I actually wrote this article yesterday before the government shutdown happened so I don’t really discuss that, but it sounds like we may end up going through all this again if the Trump regime goes through with its plans to use the shutdown to fire a bunch more people who are important, but who no one in charge is smart enough to understand what they do.

Remember when Elon Musk and his merry band of DOGE vandals were going to revolutionize government by firing everyone and slashing everything? Yeah, about that. Turns out when you fire people who actually know how to do essential jobs, you eventually need to… hire them back. Who could have predicted this shocking turn of events? (Spoiler: literally everyone who was paying attention.)

The General Services Administration is now desperately begging hundreds of federal employees to come back after Musk’s cost-cutting blitz left the agency “broken and understaffed.” These are the same workers who were supposedly dead weight that needed to be eliminated to save taxpayer money. Funny how that worked out.

The General Services Administration has given the employees — who managed government workspaces — until the end of the week to accept or decline reinstatement, according to an internal memo obtained by The Associated Press.

Those who accept must report for duty on October 6 after what amounts to a seven-month paid vacation, during which time the GSA in some cases racked up high costs — passed along to taxpayers — to stay in dozens of properties whose leases it had slated for termination or were allowed to expire.

A seven-month paid vacation. Let’s pause to appreciate the stunning “efficiency” here. These workers got fired, kept getting paid, and now the government is begging them to come back because—surprise!—they actually knew what they were doing, were needed, and when they were suddenly cut loose it turned out to be an expensive mess that made it harder for the government to function. Meanwhile, taxpayers footed the bill for both their salaries and the mounting costs of properties that couldn’t be properly managed without them.

Of course, this was pretty much what a ton of actual experts warned would happen.

This is exactly what happens when a bunch of overconfident, under-informed Silicon Valley bros assume that complex government operations are just inefficient startups waiting to be “disrupted.” GSA wasn’t some bloated tech company with redundant product managers—it’s the agency that manages thousands of federal work spaces. You know, actual critical infrastructure that keeps the government functioning.

And, of course, GSA actually had a strong and incredibly effective team that worked on efficiency… and Musk fired them all.

“Ultimately, the outcome was the agency was left broken and understaffed,” said Chad Becker, a former GSA real estate official. “They didn’t have the people they needed to carry out basic functions.”

Becker, who represents owners with government leases at Arco Real Estate Solutions, said GSA has been in a “triage mode” for months. He said the sudden reversal of the downsizing reflects how Musk and his Department of Government Efficiency had gone too far, too fast.

“Too far, too fast” is a charitable way to describe what amounts to institutional vandalism. This wasn’t thoughtful government reform—it was pure destruction for the sake of destroying anything a bunch of ignorant, incurious idiots didn’t understand, on the assumption that if they didn’t understand it, it couldn’t be that important.

They were wrong, and now taxpayers are left footing the bill.

Also, we’re not just talking about GSA here. There’s a pattern here of institutional destruction masquerading as reform. The rehiring wave is spreading across multiple agencies as the reality of Musk’s “efficiency” vision crashes into the actual requirements of running a government:

Last month, the IRS said it would allow some employees who took a resignation offer to remain on the job. The Labor Department has also brought back some employees who took buyouts, while the National Park Service earlier reinstated a number of purged employees.

The scale of this backtracking is breathtaking. When you’re rehiring at the IRS, Labor Department, National Park Service, and GSA simultaneously, that’s not fine-tuning—that’s admitting your entire approach was fundamentally broken.

In the end, the massive job cuts that were supposed to save money have, instead, created expensive messes that cost way more than the original “inefficiencies” they were meant to fix:

The administration slashed GSA’s headquarters staff by 79%, its portfolio managers by 65% and facilities managers by 35%, according to a federal official briefed on the situation. The official, who was not authorized to speak to the media, provided the statistics on condition of anonymity.

As a result of the internal turmoil, 131 leases expired without the government actually vacating the properties, the official said. The situation has exposed the agencies to steep fees because property owners have not been able to rent out those spaces to other tenants.

This is what happens when you mistake activity for achievement. DOGE fired nearly everyone who managed the government’s portfolio of real estate and then acted shocked when nobody was left to manage the portfolios. Now taxpayers are on the hook for “steep fees” because properties couldn’t be properly vacated. The government is paying rent on spaces it’s not using because the people who knew how to handle lease transitions were… fired to save money.

And now they’re desperately trying to hire them back so they won’t even save money on the decrease in salaries.

Even DOGE’s own metrics show how spectacularly this has backfired:

DOGE’s “Wall of Receipts,” which once boasted that the lease cancellations alone would save nearly $460 million, has since reduced that estimate to $140 million by the end of July, according to Becker, the former GSA real estate official.

