Massachusetts Judge Upholds Free Speech Rights

On September 29, Federal Judge William Young, appointed to the Massachusetts District Court by President Reagan in 1985, issued a blistering and unprecedented rebuke to the Trump administration. CNN summarized his ruling, reporting that “the Trump administration can’t deny First Amendment protections to non-citizens, such as pro-Palestinian protesters on college campuses, or retaliate against them because of their positions. The opinion rules against the Trump administration’s immigration policy, and executive orders, and harshly critiques President Donald Trump’s approach to using his power.”

Judge Young’s ruling is legally meticulous, but also deeply felt and polemical in a way that speaks to the non-lawyers among us. Here are selected portions of his strong and passionate opinion, excerpted from pages 96-100 of his 161 page ruling: 

…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. Yet nothing will happen. The Department of Justice represents…the President, and Congress is occupied with other weighty matters.

Nor will there be any meaningful public outcry. There is an amalgam of reasons. The President in recent months has strikingly unapologetically increased his attack on First Amendment values, balked here and there by District Court orders…

ICE has successfully persuaded the public that it is our principal criminal law enforcement agency. Americans have an abiding faith in our criminal justice system… Despite the meaningless but effective “worst of the worst” rhetoric, however, ICE has nothing whatever to do with criminal law enforcement and seeks to avoid the actual criminal courts at all costs. It is carrying a civil law mandate passed by our Congress and pressed to its furthest reach by the President. Even so, it drapes itself in the public’s understanding of the criminal law though its “warrants” are but unreviewed orders from an ICE superior and its “immigration courts” are not true courts at all but hearings before officers who cannot challenge the legal interpretations they are given. Under the unitary President theory they must speak with his voice. The People's presence as jurors is unthinkable.

And there’s the issue of masks. This Court has listened carefully to the reasons given by Öztürk’s captors for masking-up and has heard the same reasons advanced by the defendant Todd Lyons, Acting Director of ICE. It rejects this testimony as disingenuous, squalid and dishonorable. 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. 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. “We can not escape history,” Lincoln righty [sic] said. “[It] will light us down in honor or dishonor, to the latest generation.” Abraham Lincoln, Second Annual Message to Congress (Dec. 1, 1862).

Perhaps we're now afraid to stick our necks out. If the distinguished Homeland Security intelligence agency can be weaponized to squelch the free speech rights of a small, hapless group of non-citizens in our midst, so too can the Federal Home Loan Mortgage Corporation, and the audit divisions of the I.R.S. and the Social Security Administration be unconstitutionally weaponized against the President's ever growing list of “enemies” or opponents he “hates” notwithstanding that political persecution is anathema to our Constitution and everything for which America stands.

Finally, perhaps we don't much care. After all, these Plaintiffs, a group of non-citizen pro-Palestinians are relatively small compared to the much larger interest groups who have every right vigorously to espouse the cause of the State of Israel. Palestine is far away and its people are caught up in the horrors of a modern war with heavy ordinance wreaking massive indiscriminate destruction, a war that is not one of our making. Why should we care about the free speech rights of their compatriots here among us?

Here's why:

The United States is a great nation, not because any of us say so. It is great because we still practice our frontier tradition of selflessness for the good of us all. Strangers go out of their way to help strangers when they see a need. In times of fire, flood, and national disaster, everyone pitches in to help people we've never met and first responders selflessly risk their lives for others. Hundreds of firefighters rushed into the Twin Towers on 9/11 without hesitation desperate to find and save survivors. That's who we are. And on distant battlefields our military “fought and died for the men [they] marched among.” Frank Loesser, “The Ballad of Roger Young”, LIFE, 5 March 1945, at 117.

Each day, I recognize (to paraphrase Lincoln again) that the brave men and women, living and dead, who have struggled in our Nation's service have hallowed our Constitutional freedom far above my (or anyone’s) poor power to add or detract. The only Constitutional rights upon which we can depend are those we extend to the weakest and most reviled among us.

In the political climate we find ourselves in—where institutions and institutional powers are increasingly willing to bend the knee to our would-be king—it’s rare and heartening to find a judge still willing to speak truth to power in no uncertain terms. When we feel alone in our fight, we should remember that decisions like Judge Young’s are still being written. 

For example, earlier this week, district court judge Karin Immergut, a Trump appointee, sharply blasted the Trump administration’s attempt to send the National Guard to Portland, as she asserted that the order was “untethered to facts” and warned that “this is a nation of Constitutional law, not martial law.” Federal district court judges like Young and Immergut have been the bulwark defending the rule of law against the intentional and shameless lawlessness of the nascent Trump dictatorship. They are heroes in the early stages of resistance. 

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