WASHINGTON — A federal judge ruled Tuesday that President Donald Trump overstepped his authority when he signed an executive order last year that blocked funding from going to the Public Broadcasting Service and National Public Radio. 

U.S. District Judge Randolph Daniel Moss wrote in a 62-page order that while many of the original issues in the case are no longer relevant after Congress rescinded funding for the Corporation for Public Broadcasting, the section of the executive order that called on agencies to end “any direct or indirect funding of NPR and PBS” remains applicable. 

“The message is clear: NPR and PBS need not apply for any federal benefit because the President disapproves of their ‘left-wing’ coverage of the news,” Moss wrote. 

“Because the First Amendment does not tolerate viewpoint discrimination and retaliation of this type, the Court will issue judgment against the federal agency defendants declaring Section 3(a) of the Executive Order is unconstitutional and will issue an injunction barring those defendants from implementing it.”

Moss was nominated to the district court for the District of Columbia by former President Barack Obama in 2014. 

White House spokeswoman Abigail Jackson implied in a statement that the administration will appeal the court’s decision. 

“This is a ridiculous ruling by an activist judge attempting to undermine the law. NPR and PBS have no right to receive taxpayer funds, and Congress already voted to defund them,” Jackson wrote. “The Trump Administration looks forward to ultimate victory on the issue.”

A PBS spokesperson wrote in a statement the organization is “thrilled with today’s decision declaring the executive order unconstitutional.”  

“As we argued, and Judge Moss ruled, the executive order is textbook unconstitutional viewpoint discrimination and retaliation, in violation of longstanding First Amendment principles,” the spokesperson added. “At PBS, we will continue to do what we’ve always done: serve our mission to educate and inspire all Americans as the nation’s most trusted media institution.” 

A spokesperson for NPR did not return a request for comment.

No effect on congressional defunding

Trump issued the executive order titled “Ending Taxpayer Subsidization of Biased Media” in May of last year, leading to two separate lawsuits that were later joined together. 

One was filed by NPR along with three Colorado stations: Aspen Public Radio, Colorado Public Radio and KSUT Public Radio. The second lawsuit was filed by PBS and Lakeland PBS in Minnesota. 

The NPR lawsuit alleged Trump’s executive order had an “overt retaliatory purpose” and “is unlawful in multiple ways.”

“The Order is textbook retaliation and viewpoint-based discrimination in violation of the First Amendment, and it interferes with NPR’s and the Local Member Stations’ freedom of expressive association and editorial discretion,” the lawsuit stated. “Lastly, by seeking to deny NPR critical funding with no notice or meaningful process, the Order violates the Constitution’s Due Process Clause.”

The lawsuits were filed before the Trump administration in June asked Congress to eliminate $1.1 billion in previously approved funding for the Corporation for Public Broadcasting, which provided grants to NPR and PBS. 

The Senate voted 51-48 in July to approve the request and the House approved that version of the rescissions bill on a 216-213 vote shortly afterward.

Viewpoint discrimination

Moss wrote in his ruling that the original parts of the lawsuit addressing the Corporation for Public Broadcasting were no longer relevant since “CPB no longer exists, and no Court order declaring the Executive Order unlawful as applied to the CPB can afford NPR, PBS, or their member stations any meaningful relief.”

“But that does not end the matter because the Executive Order sweeps beyond the CPB,” he added. “It also directs that all federal agencies refrain from funding NPR and PBS—regardless of the nature of the program or the merits of their applications or requests for funding.”

Moss wrote that while Trump can denounce news organizations as much as he wants, he cannot order government officials to engage in viewpoint discrimination. 

“To be sure, the President is entitled to criticize this or any other reporting, and he can express his own views as he sees fit,” he wrote. “He may not, however, use his governmental power to direct federal agencies to exclude Plaintiffs from receiving federal grants or other funding in retaliation for saying things that he does not like.”

The Trump administration’s attempt to block grants from the Department of Education, the Federal Emergency Management Agency, the National Endowment for the Arts and other agencies from going to PBS and NPR would have widespread impacts, Moss wrote. 

“It does so, moreover, without regard to whether the federal funds are used to pay for the nationwide interconnection systems, which serve as the technological backbones of public radio and television; to provide safety and security for journalists working in war zones; to support the emergency broadcast system; or to produce or distribute music, children’s or other educational programming, or documentaries,” he wrote. 

Trump administration lawyers, Moss wrote, were unable to “explain why NPR’s purportedly ‘biased’ political reporting means that its production and distribution of programming like ‘Tiny Desk Concerts,’ … runs afoul of the NEA’s authorizing statute.”

With the third national group of No Kings rallies scheduled for Saturday to call out the policies of President Donald Trump, participants and organizers are hoping for a larger-than-ever response.

Organizers have crafted a succinct message for the event, found on virtually every announcement and flyer.

“NO KINGS is a nonviolent national day of action and mass mobilization in response to the increasing authoritarian excesses and corruption of the Trump administration,” the message states.

“President Trump is governing through fear, intimidation and hoarding power that isn’t his — the opposite of democracy,” it continues. “While families are crushed by the rising costs of groceries, housing and healthcare, the administration has supercharged funding for ICE to terrorize our communities.”

Organizers emphasize the goal of nonviolence for the day: “When communities stand together in nonviolent action, fear loses its power. History is clear: people-led movements, not force, is how we end repression.”

