Free Speech for Me, Consequences for Thee

THE LIES THAT TEACH US TO LET GO  |  DAY 4 OF 6

The First Amendment was designed for exactly this moment. The question is whether we apply it consistently, or just when it's convenient.

D. Wayne Rogers   |   The Public Sentinel for Oversight   |   oversightreport.us

On March 6, 2025, the White House issued an executive order titled, without any apparent sense of irony, "Addressing Risks from Perkins Coie LLP."

Perkins Coie is a law firm. Its risk to the nation, as specified in the order, was that it had represented Hillary Clinton's 2016 campaign and had hired a research firm that produced opposition research the administration found objectionable. As punishment, the order suspended the security clearances of everyone at the firm, barred its attorneys from entering federal buildings, directed government agencies to review and terminate contracts with the firm, and ordered the government not to hire any of its attorneys.

The chair of Paul Weiss, a separate firm targeted a week later, said the measure against his firm "could easily have destroyed" it.

Paul Weiss chose to negotiate rather than fight. They caved to corrupt authoritarianism. The firm pledged tens of millions of dollars in free legal services to administration-favored causes in exchange for the order being rescinded. That deal became the framework for eight subsequent arrangements with other top law firms. In the legal community, it became known, uncomfortably, as the model for how to avoid being next.

Perkins Coie, WilmerHale, Jenner & Block, and Susman Godfrey chose a different path. They sued.

They won. All four of them. A victory for the first amendment in the face of an oppressive totalitarian regime.

Judge Beryl Howell, ruling on the Perkins Coie case, called the order "an unprecedented attack" on the legal system and declared it unconstitutional, null, and void. The judge ruling for Susman Godfrey found that the government had "sought to use its immense power to dictate the positions that law firms may or may not take," and that the executive order was the result of a "personal vendetta." Four separate federal judges, in four separate cases, reached the same conclusion: unconstitutional.

"Lawyers must stick to the party line, or else." That was how Judge Howell described the message the Perkins Coie executive order sent to the entire American legal profession.

Here is what makes this a First Amendment story and not just a legal industry story.

Jenner & Block was targeted because it employed Andrew Weissmann, who had worked on the Mueller investigation. WilmerHale was targeted because Robert Mueller himself had been a partner there. Susman Godfrey had represented Dominion Voting Systems in its defamation case against Fox News. The firms were not targeted for illegal conduct. They were targeted for who they worked for and who they employed.

The government used its enormous power to punish lawyers for the clients they represented and the cases they took. That is the definition of First Amendment violation that constitutional law has maintained for decades, across administrations of both parties.

Meanwhile, in the same period, the administration settled a separate case in which it had been accused of pressuring social media platforms to suppress content it disliked.

The settlement barred the relevant agencies from threatening platforms as a means of coercing content decisions, a reasonable outcome that should be celebrated by anyone who takes the First Amendment seriously.

The people celebrating it loudest were, by and large, the same people who had been silent about the law firm executive orders. Which means they were not, in any coherent sense, celebrating the First Amendment. They were celebrating a First Amendment victory for their side.

The asymmetry is the mechanism. False permission for selective speech protection works by training people to experience constitutional violations as tolerable when they happen to other people. Eventually the category of "other people" expands. It always does.

One attorney at a major law firm, speaking anonymously to discuss internal dynamics, told reporters that while the parallels to McCarthyism were obvious, firms were also facing "ruinous economic damage." Lawyers were choosing not to take cases, not to represent clients, not to file certain briefs, because they did not want to become the next target. The chilling effect was measurable even without a thermometer.

You do not need to imprison every inconvenient lawyer. You need enough of them to decide that some clients are not worth the trouble. The Constitution protects itself through people willing to enforce it. Intimidate enough of those people and the protection becomes theoretical, even if the document still hangs on the wall.

Tomorrow: The people who actually run American elections are not politicians. They are county clerks, deputy registrars, and part-time volunteers who showed up to do an unglamorous job that democracy depends on. Someone decided to make them famous. Shasta County, California. Gillespie County, Texas. Charleston, South Carolina. The names are specific. The threats were real. And one-third of local election officials now know at least one person who resigned because of them.