From $460 million in supposed savings down to $140 million in actual savings—a 70% reduction in their own projections. This collapse in projected savings reveals the fundamental flaw in DOGE’s approach: they counted theoretical benefits from lease cancellations without accounting for the institutional knowledge required to execute those cancellations. The real number, factoring in transition costs, legal fees, and operational disruptions, is almost certainly negative. And that’s assuming you trust DOGE’s remaining figures. Which you probably shouldn’t.

This entire debacle perfectly illustrates the fundamental flaw in the “government is just a broken business” mentality. Government agencies exist to serve public functions that often don’t map neatly onto Silicon Valley efficiency models. When you fire the people who understand complex lease agreements, regulatory compliance, and interagency coordination, you don’t get innovation—you get extremely expensive chaos.

The particularly galling part is that these workers will now return to clean up the mess created by their own firing. They’ll spend months untangling lease complications, rebuilding institutional knowledge, and reestablishing relationships with contractors and other agencies. All of this remedial work will cost far more than their original salaries ever did.

The Government Accountability Office is now investigating this mess, which means taxpayers will also foot the bill for studying how badly DOGE screwed up:

The Government Accountability Office, an independent congressional watchdog, is examining the GSA’s management of its workforce, lease terminations and planned building disposals and expects to issue findings in the coming months, said David Marroni, a senior GAO official.

So we’re paying to study the costs of the effort that led to the cuts that didn’t save money but instead cost more money. It’s inefficiency all the way down.

This is what happens when you let tech bros cosplay as government reformers with no oversight or expertise. They mistake complexity for inefficiency, assume institutional knowledge is just bureaucratic dead weight, and believe that “disruption” is always improvement. The result is predictable: expensive chaos that requires the very expertise they dismissed to fix.

The federal employees now being begged to return have every right to negotiate better terms, demand back pay for the chaos they didn’t create, and insist on job security protections against future DOGE-style tantrums. They’re the ones who will clean up this mess, rebuild what was broken, and restore the basic functions that kept government working before Musk decided to reinvent the wheel as a square.

Rather than government efficiency we ended up with expensive performance art designed to satisfy the digitally-inspired fantasies of people who think running a government is like optimizing a social media algorithm. The only thing DOGE has efficiently accomplished is proving that some people’s expertise actually matters, even if—especially if—Silicon Valley billionaires don’t understand what that expertise does.

I am reminded of Rod Hilton’s viral Mastodon post from a few years back about Elon Musk:

If you can’t see that, it says:

He talked about electric cars. I don’t know anything about cars, so when people said he was a genius I figured he must be a genius.

Then he talked about rockets. I don’t know anything about rockets, so when people said he was a genius I figured he must be a genius.

Now he talks about software. I happen to know a lot about software & Elon Musk is saying the stupidest shit I’ve ever heard anyone say, so when people say he’s a genius I figure I should stay the hell away from his cars and rockets.

I get the feeling that a lot of government workers who previously thought he was a genius may also now choose to stay away from Musk’s cars and rockets. As they should.

We’ve spent plenty of time talking about various people who are failing to meet this moment, but I will say that a number of district court judges have really been stepping up.

The latest example is Reagan-appointed conservative Judge William Young (who had previously—somewhat sarcastically—mocked the Supreme Court’s ridiculous abuse of the shadow docket), who was handling the American Association of University Professors’ lawsuit against the Trump administration over its attempts to criminalize and punish students and professors for the apparent crime of expressing support of Palestinians or criticism of the actions of the government of Israel.

While others are folding and capitulating, Judge Young has a clear-eyed view of what exactly is happening right now. And he’s stepping up while others are cowering.

The full 161-page ruling from Judge Young almost has to be read to be believed. It should go down in history as a hugely meaningful and consequential ruling, though there’s a decent enough chance that the Supreme Court will effectively delete it via an unexplained shadow docket ruling in a month or two).

The ruling starts out (and ends) in a manner I’ve never seen before. Judge Young posts a ridiculous threatening post card he received in response to one of his earlier rulings against the Trump admin:

As you can see, the postcard (received June 19th or just days after Young had ordered the NIH to restore grants that Donald Trump illegally blocked) is a handwritten message saying

Trump has pardons and tanks…

What do you have?

Judge Young then structures the ruling as a reply to the sender:

Dear Mr. or Ms. Anonymous,

Alone, I have nothing but my sense of duty.

Together, We the People of the United States –- you and me — have our magnificent Constitution.

Here’s how that works out in a specific case –-

And then goes into the ruling.