The first “No Kings” event took place June 14, 2025 — scheduled as counterprogramming to a military parade that Trump commandeered for his birthday. Organizers reported events in some 1,500 communities around the country.

The second, Oct. 18, 2025, drew millions across the country and tens of thousands throughout Wisconsin, dwarfing the June protests.

On Saturday cloudy skies and temperatures — mostly in the 40s and low 50s — that are cooler than those that prevailed over the October rally will greet participants. Weather Channel forecasts around the state don’t call for rain, however.

The mobilize.us website used by national coordinators lists 97 Wisconsin communities with events, including start times and details, ranging from Milwaukee, Madison and Green Bay to Ladysmith, River Falls and Prairie du Chien.

Milwaukee alone has two — one at a West Side bandshell and the other on the city’s East Side — although that one is scheduled to last for just half an hour. Others are planned in four adjoining suburbs. 

In Madison marchers will gather at Brittingham Park at 12:30 and proceed to  the state Capitol, where Everett Mitchell — who is both a Dane County circuit court judge and a Baptist preacher — will deliver the keynote address. Several suburban groups are planning events of their own.

Elsewhere, local supporters are directing interested participants to nearby events. A network of political progressives in Oregon, 10 miles south of Madison, sent out advisories encouraging like-minded community members to join the Madison event.

Organizers are putting their own spin on things.

In Kenosha, the Hands Off Kenosha team has planned “a democracy procession honoring figures and movements that defended democracy” as well as  a sing-along and a theatrical performance. They’re also holding a food drive; organizers say that such mutual aid events are a central part of their agenda.

In Dodgeville, former police-chief-turned-Episcopal-priest David Couper will address a crowd after a march from the Iowa County courthouse to a green patch three blocks away. Participants will also hear from a teenage speaker.

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Democracy in the United States is in trouble. According to the 2026 Democracy Report, produced by thousands of scholars and experts around the world for the Varieties of Democracy Institute (V-DEM), “The speed with which American democracy is currently dismantled is unprecedented in modern history.”  Civil rights, equality before the law and freedom of expression and the media in the U.S. are at their lowest level in 60 years, the report finds.

The press is under tremendous pressure from the Trump administration, which is cutting off access to journalists, suing media organizations that produce critical stories, and demanding that national news organizations toe the administration’s line.

Meanwhile, at the state and local level, news coverage is shrinking. 

In Wisconsin, which has a proud tradition of public access to government and open records, we’re experiencing a contraction in local news coverage and, recently, the temporary shutdown and uncertain future of WisconsinEye, which offers CSPAN-like video coverage of the state Legislature.

A bill banning Strategic Lawsuits Against Public Participation (SLAAP) that passed the Wisconsin Assembly died on Tuesday in the Wisconsin Senate, leaving media organizations vulnerable to lawsuits designed to discourage news coverage and silence free speech. Now-state Sen. Cory Tomczyk filed a SLAPP suit against the Wasau Pilot & Review back in 2021, after the news outlet reported he was overheard using an anti-gay slur. Although the news outlet prevailed, legal expenses took a heavy toll, driving the publisher to the brink of bankruptcy.

The fight to keep government open and accountable to the public is never-ending. Just this week, a bill that awards $14.6 million in taxpayer funds annually to the University of Wisconsin athletic department and sets rules for sponsorship deals by UW athletes also creates a sweeping exemption for UW athletics from the state’s open records law — shielding all revenue, spending and financial records within the UW athletic department from public view.

That kind of secrecy about the use of public funds violates public trust. So does the exemption from public records law the Legislature drafted for itself, allowing state lawmakers to delete emails to avoid turning them over to journalists and members of the public who want to know whose interests their representatives are serving.

This week is Sunshine Week, the annual collaboration among journalists and civic groups around the country to highlight the importance of public records and open government. 

Here at the Examiner, we sent out a few special newsletters this week on our reporters’ use of open records requests to investigate government activities, from Isiah Holmes’ reporting on police officers who misused surveillance technology to spy on their romantic partners to an award-winning story by Andrew Kennard and Frank Zufall about the policy of shredding mail from attorneys to their clients in Wisconsin prisons.

The Kennard-Zufall story was one of 12 by Examiner staff that the Milwaukee Press Club announced this week won top-three journalism honors, with gold, silver and bronze winners to be announced in May.

We have encountered high fees and long delays in some of our records requests, but our reporters persist. Just this week, Zufall, a Criminal Justice Project fellow, finally received a response from the Bureau of Indian Affairs to a Freedom of Information request he made in February 2025. The request was part of his reporting on a new public defender service the Lac Courte Oreilles Band of Lake Superior Chippewa is creating, citing unspecified complaints about the Wisconsin Public Defender. Stay tuned for more on that story.

We don’t do this work in a vacuum.

On Thursday night, journalists and engaged citizens gathered to honor this year’s recipients of the Wisconsin Freedom of Information Council Openness in Government Awards.Wisconsin Watch reporter Tom Kerscher and the group Midwest Environmental Advocates were each honored for their work exposing the secrecy surrounding the development of massive data centers.

“The idea that tech companies whose goal is to learn everything about us are coming into the state and trying to prevent us from learning anything about them, it really has become a politically toxic issue for them,” said Michael Grief, an attorney for Midwest Environmental Advocates. MEA received  its award for lawsuits the group filed challenging the secrecy surrounding a data center project in Racine and against the state Public Service Commission, contesting the “trade secret” status of energy demand data for Meta’s proposed data center in Beaver Dam. 

