He will settle for “sullen silence and obedience”
Reagan-appointed U.S. District Court Judge William Young on Tuesday issued “a scathing rebuke of President Trump” in a First Amendment case in Boston. At issue was the Trump administration’s targeting for deportation foreign students who expressed support for Palestinians in Gaza and/or criticized Israeli government actions there.
Young found that the Trump administration’s goal was to stifle the students’ free speech rights, writing:
Having carefully considered the entirety of the record, this Court finds by clear and convincing evidence that the Secretary of Homeland Security Kristi Noem and the Secretary of State Marco Rubio, together with the subordinate officials and agents of each of them, deliberately and with purposeful aforethought, did so concert their actions and those of their two departments intentionally to chill the rights to freedom of speech and peacefully to assemble of the non-citizen plaintiff members of the plaintiff associations.
While Trump’s Executive Order 14149, entitled “Restoring Freedom of Speech and Ending Federal Censorship,” purports to bar federal officials from “any conduct that would unconstitutionally abridge the free speech of any American citizen,” his view of the First Amendment’s freedom of speech protections is that it applies “to American citizens
alone, and to an unconstitutionally narrow view of citizenship at that.” Ergo, foreign students had best watch what they say while guests on U.S. soil. Young spends 161 pages schooling the Trump administration that that is not how our First Amendment works.
Young couched his opinion in part as a reply to an anonymous critic’s postcard (at top). It read: “Trump has pardons and tanks. … What do you have?”
Young’s sense of duty and “our magnificent Constitution.”
The New York Times reports that Young “assailed Immigration and Customs Enforcement agents for wearing masks, which he argued was a tactic ‘to terrorize Americans into quiescence’ and evoked ‘cowardly desperados and the despised Ku Klux Klan.’”
It is amusing that in commenting on what the Trump administration’s actions mean for free speech that Young launched his commentary based on a comment about Trump from his wife: “He seems to be winning. He ignores everything and keeps bullying ahead.”
Joyce Vance of Civil Discourse observes:
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.
Young has for now not enjoined the government from further deportations.
After signing his opinion, Young once again addresses his post card critic:
“While the president naturally seeks warm cheering and gladsome, welcoming acceptance of his views, in the real world he’ll settle for sullen silence and obedience,” Young wrote. “What he will not countenance is dissent or disagreement.”
Therefore, let the countdown begin for Trump’s call for Judge Young’s impeachment in 3-2-1.
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