It starts out with Young quoting the entirety of the text of the First Amendment noting that “its words carved in New Hampshire granite on the exterior of the very courthouse in which this Court sits” before pointing out that on his first day back in office, Donald Trump issued an executive order purporting to “restore free speech” which many of us have called out as a complete farce, and now Judge Young is using his position to call that out as well.

President Trump here makes clear that, in his view, the First Amendment’s protection of freedom of speech applies to American citizens alone, and to an unconstitutionally narrow view of citizenship at that.

This case -– perhaps the most important ever to fall within the jurisdiction of this district court –- squarely presents the issue whether non-citizens lawfully present here in United States actually have the same free speech rights as the rest of us. The Court answers this Constitutional question unequivocally “yes, they do.” “No law” means “no law.” The First Amendment does not draw President Trump’s invidious distinction and it is not to be found in our history or jurisprudence…. No one’s freedom of speech is unlimited, of course, but these limits are the same for both citizens and non-citizens alike.

He finds that Secretary of State Marco Rubio and Homeland Security boss Kristi Noem clearly conspired to punish people for their speech, violating the First Amendment.

Having carefully considered the entirety of the record, this Court finds by clear and convincing evidence that the Secretary of Homeland Security Kristi Noem and the Secretary of State Marco Rubio, together with the subordinate officials and agents of each of them, deliberately and with purposeful aforethought, did so concert their actions and those of their two departments intentionally to chill the rights to freedom of speech and peacefully to assemble of the non-citizen plaintiff members of the plaintiff associations.

There’s a lot of background specifically on how Homeland Security folks were told to investigate campus protestors in order to figure out any excuse to strip them of their visas. Over and over again, we learn about students targeted for their obviously First Amendment-protected speech, some of whom we’ve already written about, but about many, many more as well.

In recounting the ridiculous kidnapping of Rumeysa Ozturk, the judge recounts how masked agents just grabbed her off the street, expressing disbelief that this kind of nonsense could happen in America.

The agents then all masked up, with the exception of one agent who already had a hood covering his head. Öztürk did not resist. Her wrists were cuffed behind her back and, taking her arms, the agents led her to a car which then sped away out of Massachusetts.

At 3:30 in the video, a voice can be heard asking, “Why are you hiding your faces?” Öztürk Arrest Video 3:30.

A fair question.

Judge Young notes that even ICE people were perplexed by all of this nonsense:

Again, there was concern about the novelty of the arrest. ICE Assistant Special Agent in Charge had never seen that type of direction from the State Department and HSI headquarters, and while he assumed the direction to be sufficient because it was coming from the top, that agent consulted with a lawyer from ICE’s Office of the Principal Legal Advisor.

After dozens of pages recounting nonsense arrests, and plenty of quotes of Marco Rubio cosplaying as a thuggish censorial authoritarian, the judge finally tees off on how this all seems like bullshit. He notes that government employees who testified all appeared to be “decent, credible dedicated non-partisan professionals” but that they were “weaponized by their highest superiors to reach foregone conclusions for most ignoble ends.”

And then puts the blame on Rubio and Noem for their clear intimidation plan designed to create real chilling effects on pro-Palestinian protests:

It was never the Secretaries’ immediate intention to deport all pro-Palestinian non-citizens for that obvious First Amendment violation, that could have raised a major outcry. Rather, the intent of the Secretaries was more invidious — to target a few for speaking out and then use the full rigor of the Immigration and Nationality Act (in ways it had never been used before) to have them publicly deported with the goal of tamping down pro-Palestinian student protests and terrorizing similarly situated non-citizen (and other) pro-Palestinians into silence because their views were unwelcome.

The Secretaries have succeeded, apparently well beyond their immediate intentions. One may speculate that they acted under instructions from the White House, but speculation is not evidence and this Court does not so find. What is clear, however, is that the President may not have authorized this operation (or even known about it), but once it was in play the President wholeheartedly supported it, making many individual case specific comments (some quite cruel) that demonstrate he has been fully briefed.

As an aside, the court puts in a footnote that Trump has engaged in a “full-throated assault on the First Amendment across the board under the cover of an unconstitutionally broad definition of Anti-Semitism.”

And that’s when Judge Young really starts cooking. He points out that Trump has “violated his sacred oath” and then talks about the current state of the US government, and how too many people have been lulled into complacency over all this. He highlights how the entirety of the US experiment appears to be on the brink because so few people are willing to step up and speak out in the face of such unconstitutional attacks on everything America is supposed to hold dear.

In the golden age of our democracy, this opinion might end here. After all, the facts prove that the President himself approves truly scandalous and unconstitutional suppression of free speech on the part of two of his senior cabinet secretaries. One would imagine that the corrective would follow as a matter of course from the appropriate authorities. Yet nothing will happen. The Department of Justice represents the the President, and Congress is occupied with other weighty matters.