Kertscher’s investigation exposed four projects in which local officials signed nondisclosure agreements with companies, much to the consternation of their constituents.

Data centers are a growing concern for the public, and we need to know about the deals to build these giant facilities.

Here at the Examiner we are proud to stand with other Wisconsin journalists and nonprofits fighting for open records and public access to government.

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WASHINGTON — The Trump administration must explain to a circuit court before the end of March exactly why it appealed a lower court’s ruling that allows Arizona Democratic Sen. Mark Kelly to keep his retirement rank and pay while a First Amendment case about the “Don’t Give Up The Ship” video plays out.

The U.S. Court of Appeals for the District of Columbia Circuit’s order gives the Department of Justice until March 30 to provide a series of documents in its appeal of the district court’s preliminary injunction.

That ruling, from Senior Judge Richard J. Leon of the District of Columbia District Court, said Defense Department officials, including Secretary Pete Hegseth, erred when trying to apply rules that affect active-duty military members to Kelly, a retired Navy Captain.  

“Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” Leon wrote. “Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so!”

Leon was nominated by former President George W. Bush. 

DOD seeks to downgrade Kelly retirement rank

The lawsuit began earlier this year after the Defense Department began proceedings to downgrade Kelly’s retirement rank and pay for appearing in the 90-second video.

The six Democrats, all of whom are former members of the military or intelligence agencies, said in the video they understood the people working in those fields “are under enormous stress and pressure right now.” 

“Americans trust their military. But that trust is at risk,” they said. “This administration is pitting our uniformed military and intelligence community professionals against American citizens.”

They went on to say the “laws are clear” and that illegal orders can and must be refused. The video ended with them saying, “Don’t Give up the Ship,’ a long-held phrase in the U.S. Navy.

The Democrats’ video infuriated President Donald Trump, leading the Defense Department to open an investigation into Kelly.

Justice Department officials also launched an investigation into Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander.

The Justice Department failed to get a grand jury to indict the lawmakers earlier this month. 

Kelly cites effects on millions of retired veterans

Kelly wrote on social media Tuesday, after the Justice Department filed its appeal on behalf of the Defense Department, that the Trump administration didn’t “know when to quit.” 

“A federal judge told Donald Trump and Pete Hegseth that they violated my constitutional rights and chilled the free speech of millions of retired veterans,” Kelly wrote. “There is only one reason to appeal that ruling: to keep trampling on the free speech rights of retired veterans and silence dissent. I went to war to defend Americans’ constitutional rights and I won’t back down from this fight, no matter how far they want to take it.”

The Wisconsin Assembly passed a bill to protect against lawsuits intended to discourage news coverage and quiet speech, as well as measures requiring schools to adopt policies on appropriate communications between staff and students and establishing a definition of antisemitism during a Tuesday floor session.

Assembly lawmakers plan to meet again on Wednesday and Thursday to vote on legislation with the intention of wrapping their work up this legislative session by the end of the week. Lawmakers did not complete votes on every bill they had scheduled before recessing for the State of the State address in the evening. 

Anti-SLAPP legislation passes

AB 701, to protect people from Strategic Lawsuits Against Public Participation (SLAPP), passed on a voice vote. It now goes to the Senate for consideration. 

Rep. Jim Piwowarczyk (R-Hubertus), who is the co-founder of the right-wing publication Wisconsin Right Now, said the bill would strengthen protections for free speech and civic participation and ensure that citizens aren’t silenced through “abusive litigation.” 

“The bill creates a clear, efficient process for courts to quickly dismiss lawsuits that target protected speech or participation in government proceedings. It requires a prompt hearing and stays constant discovery while the motion is pending. It also allows prevailing parties to recover attorney fees,” Piwowarczyk said. “These protections help prevent the chilling effect prolonged and expensive litigation can have on free expression.”

The bill is based on model legislation developed by the nonprofit Uniform Law Commission. 

“It’s a legal tactic … designed to punish someone through stressful, time consuming and expensive litigation,” Rep. Andrew Hysell (D-Sun Prairie) said about SLAPP legislation on the floor, adding that these types of lawsuits target people “simply because they choose to exercise their First Amendment rights to speak.” 

“It’s overdue that an anti-SLAPP statute be added to Wisconsin laws. We need to protect our citizens’ First Amendment rights and protect those rights from legal retribution,” Hysell said. 

School communication policies

Lawmakers concurred in SB 673 in a 92-7 vote. It would require public school districts and private schools to adopt policies related to appropriate communications between staff and students. The bill will now go to Gov. Tony Evers for consideration. 

Schools would need to adopt new policies by Sept. 1, 2026 under the bill. 

The bill is one of several that lawmakers introduced in reaction to a November report from the CapTimes that found over 200 investigations into teacher licenses due to allegations of sexual misconduct or grooming from 2018 to 2023.

Rep. Amanda Nedweski (R-Pleasant Prairie) said the bill would protect staff and students. The bill includes requirements that the policies include standards for appropriate content and appropriate methods of communication as well as training in identifying, preventing and reporting grooming and professional boundary violations.

The bill, Nedweski said, will protect students from “potentially predatory behavior with clear proactive protections, while also protecting well-intentioned employees who work every day with integrity and professionalism — protecting them from finding themselves in compromising situations where a misunderstanding or a false allegation could cause serious reputational harm.” 

