Late last week, I spoke with Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University, about an ongoing case involving questions of free speech, campus protest, and deportation. Jaffer is the former deputy legal director of the ACLU, where he litigated a number of high-profile cases relating to 9/11, surveillance, torture, and human rights. In March of this year, Knight filed a lawsuit challenging what it describes as the Trump administration’s policy of “ideological deportation” – targeting noncitizens for arrest, detention, and deportation on the basis of political speech that “everybody understood until very recently to be entirely legitimate and constitutionally protected expression and association.” Mahmoud Khalil is perhaps the most widely known target of this policy, which the Knight Institute maintains violates the First Amendment.
But to what extent does the First Amendment cover the speech and activity of noncitizens? And how do we reconcile our country’s robust history of campus protest and the principles of free expression with the reality of executive control over immigration and deportation decisions? And how do we, as a legal matter, parse speech that is at once political and violent? Jameel and I delve into many of these thorny legal and policy questions, including the inherent difficulty – if not impossibility – of discerning what certain speech really means. There were so many more questions I wanted to ask him that we unfortunately didn’t have time for. But this is the kind of case that shows just how endlessly fascinating and complicated the law is. Whatever your politics, and whatever end of the spectrum you find yourself on this particular issue, the answers to these line-drawing questions about what our Constitution does – or should – allow individuals to say and do remain elusive.
The transcript of our conversation below has been edited for length and clarity.
Celine Rohr: Just to begin, can you remind folks what happened exactly with Mahmoud Khalil and others that prompted your lawsuit?
Jameel Jaffer: There has been a wave of arrests of foreign students who participated in pro-Palestinian protests on campus. This is what President Trump promised as a candidate and then after he took office, he issued a series of executive orders that made clear that foreign students would be vetted for activism and expression that was critical of Israel, or pro-Palestinian expression that President Trump and other senior officials have conflated with pro-Hamas or anti-Semitic or pro-jihadist expression. And on that basis, they have said they will arrest and detain and deport students who have engaged in it, and over the last few months, they have made good on that threat and arrested multiple students at Columbia – Mahmoud Khalil, Mohsen Mahdawi, Yunseo Chung, and students from other schools as well. Rumeysa Ozturk, who was seized on the streets from a public street in Somerville, Massachusetts. So a whole set of students who have been arrested and put behind bars in many cases, and in all cases, threatened with deportation. A couple of these students are green card holders. And in addition to the students who’ve been arrested and detained, there are also several hundred whose visas have been cancelled on the basis of their involvement in this kind of expression and advocacy.
So there is this very broad policy of ideological deportation, of targeting students who’ve engaged in pro-Palestinian advocacy for arrest and deportation. The case that the Knight Institute has filed on behalf of the American Association of University Professors and the Middle East Studies Association is a challenge to the constitutionality of that policy. The challenge we filed is an effort to get legal relief at a policy level. So, not just limited to the case of any specific student, but rather an effort to get the courts to strike down the policy, period.
And we think that that relief is appropriate and necessary because the harms of this policy are felt not only by the students who are arrested and threatened with deportation, although they obviously are the ones who feel it most acutely, but the policy also casts a kind of chill over expression and advocacy on university campuses across the country.
Celine Rohr: So in the case that you are currently litigating, part of the argument you’re making is that this policy of ideological deportation violates the First Amendment rights of the plaintiffs you’re representing – namely, these academic associations – to hear from and associate with these non-citizen students and faculty members whose speech, as you’ve described, has been chilled or censored by this deportation policy. Can you explain the different First Amendment rights at issue in this case and the distinctions between the scope of First Amendment protections available to citizens versus non-citizens?
Jameel Jaffer: The faculty associations we represent include both citizens and non-citizens. And the First Amendment interests of those two different groups of people are distinct. The foreign faculty are worried about being targeted on the basis of their expression, advocacy, and association.
