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“No American President has ever before issued executive orders like the one at issue in this lawsuit . . . The instant case presents an unprecedented attack on . . . foundational principles. . . . Here, deciding what process was due to plaintiff is unnecessary, because no process was provided.” — Perkins Coie LLP v. Department of Justice (Dist. Ct., D.C., May 2)
“[T]he Court found that Ms. Rumeysa Ozturk has demonstrated a substantial claim of a violation of due process.” — Ozturk v. Hyde (Dist. Ct., VT, May 16)
“[T]his directive has a breathtaking sweep . . .” — Jenner & Block v. U.S. Dept. of Justice (Dist. Ct., D.C., May 23)
Maxim: #1: Vagueness and due process cannot coexist, at least not in any system of constitutional justice worthy of the name.
Maxim #2: The broader the law’s sweep, the greater the likelihood that it was designed to be arbitrarily punitive.
It is undeniable: Many of Donald Trump’s executive orders run wildly afoul of basic tenets of fairness. Time and again, he has ordered his subordinates to enforce orders that are shockingly vague and disturbingly broad. Both in their conception and execution, such orders patently violate the commands of the First, Fifth, and Fourteenth Amendments. And yet, the public and the courts are asked to countenance such abridgments of law in the name of unfettered executive prerogative.
Clarity and precision in lawmaking are fundamental to any system of justice. That call for clarity, which traces back at least to Roman law, finds expression in Montesquieu’s “Spirit of Laws” and William Blackstone’s “Commentaries on the Laws of England.” Laws must be “plainly and perspicuously penned,” is how Blackstone tagged it.
In “Federalist No. 62,” James Madison condemned those laws that were “incoherent that they cannot be understood.” The idea is rooted in basic fairness, in due process of law. Such a process is especially important in the First Amendment context.
Whether it be in executive orders directed at DEI practices, law firms, universities, libraries, or immigrants, among others, the basic problem of vagueness is the constitutional cancer present in all of them.
As Justice Thurgood Marshall made clear in 1972’s Grayned v. City of Rockford, vagueness offends fairness because (i) it provides no meaningful warning to ordinary persons as to “what is prohibited,” (ii) it provides no “explicit standards” to law enforcement officials, judges, and juries necessary to avoid “arbitrary and discriminatory application,” and (iii) vague laws chill protected speech insofar as the “boundaries of the forbidden areas [are not] clearly marked.”
Justice William Brennan explained the First Amendment importance of that principle in 1963’s NAACP v. Button: “Standards of permissible . . . vagueness are strict in the area of free expression. . . [I]n the area of First Amendment freedoms, the existence of a [vague mandate is] susceptible of sweeping and improper application.”
In the unconstitutional process, lawyers, scientists, librarians, universities, law firms and others are chilled into silence — and that is precisely the point.
The evils of vagueness, among other constitutional wrongs, were thoughtfully identified by federal district court Judge Adam B. Abelson in the recent Maryland District Court case National Association of Diversity Officers in Higher Education v. Trump. In relevant part, Judge Abelson began:
This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims . . . The Challenged Provisions forbid government contractors and grantees from engaging in “equity-related” work and from “promoting DEI” in ways the administration may consider to violate antidiscrimination laws; they demand that the “private sector” “end . . . DEI” and threaten “strategic enforcement” to effectuate the “end[ing]” of “DEI”; and they threaten contractors and grantees with enforcement actions with the explicit purpose of “deter[ring]” such “programs or principles.”
Thereafter, he emphasized that the Court was
…deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.
To elucidate that point, he added:
Historically, the metaphor used to describe the effect of laws that restrict speech is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate — to silence selected viewpoints, selected discourse — on matters of public concern. They forbid government contractors and grantees from engaging in discourse — including speech such as teaching, conferences, writing, speaking, etc. — if that discourse is “related” to “equity. ” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. See J21 Order § 4(b) (directing agencies to “encourage the private sector to end . . . DEI”). “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles” — i.e. ideas, concepts, and values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.
Such are but some of the evils rooted in many of Trump’s executive orders. Those affronts to due process and First Amendment principles are so obvious as to render their design intentional (see “Trump’s ‘So what?’ stratagem,” FAN 470).
Trump’s Justice Department defends such lawlessness by procedural obfuscation coupled with political rhetoric and claims of unrestrained executive prerogative. When that fails they take cover by being evasive, as revealed in oral arguments in the Second Circuit case of Ozturk v. Hyde:
The appeals court judges pushed . . . [Department of Justice attorney Drew] Ensign on whether or not the Trump administration believed that both students’ speech was lawful speech.
“We have not taken a position on that,” Ensign told the panel of three judges, saying concerns over where the students’ cases should be heard were more important.
“Help my thinking along,” Judge Barrington D. Parker then said. “Take a position.”
“Your honor, I don’t have authority to take a position on that right now,” Ensign replied.
In the unconstitutional process, lawyers, scientists, librarians, universities, law firms and others are chilled into silence — and that is precisely the point.
Consider as well this from an article in The New York Times by Stephanie Saul:
The Trump administration is set to cancel the federal government’s remaining federal contracts with Harvard University — worth an estimated $100 million, according to a letter that is being sent to federal agencies on Tuesday. The May 27 letter [from the U.S. General Services Administration] also instructs agencies to “find alternative vendors” for future services.
The additional planned cuts, outlined in a draft of the letter obtained by The New York Times, represented what an administration official called a complete severance of the government’s longstanding business relationship with Harvard.
The letter is the latest example of the Trump administration’s determination to bring Harvard — arguably the country’s most elite and culturally dominant university — to its knees, by undermining its financial health and global influence. Since last month, the administration has frozen about $3.2 billion in grants and contracts with Harvard. And it has tried to halt the university’s ability to enroll international students.
