BOSTON, Mass. — The government cannot use arrests, detention and the threat of deportation to frighten people into silence for expressing political views it disfavors.
That is the warning being sounded by civil liberties groups as Trump administration officials appeal a federal judge’s finding that they violated the First Amendment by deliberately seeking “to chill the rights to freedom of speech and peacefully to assemble” through highly publicized deportation actions against lawful U.S. residents such as Mahmoud Khalil and Rümeysa Öztürk. The government has justified its actions by invoking a rarely used provision of immigration law allowing the Secretary of State to seek the removal of noncitizens deemed harmful to U.S. foreign policy interests.
The Rutherford Institute joined a coalition of civil liberties organizations led by FIRE (Foundation for Individual Rights and Expression) in filing an amicus brief opposing the government’s appeal to the U.S. Court of Appeals for the First Circuit in AAUP v. Rubio. The coalition argues that the First Amendment prohibits the government from discriminating against noncitizens based on their viewpoints or using deportation to punish constitutionally protected speech. The Institute also joined a similar amicus brief led by the Cato Institute in The Stanford Daily v. Rubio, which raises similar concerns over government efforts that have caused noncitizens to self-censor out of fear that their political speech could result in detention or deportation.
“The power to deport cannot be allowed to become a weapon of political censorship,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Arrest a few people for speaking out, make examples of them, and you don’t have to arrest everyone else. Fear will do the censoring for you. The First Amendment exists precisely to prevent government officials from deciding which political viewpoints may safely be expressed. Once government is permitted to punish people for their political beliefs, no one’s speech is safe.”
A group of academic organizations with noncitizen members sued officials in the Trump administration, alleging that the administration’s public statements and deportation actions caused their members to censor themselves out of fear that they would be targeted like Khalil and Öztürk. In effect, the government did not have to arrest or deport every dissenting speaker because its treatment of a few was enough to make others afraid to speak.
Following a trial, U.S. District Judge William G. Young—who was nominated to the federal bench by President Ronald Reagan in 1985—found that administration officials had intentionally sought “to target a few for speaking out and then use the full rigor of the Immigration and Nationality Act (in ways it had never been used before) to have them publicly deported with the goal of tamping down pro-Palestinian student protests and terrorizing similarly situated non-citizen (and other) pro-Palestinians into silence.” The court also pointed to the manner in which the arrests were carried out—including arrests by masked agents, sometimes on the street without prior notice, followed by transportation across the country for detention—as evidence of the chilling effect. Judge Young found that “the manner and method of their execution was adopted, or at least approved of . . . in part intentionally to chill the speech of other” similarly situated speakers.
Rejecting explanations for ICE agents wearing masks as “disingenuous, squalid and dishonorable,” the judge concluded that “ICE goes masked for a single reason—to terrorize Americans into quiescence.” The court found that Trump administration officials had misused “the sweeping powers of their respective offices” to “strike fear into” noncitizens and curb lawful pro-Palestinian speech. Calling the case “perhaps the most important ever to fall within the jurisdiction of this district court,” Judge Young warned that if a federal agency such as the Department of Homeland Security can be weaponized to suppress the free speech rights of “a small, hapless group of non-citizens in our midst,” other agencies can likewise be weaponized against “the President’s ever growing list of ‘enemies’ or opponents he ‘hates.’” As Judge Young observed, “the only constitutional rights upon which we can depend are those we extend to the weakest . . . among us.”
In pushing back against the Trump administration’s efforts to overturn Judge Young’s ruling, the civil liberties coalition argues that the administration’s actions echo episodes in American history in which immigration powers were used to suppress political dissent and resemble practices in countries such as China, Russia and Saudi Arabia, where governments punish speech critical of those in power.
Conor T. Fitzpatrick and others with FIRE advanced the arguments in the AAUP v. Rubio amicus brief. Thomas A. Berry, Dan Greenberg, and Samuel Rutzick with the Cato Institute, as well as EmilyRose Johns, advanced the arguments in The Stanford Daily v. Rubio amicus brief.
Article posted with permission from John Whitehead
