- and viewpoint-based punishment; and, lastly, that
“nothing provided [him] with notice of the severity of the
penalty that might be imposed” for his purportedly
unprofessional conduct. Appellee’s Br. 35 (internal quotation
marks omitted). We begin—and end—with Karem’s final
argument.
“A fundamental principle in our legal system,” the
Supreme Court observed in FCC v. Fox Television Stations,
Inc., 567 U.S. 239 (2012), “is that laws which regulate persons
or entities must give fair notice of conduct that is forbidden or
required.” Id. at 253. Such “[e]lementary notions of fairness,”
the Court explained in BMW of North America, Inc. v. Gore,
517 U.S. 559 (1996), “dictate that a person receive fair notice
not only of the conduct that will subject him to punishment, but
also of the severity of the penalty that [the government] may
impose.” Id. at 574. “This requirement of clarity[,] . . . essential
to the protections provided by the Due Process Clause of the
Fifth Amendment,” Fox Television, 567 U.S. at 253, “is
implicated” whenever the government imposes “civil
penalties,” Gore, 517 U.S. at 574 n.22 (emphasis omitted).
Where such penalties “threaten[] to inhibit the exercise of
constitutionally protected rights[,] . . . a more stringent
vagueness [and fair-notice] test should apply.” Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 498–99 (1982).
That “essential . . . protection[]” of fair notice applies
here. Fox Television, 567 U.S. at 253. As we explained in
Sherrill, “the interest of a bona fide Washington correspondent
in obtaining a White House press pass . . . undoubtedly
qualifies as [a] liberty [interest] which may not be denied
without due process of law under the fifth amendment.” 569

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F.2d at 130–131. And because “any deprivation” of a protected
liberty interest must “be effected pursuant to constitutionally
adequate procedures,” Brandon v. District of Columbia Board
of Parole, 823 F.2d 644, 648 (D.C. Cir. 1987), a duly issued
hard pass may not be suspended without due process.
Accordingly, “[e]lementary notions of fairness” required that
Karem “receive fair notice not only of the conduct that [would]
subject him to punishment, but also of the . . . magnitude of the
sanction that [the White House] might impose.” Gore, 517 U.S.
at 574. Furthermore, because the suspension of a hard pass, like
the denial of a hard pass, “implicate[s]” “important first
amendment rights,” Sherrill, 569 F.2d at 130, we evaluate
Karem’s suspension under a particularly “stringent vagueness
[and fair-notice] test,” Village of Hoffman Estates, 455 U.S. at
498–99.
Applying that test, we think Karem’s due process claim is
likely to succeed because, on this record, nothing put him on
notice of “the magnitude of the sanction”—a month-long loss
of his White House access, an eon in today’s news business—
that the White House “might impose” for his purportedly
unprofessional conduct at the non-press-conference event.
Gore, 517 U.S. at 574. True, the Acosta Letter set forth “rules
governing future press conferences,” but in that very same
letter, the White House expressly declined to adopt “specific
provisions for journalist conduct in the open (non-press room)
areas of the White House” “in the hope that professional
journalistic norms” would “suffice to regulate conduct in those
places.” Acosta Letter 1, J.A. 693 (emphasis added). What’s
more, although the White House made clear that “failure to
abide by” the newly articulated press-conference rules “may
result in suspension or revocation of the journalist’s hard pass,”
it declined to adopt analogous sanctions for unprofessional
conduct at non-press-conference events. Id. Instead, the White
House stated that “[i]f unprofessional behavior occur[red] in

