Judge lectures Trump administration extensively on the First Amendment

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President Donald Trump speaks in the Roosevelt Room of the White House in Washington, Monday, March 3, 2025 (Pool via AP).

The Trump administration has failed to convince a federal judge that its efforts to penalize “diversity, equity, and inclusion” (DEI) initiatives should be allowed to go forward amid an ongoing lawsuit.

In January, President Donald Trump issued two executive orders attempting to root out DEI from federal government contracts and barring government contractors with in-house DEI programs. Additionally, Trump directed the U.S. attorney general to “deter” such “programs or principles” and to consider launching “civil compliance” investigations to bring about such deterrence.

On Feb. 21, U.S. District Judge Adam B. Abelson, a Joe Biden appointee, issued a preliminary nationwide injunction against the three anti-DEI directives. On Feb. 25, the government filed a motion to stay the court’s order pending appeal. On Feb. 28, the plaintiffs in the case urged the judge to stick to his guns.

On Monday, the court denied the government’s motion to stay the injunction. In a 10-page memorandum opinion and order, the judge opined at length that the government’s anti-DEI policies constitute one of the “most egregious” violations of the First Amendment.

In the order, the judge notes that the government expressly aims to “deter” certain “principles” it disagrees with. Under long-established Supreme Court case law, the legal terminology to describe such action is “content discrimination.” Specifically, the subset of speech policing at issue is “viewpoint discrimination.”

That kind of government action is in the mainline of protections provided by the First Amendment’s free speech guarantee, the court notes. And here, the government’s various attempts to stamp out DEI created a panoply of free speech violations, the judge observed.

The court suggests the issue is not at all close.

“[T]he specific executive order provisions at issue in this case run afoul of these protections, and do so on their face, meaning the provisions themselves, among other things, expressly ‘draw distinctions based on the message a speaker conveys,”” the order reads. “They punish, or threaten to punish, individuals and institutions based on the content of their speech, and in doing so they specifically target viewpoints the government seems to disfavor. The provisions target not only purely private persons who have no nexus to federal funding, but also ‘seek to leverage funding to regulate speech’ of individuals and institutions that happen to contract with (or receive grants from) the federal government, and they terminate benefits or threaten punishment ‘because of [individuals’] speech on matters of public concern,’ which constitute independent First Amendment violations.”

The Fifth Amendment also looms large in the case.

The coalition of plaintiffs, led by the National Association of Diversity Officers in Higher Education, also convinced the judge that some anti-DEI directives were too vague and “undefined” for people to know exactly what the administration was trying to punish.

Those concerns are ancillary to the First Amendment analysis, Abelson said.

The court explains, at length:

The specific provisions at issue also likely violate the due process clause of the Fifth Amendment. After all, the First and Fifth Amendment analyses in this case merge in several ways, because laws that “interfere with the right of free speech or of association” must pass a “stringent vagueness test,” for such a law to give citizens sufficient notice of “what is prohibited, so that [they] may act accordingly,” and for such a law to provide sufficiently “explicit standards” to avoid “arbitrary and discriminatory enforcement.”

The Trump administration, for their part, argued the court’s nationwide injunction “intrudes on the Executive’s authority to enforce the law” and harms “intra-executive policy implementation by enjoining the President’s policy directives to federal agencies.”

The court suggests that the argument was a retread.

And, in any event, it was still unconvincing.

“As the Court explained in its memorandum opinion granting the preliminary injunction, the executive branch is obviously entitled to have policy goals and to pursue them,” the opinion goes on. “But in pursuing those goals it must comply with the Constitution, including, as relevant here, the Free Speech Clause of the First Amendment, and the Due Process Clause of the Fifth Amendment.”

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In its initial ruling, the court said the administration’s anti-DEI crusades “abridge the freedom of speech” and are “unconstitutionally vague on their face.” In short, nothing has changed since — or convinced the court otherwise.

“As the Court has explained, although the case is presently in its preliminary stages, several of the challenged provisions clearly, on their face, violate First Amendment free speech protections,” Abelson writes. “And when balancing the harms, the chilling of the exercise of fundamental First Amendment rights weighs strongly in favor of the preliminary injunction, and against a stay pending appeal. Likewise, Plaintiffs have shown a likelihood of success on the merits based on the unconstitutional vagueness of the challenged provisions. Defendants have offered no new evidence or arguments that justify a reassessment of the balance of the harms or the public interest considerations in this case.”

In an alternative but also failed effort to get the court to reconsider the extent of the injunction, U.S. Department of Justice lawyers cited both Supreme Court Justices Clarence Thomas and Neil Gorsuch. Abelson said those citations were not convincing. The Gorsuch reference had to do with a different issue; the Thomas reference had to do with a general disdain for so-called “universal” injunctions.