Open Thread

What’s on your mind?

Comments

[not guilty]

There was some discussion on an open tread earlier this week of the American Academy of Pediatrics lawsuit against the U. S. Department of Health and Human Services and other defendants regarding the termination of various federal grants, which the Plaintiff alleges to be in unconstitutional retaliation for its exercise of First Amendment rights. https://democracyforward.org/wp-content/uploads/2025/12/AAP-Complaint-as-Filed.pdf I think that lawsuit deserves further discussion.

As SCOTUS has opined in Hartman v. Moore, 547 U.S. 250, 256 (2006):

Official reprisal for protected speech “offends the Constitution [because] it threatens to inhibit exercise of the protected right,” Crawford-El v. Britton, 523 U. S. 574, 588, n.10 (1998), and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out, id., at 592; see also Perry v. Sindermann, 408 U. S. 593, 597 (1972) (noting that the government may not punish a person or deprive him of a benefit on the basis of his “constitutionally protected speech”).
Per Hartmann, retaliation by federal officials for the plaintiff's exercise of protected First Amendment rights can give rise to liability under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

A plaintiff alleging a First Amendment claim of retaliation must allege that “(1) he engaged in conduct protected under the First Amendment; (2) the defendant took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against him.”
Doe v. District of Columbia, 796 F.3d 96, 106 (D.C. Cir. 2015). The cancellation or non-renewal of a government contract in retaliation for the plaintiff's criticism of government officials on matters of public concern may suffice to establish liability for unconstitutional First Amendment retaliation. Board of County Comm'r Wabaunsee County v. Umbehr, 518 U.S. 668 (1996).

[not guilty]

With proper paragraph indents, the above comment should read:

There was some discussion on an open tread earlier this week of the American Academy of Pediatrics lawsuit against the U. S. Department of Health and Human Services and other defendants regarding the termination of various federal grants, which the Plaintiff alleges to be in unconstitutional retaliation for its exercise of First Amendment rights. https://democracyforward.org/wp-content/uploads/2025/12/AAP-Complaint-as-Filed.pdf I think that lawsuit deserves further discussion.

As SCOTUS has opined in Hartman v. Moore, 547 U.S. 250, 256 (2006):

Official reprisal for protected speech “offends the Constitution [because] it threatens to inhibit exercise of the protected right,” Crawford-El v. Britton, 523 U. S. 574, 588, n.10 (1998), and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out, id., at 592; see also Perry v. Sindermann, 408 U. S. 593, 597 (1972) (noting that the government may not punish a person or deprive him of a benefit on the basis of his “constitutionally protected speech”).

Per Hartmann, retaliation by federal officials for the plaintiff's exercise of protected First Amendment rights can give rise to liability under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

A plaintiff alleging a First Amendment claim of retaliation must allege that “(1) he engaged in conduct protected under the First Amendment; (2) the defendant took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against him.” Doe v. District of Columbia, 796 F.3d 96, 106 (D.C. Cir. 2015). The cancellation or non-renewal of a government contract in retaliation for the plaintiff's criticism of government officials on matters of public concern may suffice to establish liability for unconstitutional First Amendment retaliation. Board of County Comm'r Wabaunsee County v. Umbehr, 518 U.S. 668 (1996).

[John F. Carr]

A conservative group asked the Department of Justice to investigate programs at MIT limited to "womxn" only. The same group had previously filed a complaint about a program limited to women of color.

The Trump administration loves this stuff. Guidance from the DOJ says that adding a disclaimer "open to all" to otherwise discriminatory advertising is not sufficient.

https://equalprotect.org/case/equal-protection-project-v-massachusetts-institute-of-technology-womxn-programs/

[Kazinski]

Well I am sure the program is very welcoming to men.

They just have to present as women.

[Frank Drackman]

With most MIT women it's the other way around.

[John F. Carr]

Bloomberg Law has a year end review of judicial criticism of the Trump administration's conduct.

Government lawyers have been scolded for making misrepresentations in court, making legally flawed arguments, and sidestepping typical procedures. Their actions have prompted current and former judges to question if the government should still be entitled to the so-called “presumption of regularity,” the judicial doctrine that assumes the government is acting properly in court.

https://news.bloomberglaw.com/us-law-week/federal-judges-scold-doj-lawyers-over-courtroom-conduct-in-2025
https://apple.news/AmX2v_dHGSyKj9lL388XQIA

[not guilty]

There is a gossamer quality about a lawyer's reputation for integrity and candor with the Court. Once it is gone with a particular tribunal, it is gone for good.

The Trump lackeys at the Justice Department are tarnishing the reputation of the Department. I hope that the damage will not be permanent.

[Kazinski]

Tim Walz is going to dedicate the rest of his life to find the real killer fraudsters.

"We’ve spent years cracking down on fraud - referring cases to law enforcement, shutting down and auditing high-risk programs.

Trump keeps letting fraudsters out of prison.

To the national news just now paying attention, here’s what we’ve done to stop it."
https://x.com/Tim_Walz/status/2006109443893674228?s=20

I am sure Tim Walz is still very popular in Minnesota, but some observers are starting to suggest he needs to spend more time with his family:

"“The governor, I think, has done a very respectable job, a good job, in Minnesota for the years that he’s been here. But he clearly is vulnerable and in my view, he is riskier than any Democratic candidate that might run,” said Ember Reichgott Junge, a former Minnesota Democratic state senator and a political analyst in the state."

https://thehill.com/homenews/state-watch/5635849-walz-political-future-fraud-scandal/

[Sarcastr0]

Shades of Blackman telling Roberts to resign.

[ReaderY]

The Constitution gives Congress the power to provide for calling forth the militia to execute the laws of the United States, but doesn’t provide a similar power for the regular army. The clause also includes suppressing rebellions and repelling invasions.

Does this clause indicate a Framer preference for using the militia over the Army - the regular forces - for this purpose? If “regular forces” is interpreted to refer ro the regular Army, does this create a tension with this Constitutional prioritization?

[Frank Drackman]

Every year it's the same, 3 months in, and I'm still writing "5786" for the year

[Frank Drackman]

Remember the Southpark Episode where Randy Marsh goes on "Wheel of Fortune" in the Bonus Round he can win if he can answer

"People who Annoy You"
with one letter to go,
the word is "N_GGERS"
Randy answers (incorrectly) and hilarity ensues

So what was the correct answer??

Frank