The bill also requires that policies include consequences for employees or volunteers who violate the rules.

Private schools were included through an amendment to the bill. 

“As a parent of two public school kids, we should be doing whatever we can to make sure that our kids are safe in schools,” Rep. Mike Bare (D-Verona). said. “One of the most troubling things we heard in the series of legislative hearings on this topic is that kids who were in private schools are less safe than those who are in public schools. That’s because educators in private schools are not required to be licensed.” 

Antisemitism definition

AB 446 passed 66-33 with 11 Democrats joining Republicans in favor. The controversial bill would codify the definition for antisemitism adopted by the International Holocaust Remembrance Alliance in 2016. It states that antisemitism is “a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

The bill would require local and state governmental agencies to consider the IHRA definition and its examples when investigating allegations of racial, religious or ethnic discrimination.

Rep. Supreme Moore Omokunde (D-Milwaukee) said he was concerned that the bill would infringe on people’s First Amendment rights. 

“Many Jewish and Muslim work groups have come together to use this definition to establish a framework to help understand what antisemitism is,” Moore Omokunde said. But, he added, the intention was not for the definition to be codified into law.

Moore Omokunde said he is worried that the bill could be used to punish people for speaking out against  the actions of the Israeli government.

Rep. Lisa Subeck (D-Madison), who is Jewish, said she was frustrated with the opposition to the bill. 

“Antisemitism is real. We hear again and again, particularly since October 7th, that when acts of antisemitism occur, they’re not really antisemitic,” Subeck said. “I don’t spend a lot of time when somebody tells me about an act of homophobia, I don’t debate whether it was really homophobic. When somebody who has been a victim of bias, discrimination and worse, tells me what happens to them, I believe it.”

Subeck said the bill is the Legislature’s opportunity to take a “firm stand” against antisemitism.

The bill is now in the Senate.

The Assembly also passed a bill that would prohibit people from serving as a state Supreme Court justice or as a judge of a court of record after the age of 75; AB 640 passed on a 54-45 vote along party lines. 

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The Wisconsin Assembly will vote Tuesday on a bill that would define antisemitism and that has prompted deep divisions — including among Jewish leaders, who are found among both the supporters and opponents of the measure.

Proponents of the legislation contend it is needed to take a stand against a surge in antisemitic actions, on college campuses as well as in other contexts.

Critics, however, argue that the bill would criminalize political speech critical of Israeli actions, most recently in the ongoing conflict in Gaza — which has also divided the Jewish community.

The bill would codify in Wisconsin law a definition of antisemitism that was adopted by the International Holocaust Remembrance Alliance in 2016.

The definition states: “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

The IHRA has also published a list of bullet points as “contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere…”

The legislation, AB 446, requires local and state governmental agencies to consider the IHRA definition “including its examples” when investigating allegations of racial, religious or ethnic discrimination. Its Senate companion is SB 445.

The definition would also be used to determine “enhanced criminal penalties for criminal offenses” if a defendant is found to target a victim “because of the victim’s or group of victims’ actual or perceived race, religion, color, or national origin.”

The bill “doesn’t create any new criminal penalty or compel any legal proceeding to be initiated,” testified its Assembly author, Rep. Ron Tusler (R-Harrison), at public hearings on the measure. “Rather, it provides a standard to be used in evaluating whether an alleged criminal act as provided for under current law was motivated by antisemitism.”

Both the IHRA’s examples and the bill’s criminal penalty language have become key points of criticism for the legislation’s opponents, however. Rabbis have testified both in favor of the legislation and against it.

“Nothing about this bill would prevent me, or anyone else, from rebuking Israel for its actions when conscience demands it,” said Rabbi Noah Chertkoff, who serves a congregation in the Milwaukee suburb of Fox Point, testifying in support of the bill at its Jan. 28 state Senate hearing.

At the same hearing, Rabbi Dena Feingold, the retired leader of a Kenosha congregation, called the IHRA definition “highly controversial and problematic in a number of respects” in her opposition testimony.

“It is far from universally accepted within the Jewish community, and many scholars and leaders have outright rejected it,” Feingold said.

The number of examples offered by the IHRA treating “anti-Israel rhetoric as antisemitism gives the impression that anti-Israel critics and protesters are by far the most likely sources of antisemitism in America,” Feingold added. “On the contrary, I believe that racists and white nationalists are the largest sources of antisemitism in this country.”

The legislation’s sponsor list is heavily Republican. A handful of Democrats in both chambers have signed on, but some have subsequently withdrawn their support.

At both the Assembly public hearing in October and the state Senate hearing in January, witnesses supporting the bill described increased antisemitic violence and actions, particularly since the massacre of more than 1,200 people in an attack on a music festival in Israel by the Palestinian political and military group Hamas on Oct. 7, 2023.

Ari Friedman, executive director of the Jewish Security Network, said at the January hearing that an audit by the Milwaukee Jewish Federation’s Jewish Community Relations Council found a 192% increase in antisemitic incidents in Wisconsin and similarly a national escalation in anti-Jewish hate crimes, according to the FBI.

The legislation “is not about suppressing free speech or political disagreement. Those rights are fundamental,” Friedman said. “But when expression crosses into harassment, intimidation and threats of violence directed at people because they are Jewish, it ceases to be abstract debate and becomes a public safety issue.”

