Chilling effects, Trump’s Anti-DEI Executive Orders, and the Role of the Courts (or why the Fourth Circuit Decision in National Association of Diversity Officers v. Trump is wrong)

Genevieve Lakier

At this point in the Trump presidency, it is quite clear that a central way in which the administration wields power is by threatening those who speak and associate in ways that it dislikes with economic or legal harm if they do not stop. These threats and promises of payback are obviously intended to ensure compliance with the President’s ideological agenda; or, at least, to ensure that those who oppose that agenda shut up. They pose, as such, a serious threat to the First Amendment. After all, the core idea underlying the modern First Amendment is that the government may not as Justice Jackson put it in West Virginia v. Barnette, “coerce uniformity of sentiment in support of [an] end [it believes to be] essential”; that in this democratic state, “[a]uthority is… to be controlled by public opinion, not public opinion by authority.” At the same time, however, courts—particularly in recent decades—have recognized a rather expansive right to “freedom of government speech” (to use Judge Posner’s useful phrase). They have recognized that government officials have broad freedom not only to express their point of view on contested matters of public concern but to criticize private citizens when they express opposing views and to cajole them into better behavior. The central question that courts must answer then, when deciding when and which of the administration’s threats violate the First Amendment, is whether those threats work to coerce silence, or merely speak.

Sometimes answering this question is quite simple. There is no question that the government coerces, rather than speaks, when it enacts a statute or regulation that penalizes particular speakers or groups because of the views that they hold. And this is true regardless of whether the statute penalizes by imposing costs or by denying speakers benefits that others receive. It is similarly uncontested that government actors speak, rather than coerce, when they express their own views about matters of public concern—and that is true even if, in other domains, we recognize that the expression of strong opinions by those in positions of institutional authority may chill the ability of others to express opposing points of view. Nevertheless, democracy requires political leaders to tell the public what they stand for.  Hence, political speeches may incite, but they ordinarily do not coerce in a constitutionally meaningful sense.

Other governmental speech acts pose a thornier problem. In particular, how should courts think about the governmental speech act that is the executive order? Executive orders have the force of law. They exercise the inherent or delegated powers of the presidency. But they often merely declare administration policy, at a high-level of generality. In this sense, they are akin to a political speech. Does the statement of policy articulated in orders of this kind unconstitutionally coerce private silence, in violation of the First Amendment, or is it merely the kind of political rhetoric that is protected by the freedom of government speech?  This is an important question to answer in the Trump era, given the President’s fondness for executive orders, and more specifically, his fondness for executive orders that declare it the intent of the administration to take steps to punish or exclude from public life and the federal workforce viewpoints or “ideologies” that the administration dislikes, but do not specify with great clarity how that intent will be carried out. Are these kinds of orders subject to constitutional challenge if and when they reflect a clear viewpoint bias and speech-suppressive intent?

One would hope that, in answering this question, courts would be sensitive to the ways in which promises to do something—even if what that something is is not clearly spelled out—can chill speech, even absent the realization of that promise. This is certainly something that six decades of First Amendment informal coercion, or “jawboning,” cases recognize. In those cases, courts—including the Supreme Court—have made clear that threats to use the powers of the state to punish those who engage in disfavored expression violate the First Amendment even when those threats never come to fruition, so long as they are reasonably understood as serious expressions of intent. As the Seventh Circuit put it in an influential decision in 2015:

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form. Notice that such a threat is actionable and thus can be enjoined even if it turns out to be empty—the victim ignores it, and the threatener folds his tent.

Of course, executive orders aren’t the kinds of informal speech acts to which the jawboning precedents typically apply. They are laws, albeit laws that are produced without the ordinary processes of bicameralism and presentment (or even notice and comment). Nevertheless, one would think that the same First Amendment principles govern their constitutional analysis. In all cases, after all, the question is whether the promise to exercise government power is likely to lead to the suppression of private speech.

