Trump 2.0 First Amendment Litigation Roundup
The administration has been losing - bigly - in the lower courts.
As readers know, I’ve been working on both a repository of all Trump 2.0 First Amendment-related executive actions and a book, Trump 2.0: Executive Power and the First Amendment (forthcoming later this year). In conjunction with both projects, I’ve been keeping close track of First Amendment litigation in the lower courts. I wanted to provide a summary of that litigation, now eight months into Trump’s second term. Below is a summary of the number of lawsuits and their outcomes. I also offer some caveats as we consider this early data.
The Numbers
So far, President Trump has issued 43 Executive Orders, Fact Sheets, and Presidential Memoranda that implicate or affect First Amendment rights (speech, press, and association). Those directives and policies, and related agency enforcement actions, have given rise to 55 lawsuits (or nearly 7 lawsuits for each month Trump has been in office) in which plaintiffs have pursued First Amendment claims. The lawsuits can be grouped into various categories, which I discuss below. (The discussion here does not include several civil lawsuits in which President Trump has sued media outlets. These cases also implicate important free speech and press concerns.)
The Case Outcomes
As a general matter, the Trump Administration has been losing very badly in early lawsuits challenging the President’s directives and agency actions on First Amendment grounds. District courts have granted preliminary and, in some cases, permanent relief to many plaintiffs.
Law Firms and the Bar. President Trump targeted six law firms in Executive Orders based on their advocacy and representation of specific clients. District courts granted summary judgment to all four law firms that challenged these Orders on First Amendment and other (vagueness and Sixth Amendment) grounds. The courts did not consider these to be close cases. Indeed, lower court judges expressed shock and dismay that the Executive Branch would attack law firms and their employees in retaliation for their protected expression. In addition, the American Bar Association obtained a preliminary injunction in an action challenging the retaliatory termination of federal grants relating to domestic violence and other projects. (The ABA has also filed a lawsuit on behalf of itself and its members challenging what it has referred to as the Trump Administration’s “Law Firm Intimidation Policy.”)
Immigration Enforcement. The Trump Administration has arrested, detained, and subjected to removal a group of lawfully resident international students and foreign scholars who made pro-Palestine or anti-Israel statements during recent campus protests centering on the Hamas-Israel war. Six of those individuals challenged their arrests and detentions. In all six cases, the court granted release and bail in part based on the government’s likely violation of their First Amendment rights to engage in political expression. District courts have uniformly concluded that the federal government had canceled visas and engaged in other immigration enforcement actions in retaliation for protected expression. When pressed to reveal a non-speech basis for arresting and jailing the students and scholars, the Trump Administration has failed to provide any convincing evidence.
Education. Several courts enjoined enforcement of a Department of Education “Dear Colleague Letter” that purported to ban “DEI” practices by K-12 and higher education institutions. Although President Trump has issued several Executive Orders and other directives banning “Diversity, Equity, and Inclusion,” neither he nor any federal agency has yet defined the concept for purposes of regulating, terminating funding, or any other action.
Courts seized on this ambiguity when enjoining enforcement of the Letter. Three courts have enjoined enforcement of the DOE letter on both First Amendment and vagueness grounds.
As I discussed in a prior post, a district court in Boston recently granted summary judgment to Harvard University in its lawsuit challenging the Trump Administration’s denial of more than $2 billion in federal research grants. Judge Burroughs concluded that the Trump Administration had retaliated against Harvard based on protected expression, including its filing of the lawsuit challenging the administration’s funding freezes and terminations. The court also held that the agency funding denials violated the First Amendment because they imposed unconstitutional conditions based on viewpoint.
The same district court entered a preliminary injunction barring the Trump Administration from revoking Harvard University’s ability to enroll international students - again on the ground that the agency action was in retaliation for the university’s protected expression. (This was merely one of twelve separate agency actions and investigations against Harvard University.)
“DEI,” “Gender Ideology,” and Federal Contracting. Pursuant to President Trump’s Executive Orders concerning “DEI” and “gender ideology,” agencies have been directed to take various actions against federal contractors. Among other things, the president’s directives charge agencies with terminating relationships with contractors engaged in disapproved “DEI,” equity-related, or “gender ideology” activities and require that federal contractors certify that neither they nor any sub-contractors are engaged in such activities.
In one case brought by a group of nonprofit organizations that provide healthcare, social services, and advocacy for LGBTQ communities—many specifically serving transgender individuals—and that rely heavily on federal funding to carry out their missions, a district court in California entered a preliminary injunction against enforcement of several provisions of the “gender ideology” Executive Orders. The court described the provisions as “an effort to censor constitutionally protected speech and services promoting DEI and recognizing the existence of transgender individuals.”
A district court in Illinois likewise preliminarily enjoined enforcement of the “gender ideology” provisions in Trump’s Executive Orders on First Amendment and vagueness grounds.
In another case, a district court in Maryland initially enjoined these same directives on First Amendment and vagueness grounds. However, a panel of judges on the Fourth Circuit granted a stay because plaintiffs had not challenged any specific enforcement action. The judges on the panel made clear that if the federal government took direct action to terminate grant funding or enforce the certification requirement in the manner plaintiffs alleged, such actions would raise serious First Amendment concerns.
In one case, a district court rejected a facial challenge to the “DEI” provisions, concluding that they could be validly enforced against contractors who engaged in violations of federal anti-discrimination law. Essentially, the court interpreted the Executive Orders as directing agencies to investigate and sanction conduct rather than expression. But again, the court did not opine on whether the administration could lawfully enforce the provisions against contractors who advocated or supported “DEI.”
