The Volokh Conspiracy
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Court Orders Release of Tufts Foreign Student Detained For Her Speech
The ruling is a victory for the proposition that the First Amendment applies to immigration and visa restrictions.
Yesterday, federal District Judge William K. Sessions, III, of the District of Vermont ordered the immediate release of Tufts graduate student Rumeysa Ozturk, whom ICE had detained and slated for deportation based on her anti-Israel speech. There does not appear to be a written decision in the case. But here is a summary of the background of the case, and what the judge said orally:
Tufts University doctoral student Rümeysa Öztürk was released from a Louisiana detention center Friday, six weeks after masked federal agents took her into custody amid the Trump administration's effort to deport noncitizens who have protested against the war in Gaza.
Hours after US District Judge William K. Sessions III ordered her immediate release, a smiling Öztürk was surrounded by a group of supporters who chanted "Rümeysa! Rümeysa!" as she walked out of the detention center Friday evening….
The Department of Homeland Security claimed that Ozturk "engaged in activities in support of Hamas, a foreign terrorist organization that relishes the killing of Americans." However, the only evidence it could provide, even after prodding from Sessions, was an op-ed Ozturk helped write that called on Tufts to divest from Israel.
Ozturk filed a habeas corpus petition challenging her arrest and detention….
Her arrest came a year after Öztürk co-authored a campus newspaper op-ed that was critical of Tufts University's response to the war in Gaza, and her attorneys have said that she was targeted by the administration in an attempt to chill pro-Palestinian speech in violation of her constitutional rights. The 30-year-old, originally from Turkey and on a valid F-1 student visa, was shuttled through multiple states after her arrest and suffered through a series of asthma attacks without adequate medical care, according to her attorneys.
Öztürk, who has not been charged with any crime, was accused by the Trump administration of participating in activities in support of Hamas. Neither the administration nor attorneys for the Department of Justice presented any evidence of her alleged activities in court.
Sessions presided over the more than three-hour hearing, where four witnesses – including Öztürk – testified about her community engagement work and her asthma. Sessions said Öztürk had raised "substantial claims" of both due process and First Amendment violations.
"Continued detention potentially chills the speech of the millions and millions of individuals in this country who are not citizens. Any one of them may now avoid exercising their First Amendment rights for fear of being whisked away to a detention center," Sessions said.
Sessions noted that for multiple weeks, except for the op-ed, the government failed to produce any evidence to support Öztürk's continued detention. "That is literally the case," Sessions said. "There is no evidence here as to the motivation absent the consideration of the op-ed."
The judge ordered her release without any travel restrictions or ICE monitoring.
It is obvious that Ozturk's op ed was the kind of speech protected by the First Amendment. I have previously written on why there is no immigration exception to the First Amendment, nor does it matter that a student visa is not itself a constitutional right:
The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents. The Supreme Court held as much in a 1945 case, where they ruled that "Freedom of speech and of press is accorded aliens residing in this country."
A standard response to this view is the idea that, even if non-citizens have a right to free speech, they don't have a constitutional right to stay in the US. Thus, deporting them for their speech doesn't violate the Constitution. But, in virtually every other context, it is clear that depriving people of a right as punishment for their speech violates the First Amendment, even if the right they lose does not itself have constitutional status. For example, there is no constitutional right to get Social Security benefits. But a law that barred critics of the President from getting those benefits would obviously violate the First Amendment. The same logic applies in the immigration context.
The Cato Institute/FIRE amicus brief in Ozturk's case elaborates on the reasons why the First Amendment applies in much greater detail.
In earlier posts on this topic, I have urged universities to file lawsuits challenging Trump's speech-based deportation policy, rather than letting students like Ozturk fend for themselves. I was happy to see that many schools (including my undergraduate alma mater Amherst College) filed an amicus brief supporting a lawsuit brought against the policy by the American Association of University Professors (the court recently issued a preliminary ruling in favor of AAUP, allowing the case to go forward). But universities should do more to protect their students.
As I have previously noted, I have little sympathy for recent anti-Israel campus protests, and for the views of many of the foreign students targeted for deportation. But freedom of speech applies regardless of the merits of the opinions targeted by censors. And the sorts of vague standards used to justify deporting Ozturk can easily be turned against adherents of a wide range of other views, including those espoused by people on the political right, as well as the left.
The litigation over speech-based deportations will continue in this and other cases, and this ruling may well be appealed. But it's a good sign, nonetheless.