This is not what the Fourth Circuit seems to think, however. Last Friday, the Fourth Circuit issued an order, staying the nationwide injunction that a district court had imposed on portions of two of President Trump’s speech-regulating executive orders (Executive Order No. 14,151, Ending Radical and Wasteful Government DEI Programs and Preferencing, and Executive Order No. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity), both of which work to limit the presence of what the administration clearly considers to be the evil of DEI (Diversity Equality and Inclusion) programming, speech and association in both the public and private sectors.  A diverse array of organizations— including the National Association of Diversity Officers (NAD) and the AAUP—had challenged the constitutionality of portions of both orders. Specifically, plaintiffs  argued that the parts of these orders that  required administrative agencies to “terminate, to the maximum extent allowed by law, all ... “equity-related” grants or contracts,” that required all recipients of federal grants and contracts to certify that they “do[] not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” and that directed the Attorney General to take “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” to “deter” such “programs or principles,” and to “identify ... potential civil compliance investigations” to accomplish such “deter[rence]” violated the First Amendment Speech Clause and the Fifth Amendment prohibition against vague laws, and exceeded the government’s power under the Spending Clause.

The district court that first heard this challenge did not reach plaintiffs’ Spending Clause argument but concluded that the plaintiffs were likely to succeed on their First Amendment and Fifth Amendment arguments. More specifically, the district court concluded, reasonably enough, that all three of the provisions that the plaintiffs challenged are unconstitutionally vague because they failed to define or otherwise specify the meaning of the deeply unclear terms they relied upon.  For example, what does it mean for a grant to be “equity-related”? Does this mean the grant must be for work that is focused on questions of equity? Or is only a whiff of equity enough? Nothing in the Ending Wasteful Spending order answers these questions. Nor does the Ending Illegal Discrimination order clarify what it means to say that a DEI program violates federal antidiscrimination law.  One might think that this would not be something the order would need to clarify, but in fact, the scope and limits of federal antidiscrimination laws like Title VI and Title IX are not only murky but highly contested.  And of course the meaning of the Equal Protection Clause is far from certain in the wake of the Supreme Court’s ruling in Students for Fair Admissions v. Harvard—as my colleague, Sonja Starr has explored in detail. Indeed, the very adventurous interpretations that the Trump administration has been advancing when it comes to both the Equal Protection Clause and Title VI mean that the question of what federal antidiscrimination laws do and do not require when it comes to programs focused on the promotion of diversity and equality is even less clear today than in the past.

The district court accordingly concluded that the orders fail to give individuals the notice that the Fifth Amendment requires; and also invite discriminatory enforcement. It found, in addition, that the parts of the orders that target unlawful DEI programs facially viewpoint discriminate by focusing solely on these but not the many other kinds of speech that might violate the federal civil rights laws (for example, anti-DEI or white nationalist speech and expressive activity) because of the administration’s animus towards the views they express. Because it found that the plaintiffs were likely to succeed on the merits of their challenge, and the balance of equities tipped in their favor,  the court enjoined the enforcement of these portions of the executive orders anywhere in the United States.

A unanimous panel of the Fourth Circuit stayed this injunction, however, roughly three weeks after it was issued, thereby allowing the two orders to immediately go into full effect. The order announcing the stay did not provide much explanation for why the panel decided to grant it. But two concurring opinions, the first authored by Judge Harris, an Obama appointee, and the second authored by Judge Rushing, a Trump appointee, strongly suggest that the court did so not because it disagreed substantively with the district court’s merits analysis. Indeed, language in both opinions suggest that at least two members of the panel agreed with the district court’s merits analysis, or at least with its conclusion that the language in the Executive Orders was problematically vague. Instead, the concurrences suggest that the members of the panel granted the government’s motion for a stay because they believed that, however problematic they may be, the executive orders themselves do not impact plaintiffs’ rights in the absence of what Judge Harris described as specific “agency enforcement actions”: that it is only when agencies cut off funds, or issue certification demands, or enforce the executive orders in other ways that constitutional rights are imperiled—and that it is these enforcement actions, not the orders themselves, that plaintiffs should challenge. The concurrences suggest that the members of the panel view the executive orders, in other words, as something akin to government speech.

