Stand Up for the First Amendment

Judges must hold the line against Mad King Donald

No protection against authoritarian government is more important than the First Amendment. In the United States you can speak and associate with whomever you want, no matter how unpopular you, your associates, or your message might be. So when Donald Trump wields the heavy hand of government to seek retribution against his perceived enemies or those whom he simply dislikes, we should all be concerned.

Let’s consider the following hypothetical scenario:

A green card holder from Ukraine legally present in the United States engages in campus protests against Donald Trump’s sellout of Ukraine to the Russian dictator. Never arrested or charged with a crime, he is snatched up by ICE (Immigration and Customs Enforcement), spirited away to detention in another state, Louisiana (without notice to his pregnant wife or counsel), and threatened with deportation.

Here’s another version:

A green card holder from Canada legally present in the U.S. protests Trump’s mindbogglingly dumb tariff war. Never arrested or charged, he too is snatched up, sent to another state and threatened with deportation.

Outrageous, un-American, right? These cases are legally indistinguishable from the case of Mahmoud Khalil, who led anti-Israel protests at Columbia University, some of which went so far as to lionize Hamas. He was never arrested or charged. And yet because he advocated a position noxious to many Americans, his detention has been lauded by a purported civil rights group, the American Anti-Defamation League, and members of Congress have either cheered the action or were slow to object.

The ADL should know better. Surely, someone over there is familiar with Martin Niemöller’s famous poem:

First, they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

We still have a constitution, and due process still applies to those present in the country, including green card holders. Hence, an actual civil rights organization, the ACLU, put out a blistering statement in response to Khalil’s detention. “This arrest is unprecedented, illegal, and un-American. The federal government is claiming the authority to deport people with deep ties to the U.S. and revoke their green cards for advocating positions that the government opposes,” the ACLU said in a written statement. “To be clear: The First Amendment protects everyone in the U.S. The government’s actions are obviously intended to intimidate and chill speech on one side of a public debate.”

A protest against the detention of Mahmoud Khalil in Thomas Paine Park, NYC

The ACLU then signed onto a lawsuit brought by private attorneys. U.S. District Court Judge Jesse M. Furman in the Southern District of New York promptly issued an order to prevent the deportation from proceeding, and on Wednesday, at a hearing to order Khalil’s return to New York, the judge asked for a briefing to determine whether he must be returned to New York.

Trump’s blatant attempt to stoke the culture wars and to intimidate protestors in violation of the right to free speech cannot be allowed to stand. The First Amendment is essential to protect the freedom to criticize our government or its policies, especially when criticisms are unpopular. Popular speech needs little help, but when many consider the speaker or the message odious, the First Amendment becomes a bulwark against autocratic rule. If we countenance one protester’s deportation, any protester, whether a citizen or not, is at risk.

The First Amendment is also at issue in Trump’s efforts to exact revenge against law firms he dislikes. After targeting Covington & Burlington for its representation of Jack Smith, he went after Perkins & Coie for representing Hillary Clinton. But the latter was not in the mood to lay low or accept an attack on it or its clients.

Instead, Perkins & Coie hired a high-powered establishment law firm, Williams & Connolly, to sue the Justice Department, FCC, OMB, Office of Personnel Management, the Office of the Director of National Intelligence, and members of the Trump regime including Attorney General Pam Bondi, OMB director Russell Vought and DNI Tulis Gabbard. The suit challenged the executive order terminating contracts with the government, revoking all the firm attorneys’ security clearances, and barring its lawyers from federal buildings.

The suit alleges:

Because the Order in effect adjudicates and punishes alleged misconduct by Perkins Coie, it is an unconstitutional violation of the separation of powers. Because it does so without notice and an opportunity to be heard, and because it punishes the entire firm for the purported misconduct of a handful of lawyers who are not employees of the firm, it is an unconstitutional violation of procedural due process and of the substantive due process right to practice one’s professional livelihood. Because the Order singles out Perkins Coie, it denies the firm the equal protection of the laws guaranteed by the due process clause of the Fifth Amendment. Because the Order punishes the firm for the clients with which it has been associated and the legal positions it has taken on matters of election law, the Order constitutes retaliatory viewpoint discrimination and, therefore, violates the First Amendment rights of free expression and association, and right to petition the government for redress. Because the Order compels disclosure of confidential information revealing the firm’s relationships with its clients, it violates the First Amendment. Because the Order retaliates against Perkins Coie for its diversity-related speech, it violates the First Amendment. Because the Order is vague in proscribing what is prohibited “diversity, equity and inclusion,” it violates the Due Process Clause of the Fifth Amendment. Because the Order works to brand Perkins Coie as persona non grata and bar it from federal buildings, deny it the ability to communicate with federal employees, and terminate the government contracts of its clients, the Order violates the right to counsel afforded by the Fifth and Sixth Amendments.

U.S. District Judge Beryl Howell on Wednesday granted Perkins’s request for a temporary restraining order enjoining key sections of the executive order. She noted, “This kind of a clear retaliation chills First Amendment.” Admonishing the government for “viewpoint discrimination” and lack of due process, she added, “I am sure that many in the legal profession are watching in horror at what Perkins Coie is going through here.”

In short, Judge Howell had no problem recognizing that such a blatant attack on the First, Fifth, and Sixth Amendments violates the fundamental rights that all Americans are entitled to enjoy. Frankly, an army of law firms should have risen up to defend Perkins. (Kudos to the fourteen Williams and Connolly lawyers who all signed their names to the civil complaint, demonstrating they will not be intimidated.)

Trump believes he is unconstrained by the Constitution or other laws. It is up to Americans, lawyers and judges to prove him wrong. Nothing less than the preservation of the American experiment in democracy is at issue.