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.

Comments

[santamonica811]

"..."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 cynic might note that, given this President's history of rape and/or sexual assaults that spanned decades; this could actually be seen as one of the more-principled and consistent positions . . . and really reflects one of rare examples of Trump's true core beliefs (here, an aversion to supporting victims of sexual violence).

[JonBlack]

Are issuing District Court opinions when the judge clearly has no jurisdiction also covered by the First Amendment?

The last paragraph of the intro would be embarrassing for someone who ever drove by a law school. That it came from a Federal Court Judge is humiliating.

[Eugene Volokh]

Thanks -- I take it that you disagree with the court's discussion of whether this matter belongs in District Court rather than in the Court of Federal Claims; might you elaborate why?

Simply saying that "the judge clearly has no jurisdiction" and calling the analysis "humiliating" doesn't do much, I think, to rebut the court's fairly detailed claim that he does have jurisdiction. Perhaps he's wrong, but exactly why is he wrong?

[not guilty]

If it weren't for ipse dixits, JonBlack would have no dixits at all.

[ah....Clem]

"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."

Seems to me that if you have "reasons" you need to articulate what those "reasons" are, not just say "I've got reasons. Trust me. No, I won't tell you them."
So, the administration's legal team had nothing. No wonder they lost.

[Martinned2]

filing lawsuits is generally seen as protected by the First Amendment right to "petition the Government for a redress of grievances."

For the record, this is weird, and an example of the US tendency to stick anything possible under the First Amendment, because the First Amendment is enforced so much more rigorously by the courts than the rest of the constitution.

A petition for redress of grievances is stuff like this: https://en.wikipedia.org/wiki/Right_to_petition_in_the_United_States

Going to court to demand the thing you're already entitled to would, in any sensible country, be protected under the due process clause. Punishing someone for (non-frivolous) litigation interferes with their right not to be deprived of life, liberty, or property, without due process of law.

[Voize of Reazon]

It says petition the Government, not just petition the Courts.
People complain to politicians all the time, and they don't necessarily have to be able to make out a reasonable claim of entitlement to it.

[Martinned]

Yes, that's the kind of petitioning that is protected explicitly by the first amendment.

[not guilty]

In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972), SCOTUS recognized that the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983). In this regard, however, meritorious actions are unlike suits based on insubstantial claims.

Suits lacking a "reasonable basis" are not within the scope of First Amendment protection. As the Supreme Court opined in Bill Johnson's:

The first amendment interests involved in private litigation -- compensation for violated rights and interests, the psychological benefits of vindication, public airing of disputed facts -- are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims. Furthermore, since sham litigation, by definition, does not involve a bona fide grievance, it does not come within the first amendment right to petition.

Just as false statements are not immunized by the First Amendment right to freedom of speech, see Herbert v. Lando, 441 U.S. 153, 171 (1979); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), baseless litigation is not immunized by the First Amendment right to petition.

(Footnote and internal quotation marks omitted.)

[Martinned]

Oh yes, I didn't think prof. Volokh had the law wrong. That case is just an example of how, in the US, anything that remotely resembles a first amendment nail is hammered with the first amendment hammer.

[David Nieporent]

Since we're discussing the administration's violation of free speech: one of the law firms targeted by the administration, Susman Godfrey, was accused by the administration of "fund[ing] groups that engage in dangerous efforts to undermine the effectiveness of the US military." Was Susman Godfrey donating to Vlad Putin? To Hamas? No, it turns out that it had donated to a group called GLAD — GLBTQ Legal Advocates and Defenders — which back in 2017 (with different lawyers) had sued the administration over a trans ban.

To reiterate:

2017: GLAD sues Trump 45 over a trans ban.
Sometime between 2017 and 2025: Susman Godfrey donates to GLAD.
2025: Trump 47 claims that this donation is "dangerous" because of the previous lawsuit, and tries to punish Susman Godfrey for the donation.

[not guilty]

"[F]und[ing] groups that engage in dangerous efforts to undermine the effectiveness of the US military"?

Apparently the Trump administration considers our armed services members to be so lily-livered that they will get a debilitating case of heebie jeebies if they serve alongside lesbians and gays.

[Purple Martin]

"...dangerous efforts to undermine the effectiveness of the US military."

Arguable. One might say, Objection. Assumes facts not entered into evidence placed before the court. Strong counter arguments exist based on history and current records of effective performance will be placed before the 1st Circuit when it takes up the appeal of the now-stayed preliminary injunction.