This is a deeply troubling conclusion for the court to reach—if, as seems likely, it is what led the panel to stay the district court injunction—because it fails to take seriously what the jawboning cases indicate courts should take very seriously: namely, the powerful chilling effect that governmental speech acts like the anti-DEI executive orders can have on the willingness of private persons to engage in speech and association even absent specific enforcement actions. Indeed, this concern with chilling effects extends far beyond the jawboning cases. Consider for example the Supreme Court’s 1959 decision in Smith v. California, which struck down a California law that made it a strict liability offense to publicly disseminate obscene materials. The Court held that the law was unconstitutional, even though on its face it applied only to constitutionally unprotected speech, because of its chilling effect on booksellers. As Justice Brennan explained:

By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents . . . he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered.

Surely the anti-DEI orders may similarly result in a kind of private “self-censorship” that is nonetheless “compelled by the State”? It is true that Smith involved an enforcement action: the case reached the Supreme Court only after the government attempted to charge a bookseller under the new law. But it is far from clear why this should matter to the constitutional analysis. The Court found the California obscenity law to be unconstitutional not so much because of its chilling effect on the plaintiff bookseller  (who in fact, had not chosen to self-censor, which is why he ended up before the courts), but because of its impact on all the other, absent booksellers who were, as Justice Brennan put it, too “timid” to sue to defend their First Amendment rights. The same logic, of course, underpins the overbreadth doctrine: here too, the Court has traditionally permitted plaintiffs to challenge a potentially unconstitutional law, even when it is clear that their rights are not infringed, in order to protect all the plaintiffs who will not sue but will instead choose simply to self-censor.

The long-standing concern in the First Amendment cases for these absent plaintiffs should have led the Fourth Circuit to reach a different conclusion than it did about not only the merits of the injunction, but the viability of the underlying constitutional claims in this case, which the concurrences suggest are unlikely to win when squarely presented to the Fourth Circuit. This is because, while Judge Harris and Rushing are entirely correct that those impacted by the specific enforcement actions that agencies undertake to enforce the anti-DEI orders can always challenge the constitutionality of those actions on First and Fifth Amendment grounds, it is very likely that many will not do so but will instead simply comply out of belief of the harms that they are likely to suffer from challenging the government’s actions in court outweigh the benefits they are likely to receive from doing so, even if they succeed.  Such a belief would be, after all, eminently rational. Going to court to defend one’s free speech interests is often a perilous business. Plaintiffs can experience significant reputational harm by publicly defending their right to engage in disfavored expression. More relevant here, perhaps, businesses that regularly interact with the governmental entities they are suing risk injuring that relationship, with long-term consequences.

Given all these risks—risks that are surely magnified enormously by the retributive and tribal character of the Trump administration—the list of plaintiffs available to challenge any given enforcement action may be small indeed. Consider for example the certification requirement: surely any contractor who challenges the requirement to certify will do so knowing that they are now alerting the administration that they engage in problematic DEI practices or, at the very least, that they want to protect those who do. If they are a repeat player, how will they be certain—even if they win their case—that officials will not deny them a contract or a grant the next time around as a result? Officials generally possess broad discretion to decide with whom to contract, or to award grants—discretion that can easily be used to secretly punish disfavored actors.

For similar reasons, businesses targeted by investigation may not wish to rouse the administrator’s ire by challenging the constitutionality of those investigations. Even if the lawsuit succeeds in ending the investigation, the ongoing nature of their relationship with the administration, and the many tools administrators possess to make life hard for the corporations they oversee. may make the victory a pyrrhic one. Companies know this, which is why, so far at least, they have tended not to challenge this kind of anti-DEI “deterrence.” For example, after FCC Commissioner Brendan Carr sent a letter  to the cable company Comcast warning it that he had ordered the agency’s Enforcement Bureau to investigate whether it “promot[ed] invidious forms of DEI in a manner that does not comply with FCC regulations” the company—rather than challenging the agency’s actions promised to “cooperate with the FCC to address any questions.” 

