Federal Judge Protects Speech of Foreign Students, Limits Administration’s Deportation Powers

Win for Stanford Student Newspaper

We’ve long explored a gray area of the law: Because the Constitution does not specify that the First Amendment applies only to U.S. citizens, to what extent can the speech rights of noncitizens present in the United States be restricted?

In actions against outspoken anti-Israel activists on U.S. campuses, Secretary of State Marco Rubio has relied on a 1952 statute that allows the government to deport certain noncitizens if the secretary determines that their presence or activities would have “potentially serious adverse foreign policy consequences” for the United States.

On Friday, a federal judge in Northern California ruled that the Trump administration cannot use the challenged provisions of this law to revoke visas or deport lawfully present noncitizens because officials disapprove of their political speech.

When Congress enacted this deportation provision, it stated that the authority should be used “sparingly,” and only under “unusual circumstances.” The intent was to protect Americans at home and abroad from exceptional threats, not to suppress ordinary political criticism. In one recent case, however, a Tufts University student from Turkey was arrested and detained after co-signing an op-ed that criticized her university’s response to the war in Gaza and urged it to divest from companies with ties to Israel.

The case settled last week was brought by The Stanford Daily and an international student who argued that the administration’s campaign against pro-Palestinian writers caused noncitizens to censor themselves.

U.S. District Judge Noël Wise ruled that the challenged portions of the Immigration and Nationality Act violate the First Amendment when used to punish constitutionally protected expression. She also found that the provisions, which empower the Secretary of State to initiate deportation proceedings or revoke a visa on sweeping and ill-defined grounds, violate the Fifth Amendment’s guarantee of due process.

Judge Wise wrote:

“In the United States, free speech, including the freedom to criticize the government and its leaders, is not a sign of our democracy’s fragility. It is evidence of its strength.

“That strength is diminished when members of our society – citizens and noncitizens alike – must self-censor and ‘behave’ or suffer the government’s retaliation. This downward spiral is antithetical to our Constitution that recognizes our right to speak freely. Here you can simultaneously hate the content of a person’s speech and love the country that cherishes the freedom to allow it.”

The administration may strongly condemn speech that attacks Israel, excuses terrorism, or promotes antisemitism. So may every American. But protected speech does not lose its constitutional status because it is offensive, inflammatory, or directed against an American ally.
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The government still retains broad authority to exclude dangerous people and punish material support for terrorism. But this opinion holds that the government cannot use immigration law as a shortcut to punish mere opinions.

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