Exclusive Analysis: DADT Judge Establishes High Hurdle For Obama’s DOJ
Judge Rules DADT Military Speech Content-Based. Decision Establishes Constitutional Legal Scrutiny Under First Amendment—High Hurdle for Obama’s DOJ to Overcome.
EXCLUSIVE ANALYSIS — By Tanya Domi
Editor’s note: Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University and served fifteen years in the U.S. Army. She is a regular contributor to The New Civil Rights Movement.
NEW YORK, Oct. 12, 2010—Judge Virginia Phillips of the Federal District Court in Riverside, California issued an order today to the Obama Administration to immediately cease enforcement of the disputed “Don’t Ask, Don’t Tell” law—including investigations and discharges.
In an incisive and sweeping decision that arguably takes the heart out of “Don’t Ask, Don’t Tell” (DADT), Judge Phillips found that the government does not have the constitutional right, even in the military, to restrict or punish service members who engage in protected acts of speech, including identifying themselves as being gay.
Judge Phillips wrote in her review while recognizing the legally established rule of deference by the courts to the military, permitting some restrictions on military speech, that DADT did not survive “constitutional scrutiny†because it “has a sweeping reach of the restrictions of speech contained in the statute which are far broader than is reasonably necessary to protect the substantial government interest.â€
In a damning litany, Phillips cited numerous examples of how DADT prevented plaintiff witnesses Michael Almy and Anthony Loverde from discussing their personal lives or comfortably socializing off-duty with their respective colleagues. Jenny Kopfstein, another plaintiff witness, testified that DADT made it impossible for her to respond to mundane questions from shipmates about how she spent her leisure time away from duty without revealing the existence of her partner.
In bolstering her decision through these examples, Judge Phillips asserted that DADT’s “restrictions on speech not only are broader than reasonably necessary to protect the government’s substantial interest,” but also actually “serve to impede military readiness and unit cohesion, that than further these goals.”
Indeed, Judge Phillips makes a specific point in the decision to assert the chilling effect that DADT had on the speech and actions of plaintiffs Alex Nicolson and Joseph Rocha, who were consequently afraid to bring violations of military policy or codes of conduct to the attention of the chain-of-command. In their testimony, Nicholson and Anthony Loverde also acknowledged the similar chilling effect on their speech when overhearing or being subjected to homophobic slurs or taunts.
Furthermore, Judge Phillips expressly pointed to additional acts of repressed speech which include prohibitions on openly joining organizations who advocate the repeal DADT, such as Log Cabin Republicans; writing personal letters, even in a foreign language to a person of the same-sex whom they had had an intimate relationship with before joining the military; and certain discharge for confiscation of private emails to family and friends that may reveal their sexual orientation, when heterosexuals are exempt from such punitive scrutiny.
Phillips also ruled that the government did not meet the Witt Standard with respect to its policy of prohibiting openly gay soldiers based upon a long maintained rationale of “unit cohesion and military readiness.” She ruled that DADT does not further the significant interests of the government. In fact, she asserts the government actually delays discharges based upon sexual orientation when individuals are judged to be necessary, especially when deployed in combat locations.
The Lawrence Supreme Court decision was cited by Judge Phillips on numerous occasions, but most decisively with respect to “constitutionally recognized substantive due process rights associated with the autonomy of self that includes freedom of thought, belief and expression.†Lawrence portends to be a significant decision in all-future cases involving LGBT rights.
Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University, who teaches about human rights in Eurasia and is a Harriman Institute affiliated faculty member. Prior to teaching at Columbia, Domi worked internationally for more than a decade on issues related to democratic transitional development, including political and media development, human rights, gender issues, sex trafficking, and media freedom.
Domi has worked in a dozen countries. Prior to working abroad, she became a nationally known LGBT rights activist in the United States as the legislative director and military freedom initiative director at the National Gay and Lesbian Task Force, where she worked to repeal the ban on lesbians and gays who served in the military and was directly involved in drafting and original introduction of the Employment Non-Discrimination Act in 1994. She has been actively involved in the effort to repeal DADT during the past two years as a blogger and speaker, with expertise as a result of her 15 years of service in the U.S. Army as an enlisted soldier and commissioned officer.
Domi has a Masters of Arts in Human Rights from Columbia University, with a regional specialty in East Central Europe and The Balkans.
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Maine Democratic U.S. Senate nominee Graham Platner is under fire after releasing a video declaring that new allegations against him are false, yet he is “taking time to reflect” on a path forward.
Politico on Monday afternoon reported that a woman who dated Platner, Jenny Racicot, “says he forced her to have sex with him nearly five years ago despite her repeated objections, an allegation Platner denies.”
“Racicot said she had an on-and-off relationship with Platner,” Politico reported, “for more than two years before he entered her rural Maine home uninvited one night in late 2021, deeply intoxicated, and forced himself on her while she repeatedly told him to stop. She said she cut off contact with him after telling him the encounter was not consensual.”
In a video posted to social media eleven minutes after the Politico story dropped, Platner says, “I wanted to directly address the troubling, serious, and false allegations against me. Any accusation of nonconsensual behavior is categorically false.”
He said he and his supporters “were united in a love of Maine, a belief that our politics must change, in a focus on defeating Susan Collins.”
“So, regardless of the inaccuracy of the reporting, but mindful the political reality will inflict, we are taking the time to reflect on the best path forward for the state that I love, the people that I love, the movement I belong to, and the goal of defeating Susan Collins.”