The U.S. citizen members of those associations are worried not about being targeted themselves, but about the implications of others being targeted. One implication of the government silencing a non-citizen is that the non-citizen doesn’t get to speak, but the other implication is that U.S. citizen listeners don’t get to hear the non-citizen speak. There is a line of cases in which the Supreme Court has recognized that the First Amendment protects the rights not only of speakers but of listeners as well. And some of those cases involved citizens inviting foreign citizens from outside the country to come speak inside the country.
And in those cases, the Court emphasized that the First Amendment protects the right to listen, the right to hear, the right to receive information. And whatever the rights of the non-citizen speakers, the citizen listeners have First Amendment rights that are implicated by the silencing of non-citizen speakers.
And this is something that we described in the complaint, that there is now a climate of fear and repression on university campuses across the country with foreign students and faculty afraid to participate in political protests, thinking twice about publishing certain kinds of scholarship, thinking twice about which organizations they’re willing to join, what they post on social media, and even what they say in private conversations out of fear that their political speech will become the basis for arrest or detention and deportation.
And that climate affects all of us, not just the non-citizen students and faculty on American university campuses, but the citizen students and faculty as well.
So your second question was about the First Amendment rights of non-citizens, and this is one of the really big First Amendment questions that is presented in this case. The government has been quite slippery about its position on this question. But maybe the best way of discerning the government’s view is just to look at what it’s doing. Look at these cases in which the government is arresting and threatening to deport people on the basis of their speech, and the only thing one can conclude is that the government views the First Amendment rights of non-citizens to be, if not non-existent, at least of a much narrower scope than the rights of citizens.
Our view is that with extremely limited exceptions that are not relevant in this particular context, the First Amendment rights of non-citizens are coextensive with the First Amendment rights of citizens, and we say that based on a few things.
One is a Supreme Court case called Bridges v. Wixon (1945), which involved the attempted deportation of an Australian labor leader where the Court said that non-citizens in the U.S. enjoy the protections of the First Amendment – and it said that in the context of a case in which the government was trying to deport this person on the basis of his political associations. And there are many more recent cases in which the courts of appeals have held that non-citizens enjoy the full protection of the First Amendment.
But there are also very good reasons for that doctrinal rule. If you were to hold that non-citizens could be deported on the basis of political viewpoint, that would really be not just a kind of marginal adjustment to the First Amendment rights of non-citizens, it would really eliminate those rights altogether because the threat of deportation is always hovering over the head of a non-citizen. If you know that one possible sanction for your political speech is deportation, then you are just not going to have the right to engage in political speech, or you’ll engage in political speech only insofar as you believe the government will agree with you or tolerate your points.
So, the Trump administration is trying to present this question of whether the First Amendment applies to non-citizens in the deportation context as if it’s a question of peripheral importance to the larger question of whether non-citizens have First Amendment rights. But I think it’s actually the whole ball game. If non-citizens don’t have the right not to be deported on the basis of viewpoint, they don’t have First Amendment rights at all.
But the other reason for this doctrinal rule is that our political community would be impoverished if we didn’t have the voices of non-citizens. Non-citizens often have unique insights about particular kinds of issues. There are some things that only non-citizens know – like what it’s like to be held in ICE detention centers, or what it’s like to enter the U.S. as a non-citizen. And all of that we would be deprived of if they didn’t have the right to speak freely.
Celine Rohr: So, going into a little bit of the government’s argument in defense. My impression is that, notwithstanding these values that are enshrined in the First Amendment, the reality is that immigration decisions have largely been within the purview and discretion of the executive branch. How do you reconcile that legal reality with these First Amendment principles that are obviously very real and urgent?
Jameel Jaffer: It is true that, as a general matter, the political branches have broad power to decide who enters the country and to decide what conditions will be placed on those who are in the country. But it has long been recognized that power is limited by, among other things, the First Amendment. As far back as the case I mentioned earlier, Bridges v. Wixon, which was 1945, and then Kleindienst v. Mandel from 1972, where U.S. citizens invited a Belgian Marxist to come speak inside the United States. The Supreme Court ultimately upheld the denial of his visa, but only after recognizing that the U.S. citizens had a presumptive First Amendment right to hear from the Belgian citizen. And because of the First Amendment right, the U.S. government would have to provide a facially legitimate and bonafide reason for their decision to deny the visa.