Nor will there be any meaningful public outcry. There is an amalgam of reasons. The President in recent months has strikingly unapologetically increased his attack on First Amendment values, balked here and there by District Court orders. The issues presented here commenced last March.

ICE has successfully persuaded the public that it is our principal criminal law enforcement agency. Americans have an abiding faith in our criminal justice system. After all, ultimately they run it as jurors. “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury[.]” U.S. Const. art. III, § 2, cl. 3. Despite the meaningless but effective “worst of the worst” rhetoric, however, ICE has nothing whatever to do with criminal law enforcement and seeks to avoid the actual criminal courts at all costs. It is carrying a civil law mandate passed by our Congress and pressed to its furthest reach by the President. Even so, it drapes itself in the public’s understanding of the criminal law though its “warrants” are but unreviewed orders from an ICE superior and its “immigration courts” are not true courts at all but hearings before officers who cannot challenge the legal interpretations they are given. Under the unitary President theory they must speak with his voice. The People’s presence as jurors is unthinkable.

From there, he starts talking about how totally fucked up it is that ICE agents are running around in masks, which he calls out as “dishonorable” and “cowardly”! No euphemisms. No mealy-mouthed language. Just calling out how masked agents arresting students for their speech is fucked up:

And there’s the issue of masks. This Court has listened carefully to the reasons given by Öztürk’s captors for masking-up and has heard the same reasons advanced by the defendant Todd Lyons, Acting Director of ICE. It rejects this testimony as disingenuous, squalid and dishonorable. ICE goes masked for a single reason — to terrorize Americans into quiescence. Small wonder ICE often seems to need our respected military to guard them as they go about implementing our immigration laws. It should be noted that our troops do not ordinarily wear masks. Can you imagine a masked marine? It is a matter of honor — and honor still matters. To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police. Carrying on in this fashion, ICE brings indelible obloquy to this administration and everyone who works in it. “We can not escape history,” Lincoln righty said. “[It] will light us down in honor or dishonor, to the latest generation.” Abraham Lincoln, Second Annual Message to Congress (Dec. 1, 1862).

He then goes on to point out that anyone who claims it doesn’t matter, since Rubio and Noem are targeting non-citizens, is full of shit:

Finally, perhaps we don’t much care. After all, these Plaintiffs, a group of non-citizen pro-Palestinians are relatively small compared to the much larger interest groups who have every right vigorously to espouse the cause of the State of Israel. Palestine is far away and its people are caught up in the horrors of a modern war with heavy ordinance wreaking massive indiscriminate destruction, a war that is not one of our making. Why should we care about the free speech rights of their compatriots here among us?

Here’s why:

The United states is a great nation, not because any of us say so. It is great because we still practice our frontier tradition of selflessness for the good of us all. Strangers go out of their way to help strangers when they see a need. In times of fire, flood, and national disaster, everyone pitches in to help people we’ve never met and first responders selflessly risk their lives for others. Hundreds of firefighters rushed into the Twin Towers on 9/11 without hesitation desperate to find and save survivors. That’s who we are. And on distant battlefields our military “fought and died for the men [they] marched among.”

Then we finally get to the meat of the ruling: this is a blatant attack on the First Amendment and the Administrative Procedure Act as well:

This Court rules that the Plaintiffs have shown by clear and convincing evidence that Secretaries Noem and Rubio have intentionally and in concert implemented Executive Orders in 14161 and 14188 a viewpoint-discriminatory way to chill protected speech. This conduct violated the First Amendment. The coercion line of case law bolsters this conclusion, and the Public Officials’ threats to continue detaining, deporting, and revoking visas based on political speech serves as circumstantial evidence that such enforcement exists, is viewpoint discriminatory, and has objectively chilled the Plaintiffs’ speech, but the campaign of threats itself, because not directed specifically at the Plaintiffs, does not separately violate the Constitution under this precise line of case law.

This mode of enforcement policy also violates the APA because, for the same reasons, it is contrary to constitutional right. It is also arbitrary or capricious because it reverses prior policy without reasoned explanation or consideration of reliance interests, and is based on statutes that have never been used in this way.

