[UPDATE 3/28/25 10:17 pm: See also a similar result, but with less explanation, from Judge John Bates (D.D.C.) in Jenner & Block LLP v. U.S. Dep't of Justice.]
From today's decision partly granting a temporary restraining order in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President by Judge Richard Leon (D.D.C.) (see here for more details on plaintiff's arguments):
[P]laintiff has shown a likelihood of success on the merits of its First Amendment claims as to Sections 3 and 5 of the Executive Order. Undisputably, "the First Amendment prohibits government officials from subjecting individuals to 'retaliatory actions' after the fact for having engaged in protected speech." Houston Cmty. Coll. Sys. v. Wilson (2022).
This prohibition includes retaliatory actions based on perceived viewpoint. The retaliatory nature of the Executive Order at issue here is clear from its face-not only from Section 1, but also from the Fact Sheet published the same day. Indeed, the Executive Order requires government contracting agencies to disclose, review, and terminate all contracts with plaintiff—that is Section 3—and restricts WilmerHale employees from access to federal officials, buildings, and employment—that is Section 5. There is no doubt this retaliatory action chills speech and legal advocacy, or that it qualifies as a constitutional harm.
Regarding Section 2, however, plaintiff has not met its burden in showing a likelihood of success on the merits. Our Circuit has held that security clearance decisions are within the purview of the Executive Branch, see Lee v. Garland (D.C. Cir. 2024), and plaintiff has not pointed to persuasive authority that would support extraordinary injunctive relief at this early stage….