In that particular case, the government pointed to some trivial violation of restrictions on his visa. But implicit in the holding of Mandel is that, absent a facially legitimate and bona fide reason – so, for example, if the government had said, “We’re denying his visa simply because we don’t want American citizens to hear these viewpoints,” – the denial would have been unconstitutional. So that’s a very long way of saying yes, Congress has plenary power over the admission of aliens to the United States, but even that plenary power is limited by the Constitution, including by the First Amendment.
Celine Rohr: The government has pointed to certain terrorism-related provisions in the Immigration and Naturalization Act and argued that some of the non-citizens that have been targeted for deportation have endorsed or espoused terrorist activity with slogans like “Globalize the intifada,” and things of that nature. So a two-part question. The first part is, assuming your position is that that kind of language does not meet the “endorse or espouse” provision, what is an example of the kind of activity or speech that would meet that provision and therefore warrant or justify deportation? And two, zooming out a bit from the immigration context and the issues of this particular litigation, how do you, as a legal matter, parse speech like “Globalize the intifada,” that is both political in nature but also calls for, or at the very least supports, violence in some way?
Jameel Jaffer: Just to start with the very end, I think there’s a lot of disagreement about what those phrases mean and people use those phrases in very different ways and hear them in very different ways. That’s one lesson of the last 18 months. That’s true of phrases like “Globalize the intifada,” and “From the river to the sea,” and even “Free Palestine.” It is also true of Israeli slogans and symbols. Many people see the Israeli flag as a symbol of an ongoing genocide. And that is not the way that everybody who’s waving the Israeli flag is using it. That’s not what they mean to say when they hold that flag up. But speakers and listeners sometimes interpret speech in very different ways. And that’s not limited to pro-Palestinian speech or pro-Israel speech. It’s just a feature of speech or a limitation of speech. And it was true in earlier eras, too – when people said “By any means necessary,” some people meant that as an endorsement of the principles of equality and a call for racial justice, and other people heard it as a call for violence. So it’s not new.
The First Amendment protection for political speech is very broad. And until you get to the point that speech becomes incitement or a true threat, the First Amendment protects it. That doesn’t mean that all that speech is socially valuable or that people should use slogans that are right up against the line, but, just as a doctrinal matter, the First Amendment protects a lot of speech that many people think of as controversial or offensive or even calls for violence – unless it’s incitement, which means it’s a call to immediate, unlawful activity that is intended and likely to produce immediate unlawful activity, or a true threat, meaning that, a reasonable person would understand it to be a threat directed at them personally.
Another lesson of the last 18 months is that allowing First Amendment protections to turn on listeners’ interpretation of speech would probably result in a quite drastic narrowing of the realm of legitimate political speech because many political slogans are meant one way by speakers and heard differently by listeners.
To go back to your first question about what the government is alleging here, I don’t know of any student whose visa has been revoked on the basis of the “endorse or espouse” provision. The government has sometimes used the language of “endorse or espouse” to describe students it’s targeting, but I don’t know of any case in which it’s actually invoked that provision. The government has sometimes revoked visas without formal reference to specific deportation grounds, removal grounds, or it has pointed to the foreign policy provision which gives the government the power to revoke visas where a person’s presence or activities in the country compromise U.S. foreign policy interests. That’s the provision for example that’s relied on in Mahmoud Khalil’s case and a couple of the other cases.
But the challenge we’ve brought is not a challenge to the foreign policy provision or the “endorse or espouse” provision or any other provision. The challenge we’ve brought is to the policy of arresting, detaining, and deporting foreign students on the basis of their pro-Palestinian advocacy. And we are asking the court to grant relief at that level. Because there are a lot of different ways the government could implement a policy like that. And we want to make sure the relief we get doesn’t result in a kind of whack-a-mole game where the government stops relying on the foreign policy provision and just starts relying on the “endorse or espouse” provision. In our view, the First Amendment forecloses the government from targeting people for deportation based on their political viewpoints, and that is true whatever statutory mechanisms the government is using.