There are some questions as to whether or not the plaintiffs here have standing themselves, but Judge Young finds that they do based on the chilling effects created by the government and rejects the government’s claims that the chilling effects are only speculative, because… duh:

On the merits, the Court disagrees that the Plaintiffs’ standing witnesses have shown only subjective fear and unreasonable self-censorship. In particular, standing witness Professor Al-Ali, who is a lawful permanent resident and a member of both AAUP and MESA, testified to a long history of scholarly work and advocacy on issues related to Palestine, including signing and in one case drafting open letters calling for, among other things, Brown University’s divestment from companies involved in Israel’s military occupation of Palestine, the dropping of legal charges against student protestors in aftermath of the October 7 attacks, and a ceasefire in Gaza…. Professor Al-Ali credibly testified that news of Khalil and Öztürk’s arrests, in addition to the comment from President Trump that Khalil’s arrest would be one of “many,” led her to alter international travel plans and to contact an immigration lawyer to track her travel abroad, to decline a public-facing leadership opportunity that might have more firmly associated her with pro-Palestine human rights advocacy, to cease her previous practice of signing open letters related to these issues, to forego specific research projects related to Palestine and funded research opportunities requiring travel, and to stop attending protests and assisting in negotiations between Brown University and its students as she had previously done, all out of fear of being targeted for her pro-Palestinian speech and association with such views.

It also notes, as we have in the past, that First Amendment precedent is clear that non-citizens in the US are still protected under the First Amendment, even if the contours of that protection are a bit more “complex” than for citizens, but notes that almost all of the cases that suggest non-citizens have fewer rights are “red scare” cases that are an embarrassment to American history.

Even assuming that the First Amendment law of the second Red Scare era still applies to noncitizens in its entirety, the Public Officials’ reliance on these Red Scare era cases only accentuates two important distinctions between this case and the cases on which the Public Officials most rely. First, Harisiades carefully examined a specific congressional determination that the organization of which the plaintiffs were former members advocated the “methodical but prudent incitement to violence,” and ultimately “incitement to violent overthrow” of the United States government. Harisiades, 342 U.S. at 592. Here, there is no alleged membership of any organization and no congressional determination specific to it or to the targeted noncitizens, much less a determination that the targeted noncitizens are involved in advocating for the government’s violent overthrow, 342 U.S. at 592. Second, Mandel and Hawaii, which the Public Officials cite for the proposition that all burdens on noncitizens’ First Amendment rights are subject to only a “facially legitimate and bona fide” reason standard of review, are exclusion cases, and “[t]he distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law,” Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Gastelum-Quinones v. Kennedy, 374 U.S. 469, 479 (1963) (“[D]eportation is a drastic sanction, one which can destroy lives and disrupt families, and . . . a holding of deportability must therefore be premised upon [meaningful evidence of the relevant violation].”). In any case, political speech is not, on its own, a facially legitimate reason for expelling persons from this country

And thus, the government’s attempt to say “but these foreigners have no First Amendment rights” not only fails, Judge Young also points out that Rubio and Noem’s actions are unprecedented in how unconstitutional they are:

For these reasons, this Court rules that here the Plaintiffs have shown that Secretaries Noem and Rubio are engaged in a mode of enforcement leading to detaining, deporting, and revoking noncitizens’ visas solely on the basis of political speech, and with the intent of chilling such speech and that of others similarly situated. Such conduct is not only unconstitutional, but a thing virtually unknown to our constitutional tradition.

As for the exceptionally weak argument that speech supporting Palestine or criticizing Israel was somehow tantamount to inciting imminent lawless action (and thus, not protected by the First Amendment), Judge Young points out that no one involved in the process seemed to believe that, or they would have done an analysis of the speech to see if it met that criteria:

the Court saw virtually no evidence that anyone along the way seriously questioned whether pure political speech in support of Palestine or against Israel could be construed as support for terrorism, whether support for terrorism as such could be grounds for the adverse actions that were contemplated, or whether any targeted individual had met any circumscribed, ascertainable standard of speech or conduct that might be grounds for these actions. Trial produced no evidence that the challenged procedures contemplated the speech to have been as incitement to imminent violence or, per the terms of an older test, clear and present danger. Rather, the subordinates spoke the language of “violat[ing]” the Executive Orders, as if they were the law, and of “align[ing] with the executive order’s focus on deporting ‘Hamas sympathizers,’” as if “Hamas sympathizers” were a self-interpreting term. They appear to have treated “antisemitism,” which, however heinous, is, without more, protected speech, as something that, in essence, one simply knows when one sees it. In short, if it looked like the Executive Orders might have disapproved of it, that was potential grounds for deportation.

And Judge Young pulls out an “ignorance of the law is no excuse” point in case the government wants to claim it somehow didn’t realize it was violating the First Amendment rights of the people it was targeting:

But just as a general matter ignorance of the law is no excuse, the Secretary of State’s and other high officials’ apparent indifference as to whether support or sympathy for terrorism, as opposed to material support, could be grounds for adverse action by law, or whether such support could be construed to include the voicing of support for Palestine or objection to the policies of the State of Israel, is no defense to the charge that they have done what they have repeatedly said they were doing: intentionally targeted political speech in order to stop campus protests.

