The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Washington Court of Appeals Concurrence's >2500-Word Sharp Criticism of President Trump
From the concurrence in Judge George Fearing's concurrence in today's Wilkinson v. Wash. Med. Comm'n. Judge Fearing wrote the majority opinion, which upheld discipline imposed on a doctor for his COVID-related treatment, but rejected such discipline for the doctor's public speech "downplaying the severity of the COVID pandemic, promoting the use of ivermectin over a vaccine, and criticizing the government's response to the pandemic." On balance, Judge Fearing's majority is quite a First-Amendment-protective opinion, and his separate concurrence also argued that the doctor's speech should be especially protected as political speech, and not just speech about medicine.
Then, several pages into his concurring opinion, Judge Fearing turned from the issues in the case to the First Amendment more broadly, and then to the political situation in the U.S. more broadly. A short excerpt from his long criticism (which offers specific details as well as general condemnation):
Not for more than two hundred years has any President sought to destroy the First Amendment as our current national leader has…. This President operates under an authoritarian and retributive agenda that trashes the First Amendment rights of those who criticize him or who support causes with which he disagrees. This President loathes the nonpartisan nature of the First Amendment…. Our current President refuses to answer legitimate questions posed by reporters and attacks inquiring journalists as unfair and stupid….
Our current President criticizes federal judges who rule against him…. Unknown individuals have sent pizzas to federal judges' home addresses to menace them. One pizza arrived at the home of United States District Court Judge Esther Salas under the name of Daniel Anderl, the judge's son who was killed by a disgruntled gunman targeting Salas. Judges increasingly receive threats for rulings issued unfavorable to the presidential administration. Attacks on the judiciary impede the checks and balances intended by the framers of the United States Constitution. The sidelining of the judiciary permits rule by political power and brute force rather than by law. Other judges warn, both inside and outside the context of written rulings, of a clear and present danger to the judiciary and the rule of law by the current administration….
In the face of violence against his adherents, the present president, instead of elevating tolerance and preaching liberty of thought and freedom of speech, weaponizes the deaths and injuries for political gain. He immediately demonizes an unidentified "them," meant to refer to anyone who opposes his agenda. He does not then concede the existence of good people who hold liberal political views….
I encourage Dr. Wilkinson and all Washingtonians to recognize, as this concurring opinion has, the nonpartisan nature of the First Amendment and to condemn the violations of the First Amendment by any President who bestows free speech protections only on his votaries….
I share much of Judge Fearing's disapproval of the President's particular actions related to free speech (see, e.g., my views as to the administration's actions with regard to Harvard, law firms, and more). But such a thoroughgoing condemnation of an elected official's overall behavior and attitudes, in a case that doesn't even directly deal with the official's actions, struck me as quite unusual (even in an opinion issued by an elected judge, as Washington judges in part are), and in my tentative view not really fitting for a judicial opinion. In any case, it was noteworthy, so I'm noting it; I'd love to hear others' views on the subject.