“Those were the goals when we launched this campaign. And they remain my goals today.”
“Throughout it all, you never turned your back on me. And I will not turn my back on you now. Every one of you deserves to see that vision come to fruition and see Susan Collins defeated. And we will use every tool at our disposal to do so.”
The Bulwark’s Tim Miller, a political commentator who served as the communications director for the Jeb Bush 2016 presidential campaign, blasted Platner.
“I’m sorry but ‘we are taking time to reflect on the best path forward’ is not an option on the table,” Miller wrote. “Either it’s false and you campaign with vigor or it’s true and you get out / apologize to everyone you let down.”
Journalist Ryan Grim, commenting on Platner’s video, noted that Platner “strongly suggests he is considering dropping out. Already Troy Jackson and Chellie Pingree, both gubernatorial candidates, are being kicked around in Maine circles as potential replacements.”
Several others, including Puck News’ Peter Hamby, predicted Platner will be dropping out.
Platner had postponed several campaign events before the Politico story was published.
— Graham Platner for Senate (@grahamformaine) July 6, 2026
President Donald Trump is facing backlash after posting a video of children — including showing their unblurred faces — graduating from kindergarten, with some of the girls purportedly wearing hijabs.
“President Trump posted a captionless video of graduating kindergarteners on Truth Social on Monday, goading his supporters into verbally attacking little children simply for being Muslim,” The New Republic reported. “The clip is from Gateway STEM Academy, a majority-Black K-8 public charter school in St. Paul, Minnesota. It shows about 21 children in caps and gowns on stage singing a song together. Most of the girls are wearing hijabs.”
The original post of the video which Trump reposted reads: “Public school in St. Paul, Minnesota. Every girl is in a hijab … in kindergarten.”
Trump did not add any comments. TNR called the post “Islamophobic, weird, and creepy,” while noting that the comments section of Trump’s post was filled with calls “by racist, xenophobic MAGA supporters” to “deport the children and ban hijabs.”
TNR also noted that it “should come as no surprise that Trump isn’t above attacking children who just learned how to read, but this post is still particularly discomforting—and will certainly contribute to the already potent level of anti-Muslim sentiment in the U.S. and in Minnesota.”
Critics blasted Trump.
“There is something deeply unsettling about the president of the United States—the most powerful person in the world—going after kindergarten schoolchildren in Minnesota because they wore hijabs, as Trump has done this morning on his website,” The Bulwark’s Sam Stein wrote.
One social media commentator wrote, “Trump posted an unblurred video of more than a dozen Muslim kindergartners to Truth Social, exposing the children’s faces while targeting them for their religion.”
Another added, “Trump is a bigot. The president took to Truth Social to attack kindergarteners in hijabs. These are little kids. The president isn’t just a bigot, he’s also a coward.”
The original video was posted to the X social media platform in June.
U.S. Rep. Nancy Mace (R-SC) at the time commented, “If you are in a public school in America, you should be speaking english.”
Image via Reuters
President Donald Trump’s apparent efforts to delay releasing the $5.8 million civil judgment to E. Jean Carroll are being met with a warning by the journalist’s legal team, who suggest there could be a legal maneuver for Trump to employ to forgo paying the judgment in either of the two cases he lost.
According to The Guardian, on July 4, U.S. District Judge Lewis Kaplan ordered Trump to release the $5.8 million judgment, which is in escrow, to Carroll by this coming Tuesday — or explain why he would not do so.
Carroll’s attorneys think Trump may be trying to buy time to mount another legal strategy, telling the judge that Trump’s request for an extension “appears to be little more than yet another play for time.”
“The case is separate from Trump’s appeal of a Manhattan civil jury’s 2024 award of $83.3m to Carroll for defamation,” The Guardian explains. “But her lawyers have suggested a legal scenario in which the president might seek to conjoin the cases and further delay payment of both.”
Carroll’s attorney Roberta Kaplan (no relation to the judge) wrote, “We can only assume that defendant is seeking … to buy time so he can try to concoct some new basis to put off paying plaintiff presumably in connection with his forthcoming petition and motion for a rehearing.”
Trump’s former attorney, Justin Smith, in one of his final acts, wrote to the Supreme Court suggesting that his client would be appealing the $83.3 million civil judgment.
Smith argued that the Supreme Court “may wish to consider the petitions together,” given they involve the same parties.
The larger judgment case involves possible questions of presidential immunity, and that has Carroll’s attorneys concerned.
“A conjoined case, Carroll’s lawyers fear, could result in both judgments being wiped out,” The Guardian reports.
The president has also made clear he is no fan of Judge Kaplan, after the jurist made several rulings that “angered” Trump.
“What else can you expect from a Trump Hating, Clinton appointed judge, who went out of his way to make sure that the result was as negative as it could possible be,” Trump wrote on Truth Social in 2023, “speaking to, and in control of, a jury from an anti-Trump area which is probably the worst place in the US for me to get a fair ‘trial’.”
Image via Reuters
Platner Scorched Over ‘Taking Time’ Video After New Accusation
Trump Sparks Fury Online After Posting Unblurred Video of Muslim Kindergartners in Hijabs
One Legal Maneuver Threatens to Undo Everything E. Jean Carroll Won
Inside the Group Helping MAGA Voters Walk Away — And What Finally Pushed Them