Ideological purges reduce deterrence, readiness, and effectiveness. Just ask Stalin
Banning transgender servicemembers will have effects far beyond the careers of a few thousand troops.
By Col. Bree Fram | April 25, 2025 12:57 PM ET

History is replete with cautionary tales about the dangers of ideological purges, particularly when they target national-security institutions. One of the starkest examples comes from the Soviet Union, when Joseph Stalin’s purges gutted the Red Army on the eve of World War II. Now the United States faces a potentially parallel crisis: the purge of transgender service members from the military amid rising tensions with China and Russia. The consequences for national security ripple far beyond the careers of a few thousand troops.

In 1937 and 1938, the Great Terror swept through the Soviet military. More than 24,000 officers were discharged, and nearly 10,000 were arrested. Stalin targeted officers based on their belonging to perceived “dangerous” groups, rather than any actual disloyalty. The loss of senior leaders cost the Red Army thousands of cumulative years of institutional experience, forcing Stalin to replace seasoned generals with untested officers promoted for their political reliability rather than their military competence. Historian David Glantz writes that Stalin’s paranoia “impelled him to stifle original thought within the military institutions and inexorably bend the armed forces to his will…The bloodletting that ensued tore the brain from the Red Army, smashed its morale, stifled any spark of original thought and left a magnificent hollow military establishment, riper for catastrophic defeat.”

This hollowing-out of leadership eroded deterrence...
...
A dangerous parallel

Though the scale of the Great Terror dwarfs the trans ban, the United States is at risk of repeating Stalin’s blunder. Thousands of transgender troops, most with more than a decade in uniform, currently serve in the U.S. armed forces. Like Stalin’s Red Army officers, they are being expelled not for any performance failures, but solely because of ideology.

The current administration claims, without evidence, that transgender people are “incompatible with the high mental and physical standards necessary for military service.” Officials have been unable to back up these claims, even when challenged in court. “Any evidence that such service over the past four years harmed any of the military’s inarguably critical aims would be front and center. But there is none,” wrote Judge Benjamin Settle, one of three U.S. District Court judges who have placed injunctions on the administration's ban.
...
The removal of so many dedicated, skilled, and battle-tested personnel can only reduce readiness. Many transgender troops are senior officers and non-commissioned officers who are leading from the front or training and developing the next generation of service members...
...
The loss of such trained personnel means their replacements will be less experienced, just as Stalin was forced to promote unqualified officers to fill gaps. Military readiness is not just about numbers—it is about experience, training, and trust. Replacing seasoned professionals with less-prepared individuals weakens operational effectiveness.

Beyond the loss of talent, the purge undermines morale across the armed forces. Those who saw transgender troops as friends and teammates now see holes in their unit manning. As well, forcing out qualified transgender personnel sends the message that even dedicated professionals can be dismissed for reasons completely unrelated to their capability—hardly encouragement to pursue a long-term military career.
...
Transgender service members have proven their worth time and again. Removing them from the military is not only an attack on them, but a direct threat to national security. In a time of growing global instability, the U.S. military cannot afford to weaken itself by sidelining dedicated professionals, stifling diversity of thought and a willingness to provide best military advice over “yes, sir”, and reducing the pool of Americans willing and able to serve. It is essential that our national defense remain guided by strategic necessity, not ideology.

The views presented in this piece are personal and do not necessarily reflect the views of the Defense Department or the United States government.

Bree Fram is a colonel and astronautical engineer in the U.S. Space Force. She is stationed at the Pentagon and is one of the highest-ranking transgender service members in the military.

https://www.defenseone.com/ideas/2025/04/ideological-purges-reduce-deterrence-readiness-and-effectiveness-just-ask-stalin/404845/

[F.D. Wolf]

Apparently, activist, overtly left-wing organizations that receive taxpayer dollars have a constitutional right to receive those dollars in perpetuity as long as they remain left-wing activists.

[Roger S]

It is amazing how many Leftist organizations depend on tax money. If necessary, we need to change the law to cut off this funding.

[David Nieporent]

Oh, you were so close. If only you could have resisted the mindless urge to say "leftist," you might have been able to make it through two whole sentences without making a self-destructive, unconstitutional argument.

[MollyGodiva]

Oh sweetie the Trump administration violates everyone’s rights. However it is kinda cute to listen to people specify which right is being violated and in what way.

[y81]

Once again, really stunning incompetence from the Bondi Justice Department. Why don't they do some minimal homework? I feel like no one there has ever had a job at a real law firm, or could get or keep a job as a first year associate in biglaw.