The IHRA’s definition of antisemitism “explicitly does not criminalize speech,” testified the Jewish Community Relations Council’s chair, Jill Plavnick. “It provides clarity; helping schools, workplaces and courts recognize when hate crosses the line into discrimination.”

But Hannah Rosenthal, a former CEO of the Milwaukee Jewish Federation who served as a special envoy on global antisemitism during the Obama administration and also led the national Jewish Council for Public Affairs, testified in opposition to the bill in January, describing it as part of a Trump administration push to target critics of the administration’s Middle East policy.

She said the White House appears intent on using the IHRA definition of antisemitism “to identify individuals or organizations that disagree with the administration’s goal to fight any pro-Palestinian efforts as part of a Hamas network, and therefore antisemitic or even a terrorist.”

The IHRA definition “does include some very important examples of antisemitism,” Rosenthal testified. “But it is silent on conspiracy theories, the great replacement theory, white nationalism, Christian nationalism, deicide, blaming Jews for funding opposition efforts, and the like.”

(The “great replacement theory” is a conspiracy theory that “Jews and some Western elites are conspiring to replace white Americans and Europeans with people of non-European descent,” explained Rodney Coates, a Miami University professor, in a 2024 article for The Conversation.)

Advocates have pointed to language stating that the bill may not be construed to infringe on constitutional rights under the First Amendment or to conflict with federal or state antidiscrimination laws.

“It affirms that nothing in this bill may be used to infringe on free expression,” Chertkoff testified.

But Amanda Merkwae, advocacy director of the American Civil Liberties Union of Wisconsin, said that the bill incorporates the IHRA definition and its examples into Wisconsin’s antidiscrimination law — making what she called the “First Amendment savings clause” meaningless.

“Although the ACLU of Wisconsin appreciates the sentiment expressed by this provision, it cannot override the bill’s plain terms,” Merkwae said.

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The Trump administration is using a law Congress passed in the 1990s after a wave of deadly violence at abortion clinics to prosecute demonstrators and reporters who were at a immigration-related church protest in Minneapolis last month. 

Independent journalists Don Lemon and Georgia Fort, along with several activists, are accused of violating a 1994 law that made physically obstructing access to reproductive health clinics and places of worship a federal crime. Lemon pleaded not guilty Friday, while Fort is set to be arraigned next week and has denied any wrongdoing. Other plaintiffs have vowed to fight the charges — they’re also accused of conspiring against churchgoers’ right to worship — and maintained they were exercising their First Amendment rights. 

Some abortion opponents say the law should be repealed entirely, even though the statute also protects access to anti-abortion crisis pregnancy centers. Reproductive rights advocates say getting rid of the law altogether could spur more attacks on clinics and providers, which already increased in recent years. 

“It would give an even stronger signal to the zealots who would wish to shut us down to intimidate and harm our clinic folks and patients,” said Julie Burkhart, who owns clinics in Wyoming and Illinois. 

The Minnesota indictment is only the second time that the Department of Justice has brought charges under the religious provision tucked in the Freedom of Access to Clinic Entrances Act. In September, the federal government filed a civil complaint against pro-Palestinian groups and demonstrators, accusing them of violating the FACE Act after they protested outside a New Jersey synagogue in 2024.

During a news conference announcing the charges, Harmeet Dhillon, the assistant attorney general for the DOJ’s civil rights division, said the New Jersey case was the “first time in history” the FACE Act was used to “prosecute an attack civilly on a house of worship.”  

While the Trump administration has started to use the FACE Act in religion-related cases, it has also relaxed enforcement of the law against people who interfere with access to abortion clinics. 

Republican President Donald Trump pardoned 23 anti-abortion protesters convicted of violating the law within weeks of taking office in January 2025, and the DOJ released a memo that stated abortion-related cases should only be pursued in “extraordinary circumstances,” such as death, serious bodily harm or severe property damage. 

“This sent a very clear signal to anti-abortion extremists that this administration was OK and even encouraged anti-abortion violence, and we’ve seen the same people that were pardoned within Trump’s first week in office go right back out and start harassing abortion providers and their patients, whether that is putting together blockades or clinic invasions,” National Abortion Federation President and CEO Brittany Fonteno told States Newsroom. 

FACE Act followed murder of abortion provider, clinic sieges 

Tactics by the anti-abortion movement were starting to reach a fever pitch in the U.S. before the FACE Act’s passage. In 1988, hundreds of protesters were arrested in Georgia during the “Siege of Atlanta,” where abortion opponents staged routine clinic blockades over a three-month period. In 1991, thousands of anti-abortion protesters were arrested by local officials for invading abortion clinics in Kansas during the “Summer of Mercy.” 

“We were literally unable to do our jobs,” said Burkhart, who worked in Wichita that summer with Dr. George Tiller, a provider who was later killed by an anti-abortion extremist. 

In 1993, Dr. David Gunn was murdered by an anti-abortion protester outside a Florida clinic, and six months later, Tiller was shot outside his Kansas clinic. Tiller survived that attack, but he was assassinated at his church in 2009.  

Sen. Ted Kennedy and then-Rep. Chuck Schumer, both Democrats, introduced the FACE Act in Congress alongside former Republican Rep. Connie Morella, and President Bill Clinton signed the legislation the following year. 

Legal experts said the religious part of the reproductive health law was added to broaden legislative support for the bill. 