The judge also notes that there are really only two possibilities: US officials are totally incompetent in their investigations… or they directly chose to target visa holders for their protected speech:

Due to the frictionless quality described above, once one was on the lists, one was potentially subject to adverse action so long as, it seems, there was any online mention of one’s pro-Palestine activities. The Public Officials’ argument that few of the originally investigated names were targeted is little comfort. Those names that were passed up the chain of command by the investigating subordinates were almost universally approved for adverse action, and, again, the reasons for being passed up the chain of command included any form of online suggestion that one was “pro-Hamas,” including Canary Mission’s own anonymous articles. Watching the process at work, and not wishing to credit the Public Officials with incompetence, it would require a remarkable naivete not to conclude that this process worked as intended.

The Court calls out the famous Bantam Books ruling along with last year’s Vullo SCOTUS ruling (which we keep talking about lately) to highlight that the First Amendment is pretty clear that the government cannot force third parties to chill speech on its behalf. And, the court specifically calls out the vague lack of standards here as making it all more threatening, since it creates a more impactful chilling effect, since people may be too fearful to express anything they think might earn disapproval from the Trump administration.

Because “a government official cannot do indirectly what she is barred from doing directly,” Vullo, 144 S.Ct. at 1328, the Public Officials may not in effect regulate speech by means of an unwritten enforcement procedure implementing a facially lawful Executive Order, as if speech codes were permissible so long as they were not written down. Again, an unwritten speech code seems, if anything, potentially more threatening to core constitutional values than a written one, and the ambiguity recognized and criticized by several courts of appeals in the recent run of campus speech code cases discussed above, see supra Section III.A.1. The Plaintiffs’ noncitizen members here have all been made to understand that there are certain things that it may be gravely dangerous for them to say or do, but have not been told precisely what those things are (or are not); the diffuseness and ambition of this coercion campaign do not render it less constitutionally suspect.

He also calls out the insanity of sending government agents used to tracking down and arresting hardened criminals and terrorists to… arrest students for writing op-eds. The only reason to do that is to create chilling effects on speech:

This Court credits the testimony of the agents involved that at least some of these practices were not per se abnormal for HSI arrests and detentions; but this only begs the question, however, why special agents previously deployed for sensitive intelligence matters have been deployed to enforce this particular policy of, in essence, rounding up campus protestors and op-ed writers? Or why, having observed the first arrests that were made under this policy and seen that these arrests by these agents involved an obvious, highly publicized atmosphere of secrecy and fright, the Public Officials responsible for it did not adjust the policy to make the arrests less obviously chilling? Or why the members of the inter-agency advisory council whom the Public Officials will not name, did not adjust the policy to make the arrests less obviously chilling? Again, deprived of any real attempted explanation as to what the members of this council intended by the selected means of these arrests, this Court must draw the most reasonable inference: that the manner and method of their execution was adopted, or at least approved of once the first such arrest had been made, in part intentionally to chill the speech of other would be pro-Palestine and anti-Israel speakers, including Plaintiffs’ noncitizen members.

The judge also rejects any notion that purely pro-Palestinian or anti-Israel speech should be deemed as “pro-terrorism.”

To conclude, and to be clear, this Court has no sympathy for terrorism, or for those who genuinely support it. It has proudly sentenced terrorists, see United States v. Reid, 206 F. Supp. 2d 132 (2002), and understands its own role as one small part of a federal scheme that exists significantly to protect this Nation’s national security. Nor does the Court take a position on any foreign conflict or express special sympathy for any side of any political debate, foreign or domestic. Rather, the judicial role is limited to safeguarding the rights of all persons lawfully present in this country. This includes the freedom of speech that allows those persons to understand each other and to debate. If “terrorist” is interpreted to mean “pro-Palestine” or “anti-Israel,” and “support” encompasses pure political speech, then core free speech rights have been imperiled.

As for the claim that foreigners in the US are here at the whims of the US government and can be removed for any reason, that’s… not how any of this works. First Amendment rights are rights, not privileges. Furthermore, the judge notes, how the government treats “guests” is still limited by the restraints of the Constitution.

Throughout these proceedings, the Public Officials have emphasized that the noncitizens at issue are present at our grace. They describe their presence here as a privilege, which can be revoked for almost any reason, or at least when we begin to feel we would not have invited them here had we known what they were going to say to us. This Court in part must agree: non-citizens are, indeed, in a sense our guests. How we treat our guests is a question of constitutional scope, because who we are as a people and as a nation is an important part of how we must interpret the fundamental laws that constrain us.

