A First Amendment Lawsuit Highlights the Chilling Impact of Speech-Based Deportation on Student Journalists
The Foundation for Individual Rights and Expression is seeking an injunction that would protect noncitizens at The Stanford Daily from arrest and removal because of their published work.
After the Trump administration began targeting international students for arrest and deportation based on their anti-Israel views, editors at The Stanford Daily say, noncitizen staff members began to worry that their journalism could jeopardize their ability to remain in the United States. As a result, several writers at Stanford University's student newspaper declined to cover stories involving the war in Gaza or the Israeli-Palestinian conflict. In some cases, they even asked that their previous work be removed from the internet, lest it jeopardize their visas. The editors also heard from sources whose views on Israeli policy or Palestinian rights had been quoted in the paper, who asked that their names and photos be excised from online articles.
Those chilling effects are at the center of a lawsuit that the Foundation for Individual Rights and Expression (FIRE) filed on Wednesday in the U.S. District Court for the Northern District of California. In addition to The Stanford Daily, the plaintiffs include two former university students, identified as Jane Doe and John Doe, who say they have censored themselves in response to the government's speech-based deportation policy. That policy, FIRE argues, violates the First Amendment by punishing protected speech based on content and viewpoint. The lawsuit says the policy also violates the Fifth Amendment's guarantee of due process because it is unconstitutionally vague.
The plaintiffs are seeking declaratory judgments on those points and injunctions barring the defendants, Secretary of State Marco Rubio and Homeland Security Secretary Kristi Noem, from seeking to deport Stanford Daily staff members, John Doe, or Jane Doe based on speech protected by the First Amendment. "In the United States of America, no one should fear a midnight knock on the door for voicing the wrong opinion," says FIRE attorney Conor Fitzpatrick. "Free speech isn't a privilege the government hands out. Under our Constitution it is the inalienable right of every man, woman, and child."
The lawsuit focuses on the Trump administration's use of two Immigration and Nationality Act (INA) provisions. One of them, 8 USC 1227 (as qualified by 8 USC 1182), makes a noncitizen subject to removal when the secretary of state determines that his "beliefs, statements, or associations," although "lawful," threaten to "compromise a compelling United States foreign policy interest." Rubio invoked that provision against former Columbia University graduate student Mahmoud Khalil, a legal permanent resident who was arrested on March 8 and detained for three months because of his participation in campus protests against the war in Gaza.
The other INA provision, 8 USC 1201, authorizes the secretary of state to "at any time, in his discretion, revoke" a "visa or other documentation." Rubio invoked that provision against Tufts University graduate student Rumeysa Ozturk, who was arrested on March 25 and detained for a month a half because she had co-authored a Tufts Daily op-ed piece that expressed support for the Boycott, Divestment, Sanctions movement against Israel.
The Trump administration has detained several other students and scholars on similar grounds, arguing that their pro-Palestinian advocacy amounted to antisemitism or rhetorical support for Hamas. The arrestees—including Khalil, the first target—dispute those characterizations. But even if they were accurate, the speech at issue would still be constitutionally protected.
President Donald Trump and his underlings concede as much. During his 2024 campaign, the lawsuit notes, Trump repeatedly promised to arrest and deport student protesters whose advocacy he viewed as antisemitic, pro-terrorist, or anti-American, even if they had not broken the law by engaging in violence, vandalism, or other disruptive activities. Rubio likewise conceded that Khalil's activism was "otherwise lawful," and he conflated Ozturk, whose only offense seems to be publishing that op-ed piece, with vandals and rioters.
White House Press Secretary Karoline Leavitt said Khalil was removable because he was guilty of "siding with terrorists, Hamas terrorists who have killed innocent men, women and children." John Armstrong, senior bureau official at the State Department's Bureau of Consular Affairs, has testified that, in determining whether someone is removable, support for terrorism might be inferred from speech describing Israel as an "apartheid state," "calling for an arms embargo on Israel," or "criticizing Israel's actions in Gaza." Deputy Homeland Security Secretary Troy Edgar explained that Khalil was subject to deportation because he "put himself in the middle of the process of basically pro-Palestinian activity."
The Trump administration does not claim any of this advocacy, however it is characterized, falls outside the rights guaranteed by the First Amendment. Rather, it claims those rights do not apply in the context of visa revocation or deportation.