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those settings,” then it would “reconsider this decision”—that
is, the lack of formally articulated standards and sanctions—
not that it would suspend journalists’ hard passes. Id.
Even assuming the Acosta Letter provided Karem some
notice of behavioral expectations “in the open . . . areas of the
White House,” id., it failed to put him on notice of “the
magnitude of the sanction that [the White House] might
impose” for his purported failure to heed any such
expectations, Gore, 517 U.S. at 574. To the extent Karem’s
“irreverent, caustic” attempts at humor (to use the district
court’s language) crossed some line in the White House’s view,
those transgressions were at least arguably similar to previous
journalistic misbehavior that elicited no punishment at all, let
alone a month’s exile. Karem, 404 F. Supp. 3d at 215. In the
context of a White House press corps described as an “unruly
mob,” id. at 214 (internal quotation marks omitted), Karem’s
behavior was not so outrageous as to bring into fair
contemplation the unprecedented sanction visited on him.
The White House’s arguments to the contrary are without
merit.
First, the White House insists that Gore is distinguishable
because the “punitive sanction” at issue there—millions of
dollars in punitive damages—“[wa]s tantamount to a severe
criminal penalty,” 517 U.S. at 585, whereas the suspension of
a hard pass does not rise to that level, see Oral Arg. Rec. 14:18–
48. But the Supreme Court made clear in Gore that the “basic
protection against judgments without notice afforded by the
Due Process Clause . . . is implicated” when the government
imposes “civil penalties.” 517 U.S. at 574 n.22 (internal
quotation marks, citation, and emphasis omitted). And in Fox
Television, the Court held that administrative “findings of
wrongdoing” that “could have an adverse impact on [a

15

regulated entity’s] reputation” counted as “sanctions” that
triggered the “essential . . . protection[]” of “fair notice.” 567
U.S. at 253, 256. If the mere threat of “reputational injury,” id.
at 254, qualifies as a “civil penalt[y],” Gore, 517 U.S. at 574
n.22, then surely so does the suspension of Karem’s hard
pass—a “punishment” aimed at “sanction[ing]” and
“deterring” his conduct, Second Karem Letter 8–9, J.A. 146–
47. Indeed, a thirty-day forced hiatus inflicts considerably more
than a reputational injury on a journalist, for whom sustained
access is essential currency.
Next, the White House contends that “basic standards of
professionalism” should have put Karem on notice that
“breaches of [such] standards . . . can carry consequences
stricter than an admonition not to engage in that behavior
again.” Appellants’ Br. 28. In Sherill, however, we explained
that, at least in the context of hard passes, due process requires
that “explicit and meaningful standard[s]” “be[] formally
articulated or published.” 569 F.2d at 130–31. Accordingly, the
White House may not rely on unarticulated standards of
professionalism or “the adage that some things go without
saying” to justify the thirty-day suspension for the conduct at
issue here. Appellants’ Br. 4.
The White House also argues that it satisfied the dictates
of due process by notifying Karem of the possible sanction in
Grisham’s initial letter. True enough, that letter informed
Karem that the White House planned to suspend his hard pass
for a month. Critically, however, it did so only after the
offending conduct occurred. Although courts routinely
“clarify[] the law and apply[] that clarification to past
behavior,” Qwest Services Corp. v. FCC, 509 F.3d 531, 540
(D.C. Cir. 2007), “the principle of fair warning” requires that
novel standards announced in adjudications “must not be given
retroactive effect . . . where [they are] unexpected and

16

indefensible by reference to the law which had been expressed
prior to the conduct in issue,” Rogers v. Tennessee, 532 U.S.
451, 462 (2001) (internal quotation marks omitted and
emphasis added). That principle applies not only in criminal
cases, but also in the civil context. In Fox Television, for
example, the Supreme Court held that the FCC violated due
process by penalizing broadcasters pursuant to novel standards
announced in adjudications because the broadcasters “lacked
notice at the time of their broadcasts that the material they were
broadcasting could be found actionabl[e] . . . under then-
existing policies.” 567 U.S. at 258.
Here, the “law . . . expressed prior to [Karem’s] conduct”
failed to put him on notice that he could lose his hard pass for
a month. Rogers, 532 U.S. at 462. As explained above, 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.” First Karem Letter 1, J.A.
109. Nor had it ever “revo[ked] or suspen[ded] . . . a hard pass”
for ostensibly unprofessional conduct outside press
conferences, despite evidence that “White House press events
[we]re often freewheeling” affairs, where “aggressive conduct
ha[d] long been tolerated without punishment.” Karem, 404 F.
Supp. 3d. at 214–15 (citing Gillman Decl. ¶ 8, J.A. 79). Thus,
like the broadcasters in Fox Television, Karem “lacked notice
at the time” that his conduct could occasion a thirty-day hard-
pass suspension “under then-existing policies.” 567 U.S. at
258. Far from “clarifying the law and applying that clarification
to past behavior,” Qwest, 509 F.3d at 540, then, the suspension
effectuated an “unpredictable break[] with prior” policy and
practice, Rogers, 532 U.S. at 462.
Finally, raising the specter of the absurd, the White House
argues that it cannot be the case that “the Press Secretary would
be powerless to take action even were a reporter to ‘moon’ the

