The First Amendment (And A Court) Punch Back

Tonight, we have a post that is longer than usual. But a Judge in Boston issued a First Amendment decision that is incredibly important (and long), and we trace his reasoning and some startling conclusions he committed to paper. I hope you’ll stick with me and read to the end.

It’s not just Jimmy Kimmel, who is back on the air now, although his “suspension“ from late-night focused public attention on the issue. The Trump administration is staging a full-out attack on the First Amendment. Today, a federal judge said so, issuing a comprehensive rebuke to the administration and accusing it of targeting foreign students who engaged in protected pro-Palestinian speech for deportation to “strike fear” into people who wanted to exercise their First Amendment rights to protest.

Senior Judge William G. Young in Boston issued the scathing 161-page opinion in American Association of University Professors v. Rubio. The issue in the case was “whether non-citizens lawfully present here in [the] United States actually have the same free speech rights as the rest of us.” Judge Young held that they do and that the First Amendment does not draw any distinction between the rights possessed in this regard by citizens and non-citizens. He wrote that Trump administration officials chilled free speech and peaceful assembly rights of non-citizens.

Judge Young was appointed by Ronald Reagan in 1985. He graduated from Harvard undergraduate in 1962 and served for two years in the army as a captain before attending Harvard Law School. So it was particularly poignant when he addressed the issue of masked ICE agents, a theme he returned to throughout the opinion, before concluding:

“Can you imagine a masked marine? It is a matter of honor — and honor still matters. To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police. Carrying on in this fashion, ICE brings indelible obloquy to this administration and everyone who works in it.”

The Judge traced early arrests of student protestors, names we are all familiar with. First, there was the arrest of Mahmoud Khalil, when he was stopped along with his pregnant wife, an American citizen. The Judge noted agents did not wear masks on that occasion. Then came Tufts student Rümeysa Öztürk. Again, agents did not wear masks when they approached her. In both cases, agents are depicted on video pulling out badges and identifying themselves. But before whisking Öztürk away, agents masked up. The Judge notes that, “At 3:30 in the video, a voice can be heard asking, ‘Why are you hiding your faces?’”

A Homeland Security Investigations (HSI) official (HSI is the investigative arm of ICE) testified that for agents, wearing a mask “is a personal choice, likely to protect their identity from threats and to facilitate their involvement in other undercover work where secrecy is required.”

The Judge subsequently “rejects this testimony” about legitimate reasons for masking “as disingenuous, squalid and dishonorable,” writing that ICE goes masked for a single reason -- to terrorize Americans into quiescence. Small wonder ICE often seems to need our respected military to guard them as they go about implementing our immigration laws. It should be noted that our troops do not ordinarily wear masks.”

The Judge wrote that “Even crediting this concern, whether intentional or not, images of plain-clothed, masked federal agents –- faceless agents of the federal government –- snatching a non-violent person off the streets of Boston has caused fear in citizens and non-citizens alike. While there are of course occasions when obscuring identities of agents is necessary, law enforcement in the United States has usually been performed in the open.”

After reviewing testimony about the series of arrests, the Judge opined that “The great paradox of this case is that the government witnesses -- to a person -- are decent, credible, dedicated nonpartisan professionals. True patriots who, in order to do their duty, have been weaponized by their highest superiors to reach foregone conclusions for most ignoble ends.”

But he was not so charitable when it came to “the intent of the Secretaries [Rubio and Noem] was more invidious -- to target a few for speaking out and then use the full rigor of the Immigration and Nationality Act (in ways it had never been used before) to have them publicly deported with the goal of tamping down proPalestinian student protests and terrorizing similarly situated non-citizen (and other) pro-Palestinians into silence because their views were unwelcome.” Judge Young wrote that there was no evidence the secretaries acted initially at the direction of the White House, and he declined to leap to that conclusion. However, he writes:

“What is clear, however, is that the President may not have authorized this operation (or even known about it), but once it was in play the President wholeheartedly supported it, making many individual case specific comments (some quite cruel) that demonstrate he has been fully briefed. Such conduct, of course, violates his sacred oath to ‘faithfully execute the Office of President of the United States, and . . . to the best of [his] Ability, preserve, protect and defend the Constitution of the United States,’ U.S. Const. art. II, § 1, cl. 8, by ignoring the Constitution’s command that the President ‘take Care that the Laws be faithfully executed,’ U.S. Const. art. II, § 3. The fact that the President is, for all practical purposes, totally immune from any consequences for this conduct, Trump v. United States, 603 U.S. 593 (2024), does not relieve this Court of its duty to find the facts.”