The Supreme Court has not definitively settled that question. But in the 1945 case Bridges v. Wixon, it recognized that "freedom of speech and of press is accorded aliens residing in this country." And although the Court subsequently allowed deportations based on Communist Party membership, that decision hinged on a government-friendly First Amendment standard that the justices later renounced—a standard that also allowed criminal punishment of U.S. citizens based on their political affiliations.
Several federal appeals courts have held that the First Amendment does constrain deportation decisions. That question is at the center of a lawsuit that a federal judge in Boston is considering. The American Association of University Professors and the Middle East Studies Association are asking U.S. District Judge William Young for a preliminary injunction against the Trump administration's "ideological deportation policy," which they say amounts to blatant viewpoint discrimination and government retaliation for speech protected by the First Amendment.
If Young does issue an injunction, it could protect the noncitizen members of those organizations. But in light of the Supreme Court's recent ruling against "universal injunctions," it won't extend to people outside those groups, such as student journalists at Stanford. In addition to seeking protection for those students, FIRE hopes its lawsuit will ultimately result in "a landmark ruling that the First Amendment forbids the government from deporting lawfully present noncitizens for constitutionally protected speech."
Toward that end, the lawsuit highlights the impact of the Trump administration's speech-focused deportation policy on The Stanford Daily. "Lawfully present noncitizen students working at and contributing to Stanford Daily have self-censored expression for fear of visa revocation, arrest, detention, and deportation," it says. The complaint cites a student who quit the paper after Khalil's arrest; a reporter who researched a story about "a vigil that brought together Jewish and Palestinian families to honor those who died in the conflict in Gaza" but decided that publishing it would be too risky; and three staff members who, for the same reason, asked the paper to remove articles they had already published. According to the lawsuit, The Stanford Daily "has received other requests from current and former writers, asking it to remove opinion editorials they published, quotes they provided, or their names in bylines or articles."
The complaint adds that The Stanford Daily "has received numerous requests from lawfully present noncitizens who either wrote or were quoted or pictured in articles to remove their name, image, or article for fear of adverse immigration action based on their speech." Since March, FIRE says, "international students have also largely stopped talking to Stanford Daily journalists and, when they do speak, often refuse to speak on the record, particularly when it comes to discussing topics like Israel and Palestine."
In short, "there's real fear on campus," says Stanford Daily Editor in Chief Greta Reich, "and it reaches into the newsroom. I've had reporters turn down assignments, request the removal of some of their articles, and even quit the paper because they fear deportation for being associated with speaking on political topics, even in a journalistic capacity. The Daily is losing the voices of a significant portion of our student population."
The lawsuit describes a similar chilling impact on former student Jane Doe. It says she had "publicly criticized American foreign policy, particularly its relationship with Israel." But after the Canary Mission, a private organization that highlights activists it deems "anti-Israel," listed her on its website, she decided to stop "publishing and voicing her true opinions regarding Palestine and Israel." She also "deleted a social media account to guard against retaliation for past expression." The lawsuit notes that the Department of Homeland Security has relied on information from the Canary Mission to identify potentially deportable individuals.
Prior to Khalil's detention, which Trump said was "the first arrest of many to come," John Doe "attended pro-Palestinian protests and published pro-Palestinian/anti-Israel commentary online," the lawsuit says. He "participated in chants including, 'From the river to the sea, Palestine will be free,' as well as chants accusing Israel of committing 'genocide.'" But after Khalil's arrest, he "refrained from publishing a study containing criticism of Israel's actions in Gaza, which John Doe views as a genocide backed by the United States' foreign policy." Although he "has resumed engaging in protected pro-Palestinian/anti-Israel commentary," he is aware that "his continuing expression places him in danger" of visa revocation and deportation.
One need not share the anti-Israel views expressed by Stanford Daily contributors, Jane Doe, or John Doe to recognize that all of this speech is constitutionally protected. Legally, the only question is whether that means those opinions cannot justify revoking their visas and expelling them from the United States.
"Two lawful residents of the United States holding the same sign at the same protest shouldn't be treated differently just because one's here on a visa," says FIRE Legal Director Will Creeley. "The First Amendment bars the government from punishing protected speech—period. In our free country, you shouldn't have to show your papers to speak your mind."