Of course, AAUP and NADO, and other trade groups surely will challenge those enforcement actions that end up impacting their members. But the effect of those challenges may very well be limited to the context in which they apply—meaning that those courageous plaintiffs who are not deterred from suing by the threat of political retribution may be forced to put out a thousand fires, rather than just one. What the Fourth Circuit has done, in other words, is to raise the cost of challenging the constitutionality of the Trump administration’s anti-DEI campaign considerably. It is hard to understand what is gained by doing so.

In her concurring opinion, Judge Rushing suggested that requiring plaintiffs to challenge specific agency actions rather than the executive orders themselves was necessary to preserve the traditional role of the courts in the separation of powers, and to “prevent the judicial process from being used to usurp the powers of the political branches.” But courts already permit declaratory judgment actions to protect plaintiffs who do not want to run the risk of violating what turn out to be valid speech-restrictive laws. They do not wait until there is concrete enforcement to adjudicate the constitutionality of the law because they recognize, as Sam Bray has noted, that “uncertainty about [the meaning of] a criminal statute can” deter all kinds of valuable activity—it can “prevent people from investing in a new business,” not to mention prevent them from speaking, and that the declaratory judgment has “societal value” because it is “available at a stage before enforcement is imminent.”  It is not clear why the same would not be true here.

It is also very unlikely that the Trump administration, will take steps to clarify the scope of the challenged provisions and therefore cure whatever vagueness they may possess, as members of the panel may have hoped they would do (and for that reason, stayed the judicial firepower). This is because the administration clearly profits from the lack of clarity that plagues this like many other of Trump’s executive orders. This is certainly what the argument before the district court in this case suggests. As the district court judge, Judge Abelson, noted in his opinion, when pressed during oral arguments, the government’s lawyer adamantly refused to provide any further clarity on the meaning of the key terms but “merely reiterated that promoting DEI can be unlawful and that there is uncertainty about whether programs or policies that are sometimes referred to as “DEI” are lawful after the Supreme Court's decision in Students for Fair Admission.”  This uncertainty is useful, of course, because it encourages precisely the harm that the void-for-vagueness doctrine is meant to prevent: namely, it leads even those whose speech is far from the “forbidden zone” to stop speaking.

By assuming that whatever problems are presented by the anti-DEI executive orders can be cured at a later stage in the game, the Fourth Circuit failed entirely to recognize the very serious harms that the orders are doing right now by promising uncertain but nevertheless serious harm to those who wish to talk about equity or diversity or inclusion. The order reflects, as such, a deeply problematic effort to maintain a minimalist role for the courts at a time when the Trump administration has made no bones about its willingness to wield its power expansively and aggressively.

Let us hope that this failure is not indicative of a broader trend.  As Seth Kreimer has demonstrated, in the wake of the Second Red Scare, courts developed a robust architecture of what Kreimer calls “procedural scaffolding” that they applied in First Amendment cases to enable “more robust litigants willing to appear in court to raise the interests of others.” In subsequent decades, however, courts limited or weakened much of this scaffolding out of concern with (among other things) the maintenance of the separation of powers. It does not violate separation of powers, however for courts to recognize how administrative actions can prevent the judicial branch from playing the role it is supposed to in our system of government—a role that includes protecting the rights of the individual and the democratic public itself against executive abuse and domination. To the contrary, it shores up the separation of powers for courts to play this role.

It is vital, right now, that courts recognize as much, and do not permit an overly minimalist vision of the judicial role to prevent them from effectively defending civil rights—including but not only limited to the right to freedom of speech—against the Trump administration’s heavy-handed efforts to scare us all into submission. Indeed, given the many similarities between the repression that characterized the McCarthy Era and what we are experiencing today, it may be time again to shore up the procedural scaffolding that protects absent plaintiffs and is intended to enable courts to adequately defend against a retributive executive. Defending that position would require a separate blog post, however! For now, it is enough simply to note the many problems with the Fourth Circuit’s treatment of the First Amendment equities in this case, and to implore courts faced with similar kinds of challenges in the future (of which there are no doubt going to be many) to not make the same mistakes. 

Genevieve Lakier is Professor of Law and Herbert & Marjorie Fried Teaching Scholar at The University of Chicago Law School. You can reach her by e-mail at  glakier@uchicago.edu.