And then there’s just the basic fact that it is authoritarian countries that imprison people based on their speech, and a huge part of the Constitution was supposed to show how we were better than that:

We are not, and we must not become, a nation that imprisons and deports people because we are afraid of what they have to tell us. See Dennis v. United States, 341 U.S. 494 554-55 (1951) (Frankfurter, J., concurring in the judgment) (describing, in the context of the second Red Scare, “a danger that something may occur in our own minds and souls which will make us no longer like the persons by whose efforts this republic was founded and held together, but rather like the representatives of that very power we are trying to combat: intolerant, secretive, suspicious, cruel, and terrified of internal dissension because we have lost our own belief in ourselves and in the power of our ideals”)(quoting George F. Kennan, Where do You Stand on Communism?, New York Times Magazine, May 27, 1951, at 53)); Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (“Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, . . . the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.”); Carlson v. Landon, 342 U.S. 524, 554 (1952) (Black, J., dissenting) (“To put people [law-abiding people] in jail for fear of their talk seems to me to be an abridgment of speech in flat violation of the First Amendment. . . . My belief is that we must have freedom of speech, press and religion for all or we may eventually have it for none. I further believe that the First Amendment grants an absolute right to believe in any governmental system, discuss all governmental affairs, and argue for desired changes in the existing order. This freedom is too dangerous for bad, tyrannical governments to permit. But those who wrote and adopted our First Amendment weighed those dangers against the dangers of censorship and deliberately chose the First Amendment’s unequivocal command that freedom of assembly, petition, speech and press shall not be abridged.”).

Of course, it’s only on page 148 of this ruling that the judge has to grapple with the “but what now?” question:

It is not enough for the Court simply to determine that the plaintiffs’ First Amendment constitutional rights have been violated. The Constitution is not self-effectuating. There must be some prospect of an effective remedy (we call it “redressability”) in order to proceed. Diamond Alternative Energy, LLC v. Env’t Prot. Agency, 145 S. Ct. 2121, 2133 (2025) (“The . . . redressability requirement generally serves to ensure that there is a sufficient relationship between the judicial relief requested and the injury suffered.”)(citations and quotations omitted). Otherwise, this Court ought terminate these proceedings at this point lest it become no more than a divisive scold. When this Court denied the motion to dismiss herein, AAUP, 780 F. Supp. 3d at 379, it thought an effective remedy might be obtainable; today it is not so sure.

That last sentence sure sounds ominous. Because it is. Judge Young then speaks quite clearly about the singular danger that is our authoritarian President:

The reason is the rapidly changing nature of the Executive Branch under Article II of our Constitution and, while he is properly not now a defendant in these proceedings, the nature of our President himself.

Again, I need to remind you (this is a long piece after all), this is a staunch conservative, Reagan-appointed judge. And he appears quite reasonably concerned about what is going on in DC:

We’ve never had a President like President Trump. He espouses, [and] he’s the first President in our history to espouse, a concept of the unified Presidency. The idea is that the President of the United States — and certainly he’s duly-elected — after a full and fair election, the President of the United States — he is the single, superior, executive, motive force for all federal employees employed under Article II

He then calls out the lack of clothes on this emperor and all those around him who continue to agree with him that he is supremely well-dressed in the greatest clothing ever made:

Triumphalism is the very essence of the Trump brand. Often this is naught but hollow bragging: “my perfect administration,” wearing a red baseball cap in the presidential oval office emblazoned “Trump Was Right About Everything,” or most recently depicting himself as an officer in the First Cavalry Division. Unfortunately, this tends to obscure the very real and sweeping changes President Trump has wrought in his first year in office. If change is a mark of success, President Trump is the most successful president in history.

He ignores everything . . .

This is indubitably true. The Constitution, our civil laws, regulations, mores, customs, practices, courtesies — all of it; the President simply ignores it all when he takes it into his head to act. A broad swath of our people find this refreshing in what they may feel is an over regulated society. After all, lawyers seem to have a penchant for telling you what you can’t do. President Trump simply ignores them.

And he calls out how successful, if unconstitutional, Trump’s bullying has proven:

Small wonder then that our bastions of independent unbiased free speech –- those entities we once thought unassailable –- have proven all too often to have only Quaker guns. Behold President Trump’s successes in limiting free speech -– law firms cower, institutional leaders in higher education meekly appease the President, media outlets from huge conglomerates to small niche magazines mind the bottom line rather than the ethics of journalism.

But it’s all just bluster and bullying in the end, in support of a mad king who threatens anyone who points out that he’s as naked as the moment he was born:

While the President naturally seeks warm cheering and gladsome, welcoming acceptance of his views, in the real world he’ll settle for sullen silence and obedience. What he will not countenance is dissent or disagreement. He recognizes, of course, that there are legislative and judicial branches to our government, co-equal even to a unitary Presidency. He meets dissent from his orders in those other two branches by demonizing and disparaging the speakers, sometimes descending to personal vitriol.