Related
A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.
This episode features a conversation with Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School and former administrator of the White House Office of Information and Regulatory Affairs. His recent working paper, ‘Our Money or Your Life!’ Higher Education and the First Amendment,’ explores the First Amendment constraints on federal funding to American universities.
In the last few weeks, the Trump administration has made several announcements that it is withholding a significant amount of federal funds from specific universities, notably Columbia University and Harvard University, and that those funds will not be released until those universities comply with a set of demands. Harvard received a letter on April 11 demanding changes in Harvard’s governance, faculty hiring practices, student admissions practices, viewpoint diversity among the faculty, and student disciplinary policies, among other things. On May 5, the Secretary of Education sent a letter to Harvard informing the university that the federal government will award it no grants for scholarly research in the future. Reportedly, there is more than $2 billion dollars at stake.
On the podcast we talk through what the Trump administration is doing, what the consequences are for Harvard and other affected universities, and what constitutional issues are raised by the administration’s actions in denying Harvard access to federal research funds. In the process, we get a short course on First Amendment doctrine relating to viewpoint discrimination and unconstitutional conditions.
Trump’s lackey: FCC Chairman Brendan Carr
“He has . . . abandoned the FCC’s posture as an independent regulator in favor of an openly personal embrace of Trump.”
Four months into his tenure as head of America’s top communications regulator, Brendan Carr appears to be running a Trumpian playbook to transform a long-independent agency.
Immediately after being promoted by President Donald Trump to chair the Federal Communications Commission, on Jan. 20, Carr launched investigations into top media companies, including NPR, PBS and Comcast.
Related
Latest update of Zick’s Executive Orders repository
SCOTUS denies review in middle school ‘two genders’ shirt case
This past Monday the Supreme Court denied review (7-2) in L.M. v. Town of Middleborough. The issue raised in that case was whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
Summary of facts: “In this case, L.M.’s [middle] school prohibited him from wearing a non-obscene, non-vulgar shirt stating, ‘There Are Only Two Genders,’ because the message ‘would cause students in the LGBTQ+ community to feel unsafe.’. The school even banned him from wearing the same shirt on which he covered the words ‘Only Two’ with a piece of tape on which he wrote “CENSORED” so that the message read, ‘There Are [CENSORED] Genders.’”
The petition had been distributed for conference twelve times.
Justice Clarence Thomas wrote a dissent. Justice Samuel Alito also wrote a separate dissent, which in part read:
This case presents an issue of great importance for our Nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive. In this case, a middle school permitted and indeed encouraged student expression endorsing the view that there are many genders. But when L. M., a seventh grader, wore a t-shirt that said “There Are Only Two Genders,” he was barred from attending class. And when he protested this censorship by blocking out the words “Only Two” and substituting “CENSORED,” the school prohibited that shirt as well.
The First Circuit held that the school did not violate L. M.’s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969).
FBI reopens probe into Dobbs Supreme Court leak
The FBI will launch new probes into the 2023 discovery of cocaine at the White House during President Joe Biden’s term and the 2022 leak of the Supreme Court’s draft opinion overturning Roe v. Wade, a top official announced on Monday. Dan Bongino, a rightwing podcaster-turned-FBI deputy director, made the announcement on X, saying that he had requested weekly briefings on the cases’ progress. . . .
‘So to Speak’ podcast: Heather Mac Donald on Trump & free speech
“[M]y reaction to everything that Trump is doing, and I agree almost across the board with his substantive aims whether it’s with regards to the universities, whether it’s regards to immigration, is what would we feel if the democratic administrations were doing this exact same thing in favor of their values? Everything we’re doing sets a precedent. Again, I acknowledge the precedent has already been set. . . . I’m still very nervous about the government using power because even though I’m not deeply libertarian, I do think that the hope of a neutral arbiter of a government that is restrained by rules that are content-free that are politics-free is one of the biggest yearnings of humanity, at least in the west.” — Heather Mac Donald
Heather Mac Donald discusses the Trump administration’s free speech record amidst its battles with higher ed, mainstream media, law firms, and more.
Mac Donald is a Thomas W. Smith Fellow at the Manhattan Institute. Her most recent book is “When race trumps merit: How the pursuit of equity sacrifices excellence, destroys beauty, and threatens lives.”
Related
- Heather Mac Donald, “The White House’s Clumsy Attack on Harvard,” City Journal (April 15) (“The administration is growing ever bolder in its crusade against the institutions responsible for left-wing ideology — whether elite law firms or universities. That crusade is unquestionably justified. Its targets deserve little sympathy. . .”)
More in the news
- “Public libraries may reject books for viewpoint, 5th Circuit rules,” Free Speech Center (May 27)
- Diego García Moreno, “Judge Halts Trump Admin’s Attempt to Withhold HUD Funds From Cambridge,” The Harvard Crimson (May 27)
- “NPR Sues Trump Administration Over Executive Order To Cut Federal Funding to Public Media,” First Amendment Watch (May 27)
- “In Lawsuit Over Teen’s Death, Judge Rejects Arguments That AI Chatbots Have Free Speech Rights,” First Amendment Watch (May 22)
- Carl Campanile, “Trump admin backs Jewish professor’s discrimination case against CUNY school,” The New York Post (May 14)
- Amanda Taub, “What Happened When Trump Altered the Deal With Law Firms and Universities,” The New York Times (May 6)
- “How Trump’s college crackdown is raising concerns about free speech and academic freedom,” PBS News (May 6)
- “US bill to ban Israel boycotts faces right-wing backlash over free speech,” Al Jazeera (May 5)
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
- Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
- Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
- TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency Applications
- Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
- Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
- Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
Beginning next week, First Amendment News (FAN) will be moving to Substack. Be sure to sign up and follow us there for future installments!
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This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE.
