Opinion | The MAGA Culture War Comes for Georgetown Law

This might sound like a funny thing to say, but I’ve rarely read a more unconstitutional letter.

On Monday, Ed Martin, the interim U.S. attorney for the District of Columbia, sent the dean of Georgetown University Law Center, a Catholic law school, a letter that said, “It has come to my attention reliably that Georgetown Law School continues to teach and promote D.E.I. This is unacceptable.”

Martin said that he’d begun an “inquiry” into the school and demanded to know whether it had eliminated all D.E.I. — which he does not define, but in right-wing circles tends to refer to any action at all designed to increase diversity or honor historically marginalized people — from the school and its curriculum. He also asked, “If D.E.I. is found in your courses or teaching in any way, will you move swiftly to remove it?”

This short letter, which was addressed to William Treanor, the dean of the law school, continued with the declaration that “no applicant for our fellows program, our summer internship or employment in our office who is a student or affiliated with a law school or university that continues to teach and utilize D.E.I. will be considered.”

Even a first-year law student knows that the federal government cannot dictate the viewpoint and curriculum of a private Christian school, yet here was a federal prosecutor opening an inquiry into a Jesuit school’s protected speech.

But then, on Thursday, Donald Trump issued an executive order that may well have been even worse. He targeted Perkins Coie — a leading law firm with prominent liberal and Democratic clients — with comprehensive sanctions, in large part because it had engaged in legal work that Trump did not like.

“Notably, in 2016 while representing failed presidential candidate Hillary Clinton,” the order says, “Perkins Coie hired Fusion GPS, which then manufactured a false ‘dossier’ designed to steal an election. This egregious activity is part of a pattern. Perkins Coie has worked with activist donors including George Soros to judicially overturn popular, necessary and democratically enacted election laws, including those requiring voter identification.”

The order strips security clearances from Perkins Coie lawyers (an action that would inhibit their ability to represent clients engaged in serious disputes involving the government) “pending a review of whether such clearances are consistent with the national interest.” It also limits Perkins Coie employees’ access to federal buildings, and it blocks the federal government from hiring Perkins Coie employees.

Trump’s order was his second major attack on a private law firm. Last month, he suspended the security clearances of attorneys at Covington & Burling, a large multinational law firm, who provided pro bono legal services to Jack Smith, the special counsel who filed criminal charges against Trump for his efforts to overturn the 2020 election and for his removing classified documents from the White House and obstructing efforts to retrieve them from his home.

The constitutional problem in each case is the same: The Trump administration is targeting the president’s perceived political opponents for investigation and punishment.

This is not new. Late last month, the Times editorial board wrote an outstanding editorial identifying a series of attacks on free speech from the Trump administration, including its decision to retaliate against The Associated Press for refusing to identify the Gulf of Mexico as the Gulf of America and its decision to handpick the news outlets that make up the press pool that follows and covers Trump where there isn’t room for the full press corps.

The attacks on free speech and the First Amendment are so numerous that it’s difficult to keep up. And the attacks aren’t just against the prominent players in the political arena. Trump will take on religious institutions as well, even though their rights are just as firmly protected by the First Amendment.

On Feb. 24, my friend Theodore Chuang, a federal district judge in Maryland, entered an injunction against a Trump administration policy that removed restrictions on immigration enforcement actions in houses of worship.

Trump had reversed a decades-old policy that protected houses of worship from immigration raids in the absence of emergency circumstances — an imminent risk of violence, for example, or the hot pursuit of a person who poses a public safety threat, or a national security risk.

The previous policy respected the religious free exercise of a number of faith groups, including Christians, who believe there are religious mandates to care for refugees and other vulnerable immigrants. The new policy, in Chuang’s words, “abruptly removed all such limitations and safeguards and instead left decisions on whether to conduct such enforcement actions to the unilateral discretion of individual officers.”

In other words, if federal agents wanted to raid a church during a worship service, under Trump’s scheme, they could.

Chuang found that the Trump administration policy’s “lack of any meaningful limitations or safeguards” on enforcement activity chilled the plaintiffs’ First Amendment rights in part by deterring believers from attending worship services.

For all of Trump’s talk about rooting out “anti-Christian bias” from the United States, one of his administration’s first executive actions violated the free speech and religious freedom rights of several Christian congregations. It turns out that Trump wants to protect only his Christian allies from government reprisals. Dissenting believers will face his wrath, and the wrath of the state.

Political and religious speech are the beating heart of the First Amendment. Protections for political speech even predate the founding of the United States. The English Bill of Rights of 1689 protected the right of British subjects to petition the king and protected free speech in Parliament.

There is a reason the founders enshrined these values first. It’s why viewpoint discrimination is the most disfavored form of government censorship.

Plaintiffs who can prove that they were targeted because of their political or religious perspective almost always win their case. And make no mistake, attacks on Georgetown Law based on its alleged advocacy of or instruction in D.E.I., or punishment for Perkins Coie and Covington & Burling attorneys for their work with Democrats or Jack Smith, each represent textbook cases of viewpoint discrimination.

One of the most frustrating elements of our post-election national conversation was the insistence in some quarters that the election represented a repudiation of censorship and cancel culture. It did not.

Instead, nearly half the American people voted against the party that was actively moving away from extremism — including the far-left censorship regime that has long afflicted America’s elite campuses — and instead voted for the party that didn’t just weaponize government against dissenting voices (through book bans, various anti-“woke” bills and prohibitions against drag shows), it also created an atmosphere of fear and intimidation against its political enemies.

The MAGA movement relentlessly attacked election workers, school board members and anyone else who defied its will to power or dissented from MAGA’s version of American history. Trumpian political correctness is becoming so absurd that The Associated Press reported on Thursday that at the Pentagon “tens of thousands of photos and online posts” have been “marked for deletion,” including a photo of Enola Gay, the B-29 bomber that dropped the atomic bomb on Hiroshima, presumably because its name included the word “gay.”

I spent much of my legal career combating censorship and defending free speech and religious liberty. I defended people from across the political spectrum, but I was also very familiar with censorship from the left. I filed lawsuit after lawsuit against universities that, among other things, imposed speech codes, discriminated against Christian student groups and retaliated against conservative professors.

When I filed those cases, I believed the American right had a basic commitment to individual freedom. Today, it does not. It is far more committed to fighting the left now than it was to defending liberty then. As the right rejected libertarianism, it turned against the First Amendment.

And now Trump’s administration and his MAGA movement are the most dangerous and powerful censors in the United States.

When an administration blatantly attacks the First Amendment, it attacks our national identity. The First Amendment is core to the idea of the United States of America. The Supreme Court has protected it even in our nation’s darkest and most dangerous moments.

In a 1943 case called West Virginia v. Barnette, the Supreme Court upheld the right of two sisters who were Jehovah’s Witnesses to refuse to salute the flag and recite the Pledge of Allegiance at school. In defending their liberty, the court wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.”

The court was far from perfect in World War II. The year after Barnette, it decided Korematsu v. United States, which upheld the internment of more than 100,000 Japanese Americans. But the Barnette decision endures, and its words resonate still today.

It is when our disagreements are sharpest that our liberties are most precious. Or, as the Supreme Court said in Barnette: “But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.” That’s where Trump wants his opponents — in the shadows, suffering for their failure to support the man who would be king.

If Americans don’t have to salute the flag during a war for the survival of Western civilization, then they certainly don’t have to genuflect to Trump or Trumpism as a condition for exercising their unalienable rights.

Or put another way: If our liberties can survive a world war, then they can and should survive a culture war.