The law protects reproductive health clinics and places of worship from being physically obstructed or damaged, and makes it a federal crime to intentionally injure, intimidate or interfere with access to those places. Violators face up to a year in prison or a $10,000 fine, and up to six months in prison for nonviolent obstruction. A defendant could face 10 years if they inflicted bodily harm or life behind bars if someone is killed.  

Mary Ziegler, an abortion historian and professor at the University of California, Davis School of Law, said the measure was modeled on other civil rights laws, which typically include protections for religious institutions. She said Congress already had a Democratic majority at the time, but the religious part of the law could have been added to avoid accusations of viewpoint discrimination. 

“Even people who saw themselves as pro-life were disturbed by some of the violence,” Ziegler said. 

After the law took effect, violence against abortion clinics declined by 30%, according to the National Abortion Federation. 

The power of anti-abortion groups like Operation Rescue, known for orchestrating mass clinic blockades, waned. 

“The FACE Act was created to suppress civil disobedience at abortion centers, so it’s had a massively negative impact on the anti-abortion movement,” said Terrisa Bukovinac, the founder of Progressive Anti-Abortion Uprising. 

Bukovinac’s group along with Students for Life of America and Alliance Defending Freedom have called for the law’s demise since the U.S. Supreme Court overturned the federal right to an abortion in June 2022. 

Trump reconfigures enforcement while abortion opponents call for repeal

Violence against abortion clinics increased after the Dobbs v. Jackson Women’s Health Organization decision. From 2021 to 2022, clinics saw a 100% increase in arsons, a 25% increase in invasions and a 20% increase in death threats or threats of harm, according to the National Abortion Federation. 

The Biden administration pursued enforcement of the FACE Act by prosecuting people convicted of blocking access to abortion clinics in Michigan, Tennessee and Washington, D.C. 

Trump pardoned all of those defendants. But for some abortion opponents, the Republican administration’s narrow use of the FACE Act does not go far enough. 

“It should be repealed because it’s a draconian law,” Bukovinac said. “There are local laws that address trespass, disorderly conduct, disruptions of churches, and various other violations of statutes, but the FACE law adds the full weight of the federal government in these situations.” 

Ziegler said the law isn’t a trespassing statute, it’s about conduct and obstruction. No legal challenges against the law have held up in court before or after Dobbs, she said. 

“If you’re shooting someone in the head because they’re trying to go to a synagogue or they’re trying to go into an abortion clinic — or you’re threatening to kill them or you’re physically blocking all the entrances — that’s not speech protected by the First Amendment,” Ziegler said. 

Matthew Cavedon, a criminal justice and religious liberty expert at the libertarian CATO Institute, has written that the law may be unconstitutional. He said the federal government has typically defended the FACE Act’s constitutionality based on the Commerce Clause and the 14th Amendment.

“Pro-lifers have made the point that in order to defend the FACE Act under the 14th Amendment, you have to have some sort of federal constitutional right to have an abortion,” Cavedon said. “Back in 1994 when the act passed, the Supreme Court said that you did have that right. It doesn’t anymore. That’s been reversed. So I think that’s a very strong argument.” 

U.S. Rep. Chip Roy, a Texas Republican, introduced a bill last year that would repeal the law. The House Judiciary Committee advanced the measure in June, States Newsroom reported. 

Roy did not respond to requests for comment, but during a hearing for the bill, he said he has been criticized by Trump administration officials who wanted to use the law to defend churches. 

“That’s not what my goal is,” he said. “My goal is to alleviate the politicization in the first place.”

Renee Chelian, the founder and CEO of Northland Family Planning Centers in Michigan, testified before the committee about the importance of the FACE Act and the invasion of one of her clinics during the first Trump administration. 

“Once the law went into effect, the violent blockades immediately stopped. This all ended when President Trump took office for his first term, emboldening extremists to resume their attacks,” she said. 

In August 2020, a group of protesters blocked the entrance to Chelian’s Sterling Heights clinics, preventing patients and staff from entering the clinic. 

“Patients were stuck in their cars, including three women who were coming in for abortions following the detection of fatal fetal anomalies,” Chelian said. One of those patients was losing amniotic fluid and needed to get to her appointment for the second day of her procedure, but protesters surrounded her car and chanted at her, her mother and her husband, according to the DOJ. 

Trump’s decision to pardon seven people who invaded her clinic “left us reliving our trauma and feeling abandoned by the government that is supposed to protect us,” Chelian told lawmakers. 

Last month, the Center for Reproductive Rights sued the Trump administration after the government did not respond to Freedom of Information Act requests about “selective enforcement” of the FACE Act and Trump’s pardons of 23 anti-abortion protesters convicted under the law. 

“This is straight out of the anti-abortion movement’s playbook,” said Sara Outterson, the center’s chief federal legislative counsel. “They know they can’t ban abortion outright in a number of states, so they’ll try everything they can to restrict access to care, including allowing criminals to harass people as they try to go in to get care.” 

WASHINGTON — A federal judge issued a preliminary injunction Thursday, blocking the Department of Defense from downgrading Arizona Democratic Sen. Mark Kelly’s rank as a retired Navy captain for appearing in a video where he and other lawmakers reminded members of the military they aren’t required to follow illegal orders. 

Senior Judge Richard J. Leon of the District of Columbia District Court wrote in the 29-page ruling that Defense Secretary Pete Hegseth and others named in the lawsuit have “trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees.”