Scientific Inquiry. The Trump Administration has substantially intervened in the scientific process. It has taken several steps, including funding denials, in an effort to suppress studies that involve considerations of race and gender.
A district court in California granted a preliminary injunction to a certified class of scientists who challenged the termination of a variety of research grants based on President Trump’s directives that federal funding was not to be used to support “DEI” and “gender ideology.” The Ninth Circuit denied a stay of that decision pending appeal.
In another lawsuit, nonprofits and municipalities obtained a preliminary injunction against denial of funding for various climate-related and environmental research projects, once again based on alleged “DEI” restrictions.
Another court enjoined agency removals from government-run databases of scientific papers that contained forbidden race or gender terminology, on the ground that the removals were based on viewpoint and were not reasonably related to providing accurate information about health care.
Arts Funding. A group of artists who were hopeful recipients of federal arts funding, whose intended projects would feature transgender and nonbinary performers, characters, stories, and themes, sought to enjoin the National Endowment for the Arts from prohibiting recipients of NEA grants from using the grants to promote “gender ideology,” as defined in the president’s Executive Order. A district court in Rhode Island rejected plaintiffs’ vagueness challenge, but concluded the artists were likely to prevail on their First Amendment challenge.
Agency Press Investigations. A district court in D.C. has enjoined a Federal Trade Commission investigation against Media Matters based on its alleged participation in an advertising boycott against the social media platform X. The court concluded that the investigation was in retaliation for the content of Media Matters’ reporting on X’s advertising policies and the rise in hateful and derogatory expression on the site after Elon Musk purchased it.
Humanitarian Activities. Two district courts, one in Maine and one in New York, have enjoined enforcement of an Executive Order that directs prosecution of anyone who provides assistance to the International Criminal Court. Plaintiffs in these cases have provided expert reports, testimony, and other assistance to the ICC in human rights prosecutions.
Press Exclusions. In one case a district court concluded that the White House’s exclusion of the Associated Press from events in the Oval Office and Air Force One based on its refusal to call the Gulf of Mexico the “Gulf of America” violated the First Amendment. On appeal, however, the D.C. Court of Appeals granted a stay of that decision, which the full court affirmed. The White House subsequently excluded the Wall Street Journal from events based on its reporting concerning Trump’s relationship to Jeffrey Epstein.
Some Caveats
In sum, the Trump Administration’s track record in First Amendment free speech and free press cases is not very impressive. Although it has prevailed in a couple of instances, district courts have applied retaliation, viewpoint discrimination, vagueness, and unconstitutional conditions doctrines to strike down a number of executive branch directives, policies, and actions. Lower courts and the First Amendment have helped preserve freedom of expression in areas ranging from immigration enforcement to scientific inquiry. However, there are several caveats that accompany this early record in the courts.
Many of the early cases involve preliminary injunctive relief (e.g., temporary restraining orders and preliminary injunctions). At this stage courts are ruling on whether the government’s actions likely violated the First Amendment rather than concluding a violation occurred.
Some of these early district court decisions have already been appealed. It is not certain how appeals courts will rule on the First Amendment issues. In the two cases in which appeals courts have weighed in, both have granted stays of lower court decisions granting preliminary relief. If and when any of these cases reach a Supreme Court that has so far issued Trump-friendly rulings, the justices may see things differently than lower courts.
Some of the plaintiffs’ victories may be partial and short-lived. For example, in the cases involving international students, judges have ordered their release pending immigration proceedings. It is not clear how their First Amendment claims will fare in deportation actions, where the government will likely rely on non-speech justifications and courts may have limited power to review constitutional claims.
While individual plaintiffs have been successful in pursuing First Amendment claims, these actions represent only a small fraction of the Trump Administration’s effect on free expression. Litigation results cannot capture the full extent of the administration’s chilling of expression. For example, although four law firms succeeded in their First Amendment challenges to Trump Administration sanctions, several law firms entered “deals” with the administration rather than fight it in court. Ditto elite universities, many of which have agreed to the administration’s demands rather than file legal challenges. A lot of expressive chill occurs behind the scenes. Regulated parties or potential targets of Executive Orders have engaged in anticipatory compliance with vague and broadly worded prohibitions on “DEI,” “gender ideology,” and other concepts. Thus, many speakers have likely altered or revised their expression to avoid the wrath of the federal government.
Finally, there is the matter of the extent of relief plaintiffs can obtain from the government’s speech-suppressive actions and policies. In a recent decision regarding birthright citizenship, the Supreme Court restricted lower courts’ power to issue nationwide injunctions. In essence, that means unless a group of speakers, for example federal grantees, can convince a court to certify a class of similarly affected plaintiffs, relief extends only to the specific grants denied. Plaintiffs cannot otherwise challenge a governmental policy of denying grants because they deal with matters of race or gender. Further, litigation involving scientific papers, art exhibits, and “DEI”-related funding terminations is similarly limited to the papers, exhibits, and grants in the case. Bottom line: even if the administration loses in individual cases, it may continue to enforce speech-suppressive measures in identical contexts unless and until a plaintiff successfully sues on behalf of a class of similarly situated plaintiffs.
I raise these caveats not to denigrate plaintiffs’ efforts to defend and preserve First Amendment rights to date, or to discount the relief they’ve obtained. Rather, these are necessary reminders that courts and First Amendment doctrines can provide only limited protection to the full range of speakers targeted or affected by executive action aimed at expression. Broader protection can come only from a Congress finally awakened to executive threats to its own power, an executive that respects a diversity of viewpoints and the rule of law, candidates who put free speech and press on the ballot, and a citizenry that votes its support for First Amendment freedoms.