May Solidarity and Speech Defeat Pardons and Tanks
The site was bolloxed last night and most of the day so I didn’t even get to tailor the videos showing that the kidnapping of Ras Baraka on May 9 was premeditated, but I did want to alert you to this opinion from Reagan appointed senior judge William Young, ruling that Trump’s retaliation against immigrants who speak out for Palestinian rights violates the First Amendment.
The entire 161-page opinion is fashioned as a response to an anonymous postcard Judge Young received while presiding on this case. Young responds to the question, “WHAT DO YOU HAVE?” to respond to Trump’s pardons and tanks.
Alone, my sense of duty. Together, we have … this 161-page opinion.
He ends by returning to his anonymous interlocutor, inviting him or her to see how juries work.
Much of the rest, especially starting on page 148, where he examines whether there is a remedy he can award plaintiffs, catalogues Trump’s harms.
A section describes how Trump ignores mores and pushes and pushes until someone stands up; Young describes how many institutions of Free Speech have caved.
This is indubitably true. The Constitution, our civil laws, regulations, mores, customs, practices, courtesies — all of it; the President simply ignores it all when he takes it into his head to act. A broad swath of our people find this refreshing in what they may feel is an over regulated society. After all, lawyers seem to have a penchant for telling you what you can’t do. President Trump simply ignores them.50
This is not to suggest that he is entirely lawless. He is not. As an experienced litigator he has learned that –- at least on the civil side of our courts -– neither our Constitution nor laws enforce themselves, and he can do most anything until an aggrieved person or entity will stand up and say him “Nay,” i.e. take him to court. Now that he is our duly elected President after a full and fair election, he not only enjoys broad immunity from any personal liability, Trump v. United States, 144 S.Ct. 2312 (2024), he is prepared to deploy all the resources of the nation against obstruction. Daunting prospect, isn’t it?51
Small wonder then that our bastions of independent unbiased free speech –- those entities we once thought unassailable –- have proven all too often to have only Quaker guns.52 Behold President Trump’s successes in limiting free speech -– law firms cower,53 institutional leaders in higher education meekly appease the President,54 media outlets from huge conglomerates to small niche magazines mind the bottom line rather than the ethics of journalism.55
50 Let’s be honest. In our secret heart of hearts, many of us are tiny Trump wannabes. After all, who does not feel the urge to stride about, “sticking it to The Man,” wrecking institutions and careers simply because we find them irksome? Most of us, however, ascribe to Shakespeare’s famous adage: “O, it is excellent To have a giant’s strength; but it is tyrannous To use it like a giant.” MEASURE FOR MEASURE, act 2, scene 2.66.
51 The federal courts themselves are complicit in chilling would-be litigants. It is not that we are less than scrupulously impartial. We demonstrate our judicial independence and utter impartiality every day whatever the personal cost. It is, rather that in our effort to be entirely fair, thorough, and transparent, we are slow, ponderously slow. This in turn means we are expensive, crushingly so for an individual litigant. Frequently, the threat of federal civil litigation, however frivolous, is enough severely to harass an individual and cause his submission. The flurry of activity on the Supreme Court’s emergency docket is itself a tacit admission that, when dealing with an administration that is admittedly seeking to “flood the zone,” it needs to intervene to correct rulings that, if not immediately remedied, will remain in effect far too long.
52 A term from our Civil War – logs painted black to look like cannons.
53 But not all of them. See infra.
54 But not all of them. See infra.
55 But not all of them. See infra.
But not all of them.
But not all of them.
But not all of them.
And several pages later, Judge Young describes which law firms, which media outlets, which university, have stood up to Trump’s bullying.
This Reagan appointee ends — just before inviting his anonymous interlocutor to attend a jury trial — by invoking Reagan, and asking whether Trump, whose bullying he has laid out over a dozen pages, is simply counting on American complaisance.
To this delicate task the Court will turn in the remedy phase.
Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people.
President Ronald Reagan, Inaugural Address as Governor of the State of California (January 5, 1967).64
I first heard these words of President Reagan’s back in 2007 when my son quoted them in the Law Day celebration speech at the Norfolk Superior Court. I was deeply moved and hold these words before me as a I discharge judicial duties. As I’ve read and re-read the record in this case, listened widely, and reflected extensively, I’ve come to believe that President Trump truly understands and appreciates the full import of President Reagan’s inspiring message –- yet I fear he has drawn from it a darker, more cynical message. I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected.
Is he correct?
It may be bounced on appeal (he cited AP’s challenge to Trump’s sanctions on them, which they lost on appeal).
But the speech is the thing.