National Legal Director, American-Arab Anti-Discrimination Committee X: @jeninyounesesq
On Sep. 30, a federal judge in Boston issued a remarkable, 161-page ruling in American Association of University Professors, et al. v. Rubio, et al., rebuking the Trump administration for its multifaceted policies detaining, deporting and terrorizing noncitizens for pro-Palestine speech and political activity. Recognizing the significance of his decision, Judge William G. Young—a Reagan appointee—described the case as "perhaps the most important to ever fall within the jurisdiction of this district court" and deemed the defendants' policy of "revoking noncitizens' visas solely on the basis of political speech…not only unconstitutional, but a thing virtually unknown to our constitutional tradition." The decision is a boon for free speech advocates and pro-Palestine actors fighting repression both in occupied Palestine and the United States today.
The opinion is unique not only in its scathing tone, but also in its content. Other federal courts—indeed, all so far to have addressed the general issue—have found in preliminary rulings that the Trump administration appears to be violating the First Amendment rights of noncitizens such as Mahmoud Khalil, Rumeysa Ozturk, Mohsen Madawi and Badar Khan Suri by detaining them for pro-Palestine speech. But Young's opinion is the first to deliver a sweeping condemnation of the administration's policies, authoritatively concluding that the First Amendment forbids them.
Young's opinion is the first to deliver a sweeping condemnation of the administration's policies, authoritatively concluding that the First Amendment forbids them.
- Jenin Younes
In contrast to the other decisions on the subject, this ruling did not result from challenges by individuals already targeted for punishment by the administration. The abovementioned individuals were not parties to the suit. Rather, the judge analyzed the circumstances surrounding their detentions to assess the credibility of the plaintiffs' claims that the administration's policies unconstitutionally chilled their speech.
The American Association of University Professors, the Middle Eastern Studies Association and the Knight First Amendment Institute at Columbia University brought this lawsuit, with several of their members alleging that Trump's deportation policy made them fearful of voicing their views about Israel-Palestine. For example, one plaintiff—Professor Megan Hyska, a Canadian citizen in the United States on a green card—testified that she refrained from publishing opinion pieces after watching a video of Ozturk being seized off the street by masked Immigration and Customs Enforcement (ICE) agents, solely for writing a pro-Palestine op-ed.
Similarly, a noncitizen German professor testified that after the Ozturk arrest, he decided to "keep his head down completely," opting to stop attending protests, signing onto letters and writing. He also canceled international travel to visit his terminally ill older brother.
Courts deem such circumstances a "chilling effect," meaning the government's policies or laws have the consequence of frightening people into silence. That effect is considered a cognizable harm in constitutional law. In other words, one does not have to wait until someone is behind bars to challenge government law or policy on First Amendment, free speech grounds.
Young agreed with the plaintiffs that the administration's policies have both the intent and effect of deterring plaintiffs from expressing pro-Palestine views for fear of retribution from the government defendants. Contrasting the claims of the government witnesses with the reasons several of the plaintiffs proffered for self-censoring, the judge remarked: "The Public officials argued at trial that the fears motivating these episodes of self-censorship were largely self-inflicted, at trial quoting [Danish philosopher Søren] Kierkegaard that 'anxiety is the dizziness of freedom…It is an odd kind of freedom that compels one to leave writing unpublished, leadership positions unpursued and terminally ill relatives unvisited.'"
Crucially, Young carefully evaluated the administration's claims that individuals like Khalil and Ozturk are deportable under an obscure provision of the Immigration and Nationality Act (INA) that allows the Secretary of State to remove a noncitizen whose "proposed activities…have potentially serious adverse foreign policy consequences for the United States." The judge determined that the various people targeted by the administration had done nothing more than engage in protected political speech and activity, and that neither the Constitution nor the INA allows for such action.
Young also recognized that the administration relied, to a great extent, on characterizing pro-Palestine protests that took place on various college campuses throughout the nation as unlawful, involving vandalism and anti-Semitic harassment. Government officials attempted to attribute that alleged conduct to specific individuals—including Khalil, Ozturk and Madawi—despite the paucity of evidence that they had done anything but engage in protected political speech.
Young agreed with the plaintiffs that the administration's policies have both the intent and effect of deterring plaintiffs from expressing pro-Palestine views for fear of retribution from the government defendants.
- Jenin Younes
The judge's thorough dissection of the facts surrounding these cases is important because the administration has garnered public support for its policies by painting a picture of Palestine advocates as lawless, violent and terrorist-supporting individuals, attributing any misconduct at any protest to everyone who opposes dropping bombs on babies in Gaza. Fortunately, the law requires a showing of individual misconduct, undermining the administration's reliance on the public's disdain for the pro-Palestine movement to dampen enthusiasm for safeguarding the First Amendment rights of pro-Palestine activists.
Averring that he was not taking a side in the Israel-Palestine conflict, Young observed that his role was "limited to safeguarding the rights of all persons lawfully present in this country. This includes the freedom of speech that allows those people to understand each other and to debate. If 'terrorist' is interpreted to mean 'pro-Palestine' or 'anti-Israel' and 'support' encompasses pure political speech, then core free speech rights have been imperiled." As this passage, among others, demonstrates, Young saw through the government's cynical attempts to characterize pro-Palestine speech and activity as antisemitic, "pro-Hamas" or materially supportive of terrorism, rejecting the claim that political speech alone can constitute "undermining U.S. foreign policy" within the meaning of the INA.
Arguably the most important aspect of the decision, Young held that under the First Amendment and governing jurisprudence, and contrary to the Trump administration's position, noncitizens have free speech rights commensurate with citizens. As the text of the First Amendment reads, "Congress shall make no law…abridging the freedom of speech." It is framed as a restraint on government and does not condition the right to free speech on the speaker's citizenship status.
Judge Young concluded that "as matter of law that Secretaries Noem and Rubio and their several agents and subordinates acted in concert to misuse the sweeping powers of their respective offices to target noncitizen pro-Palestinians for deportation primarily on account of their First Amendment protected political speech."
He continued: "They did so in order to strike fear into similarly situated noncitizen pro-Palestinian individuals, pro-actively (and effectively) curbing lawful pro-Palestinian speech and intentionally denying such individuals (including the plaintiffs here) the freedom of speech that is their right. Moreover, the effect of these targeted deportation proceedings continues unconstitutionally to chill freedom of speech to this day."
Writing with unusual candor, Young mused that he was uncertain of the appropriate remedy to redress the plaintiffs' injuries. He noted that President Trump cannot be relied upon to direct his subordinates to follow an injunction: "The President's palpable misunderstanding that the government simply cannot seek retribution for speech he disdains poses a great threat to Americans' freedom of speech." Thus, rather than fashion an injunction in this decision (a written command that government officials cease their unlawful conduct), the judge scheduled a hearing to determine the appropriate remedy and enforcement mechanism to ensure the administration does not simply disregard his order.
The government will almost certainly appeal Young's decision to the First Circuit Court of Appeals and this case—or a similar one—could land in the Supreme Court. If that eventuality occurs, the Supreme Court must recognize that the administration's policies gravely violate the Constitution and the principles undergirding it that bind the nation.
Ending his long decision, Judge Young wrote: "I fear President Trump believes the American people are so divided that today they will not [original emphasis] stand up, fight for and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected."
Then, Young concluded, asking, "Is he correct?"
If we are to preserve any semblance of freedom in our country, the answer from the higher courts and the population must be a resounding "no."
