Trump Administration Likely Violated American Bar Association's First Amendment Rights

A federal court holds that "a series of grants with the ABA that funded services to victims of domestic and sexual violence" were terminated because the ABA had joined a lawsuit against the Administration.

A bit of legal background: Generally speaking, the government may not cancel contracts with private organizations based on the organizations' First Amendment activities (see, e.g., Bd. of Comm'rs v. Umbehr (1997)). The same is true of cancellation or denial of grants (see, e.g., Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l (2013)). And filing lawsuits is generally seen as protected by the First Amendment right to "petition the Government for a redress of grievances."

Now, from today's opinion by Judge Christopher Cooper (D.D.C.) in American Bar Ass'n v. U.S. Dep't of Justice (what follows is just a short excerpt from a longer analysis):

Last month, Deputy Attorney General Todd Blanche issued a memorandum prohibiting all Department of Justice ("DOJ") lawyers from participating in events sponsored by the American Bar Association ("ABA") on official time. The reason, Blanche candidly explained, was that the ABA had recently joined a lawsuit against the Trump Administration {challenging the Administration's freeze on international development grants to the U.S. Agency for International Development and the Department of State}. The next day, DOJ cancelled a series of grants with the ABA that funded services to victims of domestic and sexual violence. The only explanation offered for the cancellation was a terse statement indicating that the grants "no longer effectuate[ ] … [DOJ] priorities." …

"[T]he First Amendment bars [government] retaliation for protected speech." … The ABA has made a strong showing that Defendants terminated its grants to retaliate against it for engaging in protected speech…. First, the Blanche Memo "openly acknowledges that plaintiff engaged in speech and other activities protected by the First Amendment." It identifies the catalyst for the memo and DOJ's change in policy as to the ABA: "[T]he ABA filed a lawsuit against the United States." And it describes the ABA's history of "tak[ing] positions on contentious legal, policy, and social issues" that "frequently have not aligned with the positions advanced by [DOJ]" and its "litigat[ion] in support of activist causes." This activity is protected under the First Amendment.

Second, DOJ's termination of the grant funding is an action "sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again." …

Third, the ABA's allegations, accepted as true, plausibly plead that the govement's proffered justification for terminating the grants is pretextual, and that the real reason was retaliation. The Blanche Memo explicitly spells out how DOJ will be changing its approach toward the ABA in light of the ABA's lawsuit against the United States. And the temporal proximity between the Blanche Memo and the termination of the ABA's grants is probative of Defendants' retaliatory motive. The Memo may not have mentioned the ABA's grants specifically, but it promised to stop funding ABA events because of the DOJ's duty to be a "careful steward[ ] of the public fisc."

The government claims that it had a nonretaliatory motive for terminating the grants: They no longer aligned with DOJ's priorities. But the government has not identified any nonretaliatory DOJ priorities, much less explained why they were suddenly deemed inconsistent with the goals of the affected grants.

And the government's different treatment of other grantees suggests this justification is pretextual. DOJ did not terminate any other OVW [Office on Violence Against Women] grants, and, at oral argument, the government conceded that other grant recipients continue to conduct similar training functions with OVW money. The government has offered no nonretaliatory explanation for why it continues to fund these other OVW grantees after terminating the ABA's grants, or why these other grantees' projects still effectuate DOJ's priorities while the ABA's do not.

Finally, DOJ also purported to terminate two grants that, by their terms, had already ended, making it even less plausible that DOJ conducted an individualized analysis of whether each grant aligned with DOJ policy. Based on all this, the Court cannot but conclude that the ABA is likely to succeed on its claim that Defendants terminated the agreements because of its protected activity in violation of the First Amendment….

Given that the ABA has established a likelihood of success on the merits of a constitutional claim, it has shown that the balance of the equities and public interest favor an injunction preventing the government from continuing to violate the Constitution.

The court therefore issued a preliminary injunction blocking the termination of the grants.

Brian D. Netter, Christine L. Coogle, Josephine Morse, Kristin Lee Bateman, Pooja Boisture, and Skye Perryman (Democracy Forward Foundation) represent the ABA.