Brian Karem v. Donald Trump

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

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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

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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

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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

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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.