Dissent elsewhere among our people is likewise disfavored, often in colorful scurrilous terms. All this the First Amendment capaciously and emphatically allows.

When he drifts off into calling people “traitors” and condemning them for “treason,” however, he reveals an ignorance of the crime and the special burden of proof it requires. More important, such speech is not protected by the First Amendment; it is defamatory.

Of course, he notes, somewhat sarcastically, that the Supreme Court has deemed the President immune from civil suits (this is from the Nixon era, Trump v. the US is about criminal matters).

Judge Young also calls out just how crazy it is that our President, who is supposed to be the President of all the people, defending the Constitution, is, instead, focused on petty revenge and personal scores.

Everything above in this section is necessary background to frame the problem this President has with the First Amendment. Where things run off the rails for him is his fixation with “retribution.” “I am your retribution,” he thundered famously while on the campaign trail. Yet government retribution for speech (precisely what has happened here) is directly forbidden by the First Amendment. The President’s palpable misunderstanding that the government simply cannot seek retribution for speech he disdains poses a great threat to Americans’ freedom of speech. It is at this juncture that the judiciary has robustly rebuffed the President and his administration.

He then cites the long list of cases the President has lost (such as those brought by law firms he attacked, universities he denied funding to, media organizations he has punished for their speech).

Which brings us back to the question of how can the judge make things right in this case, covering these abuses, when it appears to be the clear position of this administration to violate the First Amendment rights of anyone they deem insufficiently loyal.

He notes there will need to now be a separate remedy phase to figure out what can be done, while noting the limits in his own authority. He cannot limit the speech of Donald Trump or Rubio or Noem. And he can’t block them from “properly” enforcing the laws passed by Congress.

So as he moves on to hold future hearings regarding remedies, he quotes Ronald Reagan’s inaugural address when he became California’s governor:

Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people.

But then notes that Trump appears to view that same statement in a different light: one where the fragility of freedom means that it is his to crush and destroy:

I’ve come to believe that President Trump truly understands and appreciates the full import of President Reagan’s inspiring message –- yet I fear he has drawn from it a darker, more cynical message. I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected.

Is he correct?

That is a pretty bold provocation in a ruling against the government from a district court judge. I can’t recall ever seeing anything like it.

And I’d be remiss if I didn’t point out that Judge Young also calls out the cost of lawfare in a footnote, and how chilling it can be on the speech of people threatened with lawfare:

The federal courts themselves are complicit in chilling would-be litigants. It is not that we are less than scrupulously impartial. We demonstrate our judicial independence and utter impartiality every day whatever the personal cost. It is, rather that in our effort to be entirely fair, thorough, and transparent, we are slow, ponderously slow. This in turn means we are expensive, crushingly so for an individual litigant. Frequently, the threat of federal civil litigation, however frivolous, is enough severely to harass an individual and cause his submission.

Emphasis in the original by Judge Young. I find this notable not for the reason Judge Young calls it out (he uses it to again call out the Supreme Court’s shadow docket adventures), but because so often when people discuss this very aspect of things like SLAPP lawsuits, judges dismiss it as no big deal, and insist that their slow efforts are really not worth bothering about, and that anybody should be able to figure out how to deal with it.

Just having a judge acknowledge otherwise is a surprise, but nice to see.

And thus we finally get to the end of the ruling, and the judge returns to the threatening postcard he received with which he started off this ruling, closing it out thusly:

If you can’t see that it says:

I hope you found this helpful. Thanks for writing. It shows you care. You should.

Sincerely & respectfully,

Bill Young

P.S. The next time you’re in Boston [the postmark on the card is from the Philadelphia area] stop in at the Courthouse and watch your fellow citizens, sitting as jurors, reach out for justice. It is here, and in courthouses just like this one, both state and federal, spread throughout our land that our Constitution is most vibrantly alive, for it is well said that “Where a jury sits, there burns the lamp of liberty.”

This is quite a memorable ruling—not just for its legal conclusions, but for how it models what “meeting the moment” actually looks like. Judge Young doesn’t just issue a dry legal opinion; he directly confronts the authoritarian playbook with constitutional principles, calls out cowardice and dishonor where he sees it, and frames the stakes in terms ordinary Americans can understand.

While it will not convince anyone in the Trump regime or the MAGA faithful, it demonstrates something crucial: that there are still people in positions of authority willing to use that authority to defend constitutional principles, even when—especially when—it’s uncomfortable or dangerous to do so.

Judge Young’s direct challenge to his anonymous correspondent—”I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values”—should be read as both a warning and a call to action. The question isn’t just whether Trump is right about our divisions, but whether the rest of us have the courage to prove him wrong.