In his scathing opinion loaded with emphasis and exclamation points, Leon wrote, “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.’ To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!” 

The senior judge ruled that Kelly is likely to succeed on the merits of his case. The preliminary injunction will block Pentagon action while the case proceeds through the courts.

 

 

Leon conceded that while active military personnel are subject to “well-established doctrine” limiting First Amendment rights, “(u)fortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military.” 

“This Court will not be the first to do so!”

Leon was nominated by former President George W. Bush.

Leon concluded the ruling with a biting passage suggesting that “Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years.” 

“If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights! Hopefully this injunction will in some small way help bring about a course correction in the Defense Department’s approach to these issues,” Leon wrote.

‘This case was never just about me’

Kelly said in a lengthy statement following the ruling that the federal court “made clear that Pete Hegseth violated the constitution when he tried to punish me for something I said.” 

“But this case was never just about me. This administration was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out. That’s why I couldn’t let it stand,” Kelly said.

Kelly said the nation is at a “critical moment” to defend free speech.

“The First Amendment is a foundation of our democracy. It’s how we demand better of presidents like Donald Trump – whether they are jacking up the cost of groceries with tariffs or sending masked immigration agents to intimidate American communities.  

  “But Donald Trump and his administration don’t like accountability. They don’t like when journalists report on the consequences of their policies. They don’t like when retired veterans question them. And they don’t like when millions of everyday Americans peacefully protest. That’s why they are cracking down on our rights and trying to make examples out of anyone they can.”

The Department of Defense pointed to Hegseth’s X account as official comment on the matter.

The secretary wrote about the case: “This will be immediately appealed. Sedition is sedition, ‘Captain.’”

DOD investigation

Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander, all Democrats with backgrounds in the military or national security, posted the video on Nov. 18

President Donald Trump reacted on social media a few days later, falsely claiming the video represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”

The Defense Department announced on Nov. 24 that it had opened an investigation into “serious allegations of misconduct” against Kelly. Officials wrote the senator could face “recall to active duty for court-martial proceedings or administrative measures.” 

Hegseth wrote in a social media post on Jan. 5 that he had started the process to downgrade Kelly’s retirement rank as a Navy captain and his pay. 

Hegseth wrote Kelly’s “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”

Kelly filed a lawsuit against the Department of Defense and Hegseth on Jan. 12, asking a federal judge to declare the effort “unlawful and unconstitutional.”

“Pete Hegseth is coming after what I earned through my twenty-five years of military service, in violation of my rights as an American, as a retired veteran, and as a United States Senator whose job is to hold him—and this or any administration—accountable,” Kelly wrote in a statement at the time. “His unconstitutional crusade against me sends a chilling message to every retired member of the military: if you speak out and say something that the President or Secretary of Defense doesn’t like, you will be censured, threatened with demotion, or even prosecuted.”

Court hearing

Leon held a hearing on Kelly’s request for a preliminary injunction on Feb. 3, where he asked the attorney representing the Department of Defense how any retired member of the military who is later elected as a member of Congress, especially one that sits on the Armed Services Committee, like Kelly does, could challenge any actions taken by the Defense Department. 

John Bailey, the Justice Department attorney, contended that Congress has determined that certain retired military members are still subject to the Uniform Code of Military Justice. 

Benjamin Mizer, one of the lawyers on Kelly’s team, told the judge the Defense Department’s actions represented a “clear First Amendment violation.” 

Grand jury non-indictment

The other Democratic lawmakers in the video aren’t subject to the military’s judicial system but rebuked the Justice Department Wednesday for seeking a grand jury indictment against them for publishing the video, where they told Americans in the military and intelligence communities they “can” and “must refuse illegal orders.”

“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”

Slotkin, a former CIA officer, posted a video on Feb. 5, saying she had informed U.S. Attorney General Pam Bondi and U.S. Attorney for the District of Columbia Jeanine Pirro that she wouldn’t be sitting for an interview. 

Slotkin said her letter to Bondi and Pirro also told them “to retain their records on this case in case I decide to sue for infringement of my constitutional rights.”

“To be honest, many lawyers told me to just be quiet, keep my head down and hopefully this will all just go away. But that’s exactly what the Trump administration and Jeanine Pirro want,” Slotkin said. “They are purposely using physical and legal intimidation to get me to shut up. But more importantly they’re using that intimidation to deter others from speaking out against their administration.

“The intimidation is the point and I’m not going to go along with that.”

House members 

Houlahan released her own video the same day saying she would not sit for an FBI interview and that the Democrats’ video “told the truth, it stated facts, it reiterated the law and it exercised speech explicitly protected by the First Amendment of the United States Constitution.” 

“Free speech is not a favor that the government can revoke,” Houlahan said. “It is a right and I will not surrender it, for myself or for anyone else.” 

Deluzio wrote in a social media post the following day that he would “not be intimidated by any harassment campaign” and does “not intend to sit down for a voluntary interview with DOJ or FBI officials sent to interfere with the important work I’m doing for my constituents.”

Goodlander wrote in a statement that the “Justice Department is targeting us for doing our jobs, and the aim here is clear: to intimidate, coerce, and silence us. It will not work. I will not bend the knee in the face of lawless threats and rank weaponization — I will keep doing my job and upholding my oath to our Constitution.”