17

President, shout racial epithets at a foreign dignitary, or
sexually harass another member of the press corps.”
Appellants’ Reply Br. 4. But just as “[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,”
Hoffman Estates, 455 U.S. at 495, the White House cannot
defend the thirty-day suspension here on the ground that some
other, egregious conduct might justify the same sanction. And
even if the White House could impose that sanction for such
egregious conduct consistent with due process, Karem’s
behavior as reflected in the preliminary injunction record fell
below that threshold. Notions of professionalism are, after all,
context-dependent. Cf. Strickland v. Washington, 466 U.S.
668, 693 (1984) (“[A]n act or omission that is unprofessional
in one case may be sound or even brilliant in another.”).
“[W]ithin the context of such an unruly event” as the Summit,
“where jocular insults had been flying from all directions,”
Karem, 404 F. Supp. 3d at 215–16, Karem’s statements were
not so egregious as to justify suspending his hard pass for thirty
days without prior notice.
In any event, the White House can rest assured that
principles of due process do not limit its authority to maintain
order and decorum at White House events by, for example,
ordering the immediate removal of rogue, mooning journalists.
We hold only that to “punish[]” Karem, Second Karem Letter
8, J.A. 146, the White House was required to provide fair notice
of “the magnitude of the sanction that . . . might [be]
impose[d],” Gore, 517 U.S. at 574. As the Acosta Letter
recognizes, the White House may promulgate such sanctions
any time it wishes, but, until then, due process precludes the
White House from “punish[ing]” Karem as it did here. Second
Karem Letter 8, J.A. 146.

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III.
The remaining preliminary injunction factors also counsel
in favor of affirmance.
Karem stands to suffer immediate irreparable harm absent
an injunction. As our court has explained, “a prospective
violation of a constitutional right constitutes irreparable injury
for . . . purposes” of “seeking equitable relief.” Gordon v.
Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (quoting Davis v.
District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998)).
The White House nonetheless insists that no injunction should
issue because Karem stands to suffer only a procedural harm.
Once again, Sherrill forecloses the White House’s argument.
There, we held that the precise harm complained of here—a
violation of Fifth Amendment due process rights—supported
injunctive relief. See 569 F.2d at 131 (ordering the Secret
Service to afford applicants “notice, opportunity to be heard
and a final written statement of the bases of denial” and to
“publish an explicit and meaningful standards governing denial
of White House press passes”).
As for the balance of equities and public interest, factors
which “merge when,” as here, “the Government is the opposing
party,” Nken v. Holder, 556 U.S. 418, 435 (2009), the White
House surely has a legitimate interest in maintaining a degree
of control over media access to the White House complex.
“The Constitution,” however, “does not permit [it] to prioritize
any policy goal over the Due Process Clause,” and
“enforcement of an unconstitutional law is always contrary to
the public interest.” Gordon, 721 F.3d at 653.
IV.
We end with a note about the injunction’s scope. The
district court ordered “the Defendants” to restore Karem’s hard

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pass, meaning the injunction runs to both the Press Secretary
and President Trump. Order Granting Pls.’ Mot. for Prelim.
Inj., J.A. 806. The White House argues that “[t]he President is
not a proper defendant in this case and . . . no temporary
injunctive relief can issue against him.” Appellants’ Br. 22 n.4.
Karem does not contest this point. We therefore affirm the
preliminary injunction but limit its scope to run only to the
Press Secretary.
So ordered.