Trump admin waffles in court on whether pro-Palestinian foreigners have full First Amendment rights

Yahoo

07-07-2025

A trial on a First Amendment lawsuit challenging the Trump administration's drive to deport pro-Palestinian academics quickly confronted a thorny legal issue Monday: whether foreigners in the U.S. enjoy the same free speech rights as American citizens.
The administration's stance on that critical question proved murky. Under questioning by U.S. District Judge William Young in his Boston courtroom, Justice Department attorney Victoria Santora initially said non-citizens have the same First Amendment rights as citizens.
'People in the United States share the same rights under the First Amendment,' Santora said.
'That's an answer and I'll hold you to that,' Young responded.
However, about 10 minutes later, as Santora concluded her opening statement, she said she may have misspoken and needed to qualify her answer.
'The answer, I think, is not necessarily, based on their status in the country,' Santora said. 'There are nuances to the First Amendment,' Santora said, pointing to concerns about 'national security, foreign policy, immigration enforcement and enforcement discretion.'
The exchange came as Young opened what's expected to be a two-week, non-jury trial on a lawsuit filed in March by the American Association of University Professors and the Middle East Studies Association. The case comes as the Trump administration has intensified its crackdown on pro-Palestinian academics under a rarely used provision of immigration law that allows Secretary of State Marco Rubio to seek the deportation of students on foreign policy grounds. It's the first major trial over President Donald Trump's policies since he returned to office in January.
The academic groups claim that the Trump administration is chilling the speech of foreign students and faculty members on U.S. college campuses by detaining pro-Palestinian activists and attempting to deport them. Judges in recent weeks have blocked the administration's efforts in several high-profile cases, including the case of Mahmoud Khalil, the recent Columbia student who organized pro-Palestinian campus protests and who was detained for more than three months before a federal judge ordered his release. The lawsuit also alleges that the administration's targeted enforcement of immigration laws is impairing the right of American students and faculty to hear the views of their non-citizen colleagues.
During opening statements in the case, a lawyer for the academic organizations, Ramya Krishnan, told Young that Trump's policy was muffling the intellectual climate on many campuses.
'Not since the McCarthy era have immigrants been the focus of such intense repression for lawful political speech,' said Krishnan, an attorney with the Knight First Amendment Institute at Columbia University. 'The policy creates a cloud of fear over university communities and it is at war with the First Amendment.'
However, Santora insisted that the high-profile efforts to deport scholars at Columbia, Tufts, Georgetown and elsewhere were the result of those individuals' 'activities' and not their speech.
'There is no ideological deportation policy or anything like it under any other name,' Santora said. 'There is no policy to revoke visas or remove non-citizens on the basis of protected speech or on any other unlawful basis … There is no immigration enforcement strategy based on protected speech.'
In her opening, Santora mentioned the immigration enforcement efforts at issue as being responses to antisemitism on college campuses as well as a series of terrorist attacks foreigners committed in the U.S. in recent decades, including the bombing of the World Trade Center in 1993, the attacks on those buildings and the Pentagon on Sept. 11, 2001, and the 2013 bombing of the Boston Marathon finish line.
In questions and interjections during the openings, Young sounded skeptical about the government's suggestion that speech about issues of national security or immigration enforcement might be adequate grounds to deport foreigners otherwise legally in the U.S.
'The president ran on a policy of immigration enforcement, which he's attempting to carry out and whether individuals support that or oppose that, that all that seems to me political speech,' the judge said.
Young did acknowledge the federal law Rubio has invoked in the cases of several students, which allows for the deportation of individuals whose presence in the U.S. is deemed to undermine U.S. foreign policy.
'There is this statute that has been on the books for some time. Congress has empowered the secretary personally to revoke visas if, in the secretary's determination, that the presence of the individual embarrasses the foreign policy of the United States,' the judge said. 'That's lawful, isn't it?'
'Whatever Congress intended as to [the law's] scope, the First Amendment prohibits the government from deporting non-citizen students and faculty based on their political viewpoint,' Krishnan said.
Krishnan said there might be 'narrow applications' of that law that would be constitutional, like using it to expel a foreign official based in the U.S. However, she noted that some of the deportation attempts at issue in the lawsuit, including that of Tufts student Rumeysa Ozturk, did not rely on the foreign policy-related statute.
Still, Young signaled that figuring out how the First Amendment limits the government's ability to deploy that statute is a central issue in the trial.
'How do I harmonize the two?' the judge asked. 'How those two mesh is a real problem in this case.'
The first two witnesses to testify in the case were both academics: Megan Hyska, a philosophy professor at Northwestern University, and Nadje Al-Ali, a professor of anthropology and Middle East studies at Brown University. Both said they were supporters of the Boycott, Divestment and Sanctions (or BDS) movement, which is aimed at putting pressure on Israel over its treatment of Palestinians.
Hyska and Al-Ali said they'd reined in some of their activities in the wake of the high-profile arrests of non-U.S.-citizen academics who'd been vocal supporters of Palestinian rights, such as Khalil and Ozturk.
Hyska, who is Canadian, said she wore a mask to a protest rally to obscure her identity and did not release an op-ed she'd written critical of the Trump administration because she feared she could be expelled from the U.S.
'It struck me that I, too, could be potentially detained and deported on the basis of publishing something like this,' Hyska said. However, she conceded she'd continued to sign letters supporting academic colleagues who'd engaged in pro-Palestinian advocacy.
Al-Ali, who was born in Germany and has permanent residence in the U.S., said she abandoned both a cycling trip to Sicily and a research trip to Lebanon and Iraq because she feared that her leadership role at Brown's Center for Middle East Studies would attract the attention of immigration officials when she tried to return to the U.S. She also said she cleaned up her social media feeds before returning from a trip abroad.
'My Instagram page was all dogs, cats and recipes. Everything else was deleted,' Al-Ali said.