Crow told CNN’s Pamela Brown last week that he was treating the FBI’s investigation as “an attempt to try to threaten, harass and intimidate political opponents.”

“(Trump’s) trying to make an example out of me and Mark Kelly and others because if he can make an example out of a member of Congress or a senator then why would everyday Americans stand up and protest and dissent? But he has chosen the wrong people.”

Arizona Democratic Sen. Mark Kelly outside the District of Columbia federal courthouse where his lawsuit against the Department of Defense was heard on Feb. 3, 2026. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — The federal district court judge overseeing the lawsuit Arizona Democratic Sen. Mark Kelly filed against the Department of Defense said during a Tuesday hearing he expects to issue a ruling before Feb. 11. 

Kelly has asked the judge to issue a preliminary injunction blocking the Pentagon from demoting his rank as a retired Navy captain for appearing in a video where he and other members of Congress reminded members of the military they do not need to follow illegal orders. 

Senior Judge Richard J. Leon of the District of Columbia District Court said toward the beginning of the one-hour hearing that he planned to issue his decision “as quickly as possible” and told the lawyers that he didn’t “want to get too lost in the weeds” of the case at this earlier stage. 

Instead, he asked several questions about First Amendment rights in general, what protections a lawmaker holds, and whether the Trump administration was trying to expand previous court decisions regarding the military justice system to retirees. 

Leon was nominated by former President George W. Bush.

Kelly’s lawyers see a ‘First Amendment violation’

Benjamin Mizer, one of the lawyers on Kelly’s team, said “a lot about this case is unprecedented,” and urged the judge to reject the Department of Defense’s assertion that it has the legal right to demote any retired military member if they say something critical of its actions. 

Defense Secretary Pete Hegseth’s censure letter and efforts to demote Kelly, he said, represented a “clear First Amendment violation.” 

“Secretary Hegseth demonstrated bias and that he is not a decision maker who has kept an open mind,” Mizer said. 

Mizer also said that all of the cases the Trump administration had cited in briefs to the judge addressed active duty service members, not retired members of the military. He contended that the federal district court does have jurisdiction to decide this case since it addresses constitutional claims. 

Trump administration battles back

John Bailey, the Justice Department attorney representing the Defense Department in the case, said that there is “at least a military clause to the First Amendment.”

Leon interjected to ask Bailey if it wasn’t “a bit of a stretch” to ask him to expand previous court rulings about active duty service members to cover retired members, like Kelly. 

“You’re asking me to do something the Supreme Court and D.C. Circuit haven’t done,” Leon said. 

Bailey also contended that Kelly should have exhausted administrative avenues within the Department of Defense to contest Hegeth’s move to add a censure letter to his file and begin the process of demoting his retirement rank and pay. 

Leon also questioned how any retired member of the military who is later elected as a member of Congress, especially one that sits on the Armed Services Committee, like Kelly does, could challenge any actions taken by the Defense Department. 

Bailey said that Congress has determined that certain retired military members are still subject to the Uniform Code of Military Justice. 

Later in the hearing, Bailey conceded that there are “perhaps a few unique First Amendment” aspects to the case, but said one important aspect is that Kelly hasn’t stopped speaking out against Trump administration policies he disagrees with, meaning there hasn’t been any “chill’ of his First Amendment rights. 

Leon said it may not be just Kelly who feels a chilling effect but also other military retirees who decide not to question Defense Department actions over concerns they may experience the same demotion Kelly faces. 

Leon wrapped up the hearing saying he would decide whether to grant Kelly a preliminary injunction in the “very near future … so it can be appealed.”

Kelly cites freedom of speech for military retirees

Kelly, who attended the hearing, said afterward the case is not just about his constitutional rights but the rights of “millions of retired service members.”

“There’s nothing more fundamental to our democracy than the freedom of speech and the freedom to speak out about our government, and that’s what I’m fighting for,” Kelly said. “I appreciate the judge’s quick and careful consideration in this case, given what is at stake here.”

Kelly rebuked Hegseth for trying to punish him for telling members of the military they didn’t need to follow illegal orders. 

“Secretary Hegseth censured me and is now trying to demote me for things that I said and for doing my job as a United States senator,” Kelly said. “And this isn’t happening in isolation. Since taking office, this administration has repeatedly gone after First Amendment rights of many Americans. That’s not how we do things here in the United States.”

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As media outlets that regularly report on newsworthy events, we, the undersigned, vigorously condemn the recent arrests of journalists Don Lemon and Georgia Fort. 

Lemon and Fort were arrested after covering a January 18 protest at a church in Minneapolis. They were conducting the constitutionally protected activities of a working journalist: observing, recording and documenting a newsworthy event and attempting to obtain quotes from participants. 

Their arrest on charges of allegedly obstructing a place of worship, and even worse, under federal conspiracy law, alarms all of us who believe in the First Amendment and seek to do our jobs without fear of obstruction by law enforcement or retaliation by agents of the government. 

The principle of a free press animated the founding of the United States of America 250 years ago, and countless Americans have fought valiantly for it. We cannot allow colleagues to be subjected to spurious and unwarranted arrest for committing acts of journalism.

We call on federal authorities to drop all charges against Lemon and Fort and to publicly affirm their unqualified support for the work of professional journalists in this critical time.

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Wisconsin Watch joins media outlets in condemning arrests of journalists Don Lemon and Georgia Fort is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.