So, we have clear First Amendment violations at the behest of two cabinet secretaries and a president who approved of them after the fact. What’s the remedy? Judge Young says he will schedule a hearing promptly to make that determination. But he cautions that is no longer a simple task: “In the golden age of our democracy, this opinion might end here. After all, the facts prove that the President himself approves truly scandalous and unconstitutional suppression of free speech on the part of two of his senior cabinet secretaries. One would imagine that the corrective would follow as a matter of course from the appropriate authorities.” But, he says, given what has come before, it’s clear that won’t happen. So there will be continued proceedings in the case. “In light of all the considerations just discussed, it will not do simply to order the Public Officials to cease and desist in the future. The harm here and the deprivation suffered runs far deeper.”

Judges rarely write angry, but Judge Young seems to have here. The decision ends with a remarkable section entitled “JUSTICE IN THE TRUMP ERA.” Having established that there were First Amendment violations, the Judge notes that he is uncertain about the remedy for the violations. That, he writes, is because of “the rapidly changing nature of the Executive Branch under Article II of our Constitution and, while he is properly not now a defendant in these proceedings, the nature of our President himself.”

He concludes that Trump’s speech is frequently “triumphal, transactional, imperative, bellicose, and coarse. It seeks to persuade –- not through marshaling data driven evidence, science, or moral suasion, but through power.” But presidents have First Amendment rights and “there can be no constraint of any sort on the speech of the President of the United States, be that speech statesmanlike, magnanimous, and unifying or ‘foolish’ and ‘knavish.’ As President, he has the absolute and undoubted right to speak.”

But, Judge Young explains, “Where things run off the rails for him is his fixation with ‘retribution.’ ‘I am your retribution,’ he thundered famously while on the campaign trail. Yet government retribution for speech (precisely what has happened here) is directly forbidden by the First Amendment.” He refers to a line of cases that have taken place during the second Trump administration that reject “The President’s palpable misunderstanding that the government simply cannot seek retribution for speech he disdains poses a great threat to Americans’ freedom of speech.” Those cases include ones disallowing Trump’s executive orders targeting law firms, colleges and universities, and the media.

That case law, the Judge writes, is “the major bulwark of our right to free speech” in this era. We will learn what steps he intends to take next in this case when he holds his hearing on the remedy.

As stunning as the opinion itself is, the image the Judge appended to the top of it, above the case “caption” or name, where there is usually nothing, is also remarkable:

It’s clear that this is a judge who does not believe the judiciary is powerless against an encroaching president.

I can’t emphasize enough that everything we’re seeing right now, masked ICE agents on the streets of Chicago, the deployment of the National Guard in Portland, the indictment of the former FBI Director, lawsuits against universities, media outlets, and others, is all about intimidation and control. This case is part and parcel of that. Trump wants Americans to obey him, but he wants them to do it voluntarily, because that’s easiest for him; there is no litigation when people bend the knee. He’s willing to use fear to get his desired results. Knowing that, we cannot give in. We do not have to make this easy for him. Institutions and individuals must push back every time they have that opportunity. Trump is not a king whose bidding we must do.

Today, at Pete Hegseth’s summoning of military leaders, it did not go well when the President spoke. Hegseth himself only rose to the rank of major in the Army National Guard and was outmatched in that room, even as the civilian leader of the military. But the president, who notoriously escaped service in Vietnam by claiming bone spurs and in 1997 referred to avoiding STDs as his own personal Vietnam, embarrassingly tried to jolly up the generals and admirals, joking—although it was hard to tell, he may have been serious—about the risk they would lose rank if they disagreed with him. “If you don’t like what I’m saying, you can leave the room. But, there goes your rank and there goes your future,” Trump told them. Before he left for Quantico, he said, “I’m going to be meeting with generals and with admirals and with leaders, and if I don’t like somebody, I’m going to fire him right on the spot.”

Today, our military leaders personified the ethos the former Secretaries of Defense called for in their pre-January 6 letter, which we reviewed in last night’s post. The military isn’t about Hegseth’s phony warrior ethos, which would exclude many people who have served bravely from the military. The generals and admirals sat mostly stone-faced as Trump delivered an inappropriate partisan speech. They did their duty by being there, but nothing more.

At 12:01 am, the government will shut down. Republicans control the White House, the Senate, and the House, but they were unable to muster the votes to pass even a short-term continuing resolution. That’s a resolution that would have kicked the can down the road on passing a permanent budget, permitting the government to continue operating for a brief period so a budget could be negotiated. But even that modicum of leadership was more than Trump could manage despite his control of the levers of government.

Trump will predictably try to blame Democrats. He has threatened to fire government employees because of the shutdown, surely intending to punish Democrats for failing to cave in. He will claim it is their fault civil servants will lose their jobs. As someone who has lived through multiple shutdowns, I can tell you what Trump is saying isn’t true. Government employees don’t, and don't have to lose their jobs in a shutdown. There will undoubtedly be litigation to protect their rights and prevent Trump from acting. But the threat is ironic, coming from Trump. When he tries to blame Democrats, remember that he was the one who unleashed DOGE on the country and cost thousands of federal employees their jobs.

It’s all about fear and control at this point. Let’s hold onto our rights and continue to exercise them.

We’re in this together,

Joyce