Since returning to office in January, President Trump has repeatedly abused his executive power in an attempt to silence those who dare to challenge his administration’s agenda. This spring, the administration issued executive orders imposing sanctions on certain major law firms in retaliation for their advocacy on behalf of clients and issues disfavored by the President. Among other major law firms, the administration has singled out Perkins Coie for its work with prominent democrats Hillary Clinton and George Soros and WilmerHale for hiring former Special Counsel for the United States Department of Justice Robert Mueller. The orders strip firms’ lawyers of access to federal facilities and employees, suspend security clearances, and prevent the firms from engaging in business with federal contractors.
While some firms have cut deals with the administration to avoid retribution, a few have instead asked the courts to step in and prevent the implementation of the executive orders. NCAC joined several other free expression organizations in filing amicus briefs on behalf of the law firms Perkins Coie, WilmerHale, Jenner & Block, and Susman Godfrey. The briefs argue that the First Amendment implicitly protects legal advocacy on behalf of clients. In targeting firms for their representation of certain clients, the executive orders unconstitutionally retaliate against firms for engaging in protected advocacy. This type of viewpoint-based discrimination violates the First Amendment and fosters an atmosphere in which law firms may avoid bringing future challenges that oppose the administration’s interests out of fear of retribution.
The Founding Fathers designed the judicial process to act as a safeguard against abuses of power by the legislative and executive branches. But the judiciary only functions as well as the lawyers who advocate before it. Without fervent advocates willing to take stances against the government, our system of checks and balances will crumble. A fair adjudicative process requires balance, in which both sides of an issue receive a full and thorough defense. If only one side can secure such a defense – as would likely happen if the courts do not hear from advocates for constitutional rights – our system collapses. The ability of lawyers to zealously represent controversial clients without fear of government reprisal is essential for individual liberty and central to American history, values, and our democracy.
Thankfully, federal judges in three of the four pending cases surrounding the targeting of law firms have already issued opinions agreeing with NCAC’s position. The fourth is still being litigated, though the judge has temporarily blocked enforcement of the administration’s executive order against Susman Godfrey.
Despite these favorable judicial decisions, however, the administration has not confined its misfeasance to the legal profession. It has repeatedly targeted the academic sector, punishing schools and students alike for exercising their right to free speech. In April, several federal agencies sent a joint letter to Harvard University that included a list of demands to be met in order to “maintain Harvard’s financial relationship with the federal government.” The ultimatum included “reducing the power held by faculty (whether tenured or untenured) and administrators more committed to activism than scholarship”; implementing merit-based hiring and admissions policies to be audited by the federal government; instituting viewpoint diversity in hiring and admissions; and appointing an external party to audit programs that “reflect ideological capture.” Harvard rejected these demands, and the administration subsequently canceled billions of dollars in grants to the school.
Rather than bow to the ire of the President, Harvard filed a lawsuit asserting violations of the First Amendment. This response was markedly different from that of Columbia University, which was similarly targeted by the administration but instead chose to capitulate to its demands. Yet, the administration’s attacks on Columbia have not ceased. Just last week, the U.S. Department of Education placed Columbia’s accreditation in jeopardy, a status which gives the school access to federal student aid – serving as a reminder of the self-defeating nature of Faustian bargains. These assaults on the disfavored ideological positions of certain universities, as well as the removal of international students engaged in protected advocacy, are evidence of the administration testing the bounds of executive power in order to establish a tyrannical monoculture.
Academic freedom is of particular importance in the context of free speech doctrine. Universities serve as a hub for those who desire to engage in the free exchange of ideas, the precise intellectual exercise upon which the First Amendment was constructed. Joining the ACLU and several other organizations, NCAC filed an amicus brief in support of Harvard, emphasizing a core First Amendment principle: the government cannot force private speakers to adopt its preferred views. A central tenet of academic freedom is a university’s ability to decide “what to teach, how to teach it, who will teach it, and to whom.” The government may not leverage federal research funds or revoke a university’s ability to host international students because the school does not align with the government’s favored viewpoint. Nor does the First Amendment permit the government to revoke green cards for lawful advocacy, as NCAC argued in amicus briefs in support of Rumeysa Ozturk and Mahmoud Khalil.
These actions, while blatantly unconstitutional, underscore a thematic wielding of government authority against private entities to dictate who they are, who represents them, who may participate, and with whom they may associate. Throughout our country’s history, lawyers, students, and academics have each played integral roles in advancing novel ideas and pushing for a more just society. They form the intellectual bedrock of a functioning democracy, and so it makes sense that they would be among the first targets of an administration hellbent on quashing dissent. Unfortunately for the administration, however, the First Amendment protects their right not to go quietly.