FIRE Sues Rubio, Trump Administration for Blowing it On Speech

The Trump administration is making a big miscalculation on the First Amendment

First rule of speech controversies: no one appeals to the Constitution to protect popular opinion. Words that need defending are always repugnant, obnoxious, and offensive to someone’s sensibilities. Cops have to put up with “Fuck the Police,” bankers have to abide communists (and vice versa), black Americans coexist with the Klan, and everyone has to live with NAMBLA. Entering a speech debate, expect to wince.

Between a duel of loud headlines about Jeffrey Epstein and Russiagate, the Foundation for Individual Rights and Expression (FIRE) this morning filed Stanford Daily Publishing Corporation, Jane Doe, and John Doe v. Marco Rubio and Kristi Noem, challenging the Trump administration’s immigration policies on speech grounds. The suit will test the patience of anyone frustrated by excesses in recent campus protests, some of which themselves crossed First Amendment lines. But FIRE, which has been such an important actor in fighting digital censorship, is doing the right thing. In the name of trying to protect the country, the Trump administration is advertising to the world its misunderstanding of a core American idea. It’s a mess:

At issue is the Trump administration’s much-criticized deportations policy, specifically efforts by Marco Rubio and the State Department to revoke visas of students and other foreigners deemed threats. Trump officials in February announced an intention to “root out” those guilty of “anti-Semitic harassment in schools and on college campuses,” and Rubio followed up in March with an announcement that he’d personally revoked over 300 visas. “We do it every day,” Rubio said. “Every time I find one of these lunatics, I take away their visas.” Using a seemingly Charlie Murphy-inspired metaphor many Trump supporters found convincing, Rubio added:

We gave you a visa to come and study and get a degree, not to be a social activist that comes in and tears up our university campuses…

If you invite me into your home because I say, “Oh, I want to go to your house for dinner,” and I come into your house and I start putting mud on your couch and spray-painting your kitchen, I bet you you’re going to kick me out.

The signature cases involved activist Palestinian activist Mahmoud Khalil, whose presence Rubio said would create a “hostile environment for Jewish students in the United States,” and Tufts student Rümeysa Öztürk, who aroused displeasure via an editorial she wrote for the Tufts Daily demanding that the school “acknowledge the Palestinian genocide.” Both cases aroused massive media furor, with video of agents grabbing Öztürk off the streets going viral, triggering instant comparisons to a smorgasbord of secret police regimes. Massachusetts congressman Seth Moulton told the Boston Globe, “It’s like the Gestapo. That’s what the Gestapo was established to do.” Joe Rogan, bashed as a Nazi-booster by MSNBC in March, came back into the station’s good graces when he ripped the deportations as “fucking crazy.” Amid the frenzy, few commentators noted the controversial policy’s unusual legal genesis.

Rubio and the Trump administration were attempting to deport “these lunatics” by drawing upon two provisions of the Immigration and Nationality Act. The first allows the federal government to deport an alien if the Secretary of State “personally determines” his or her admission “would compromise a compelling United States foreign policy interest.” The second allows the Secretary of State to, “at any time, in his discretion,” revoke a “visa or other documentation.”* Herein lies the rub: the “Gestapo” tactics appear enshrined as permissible under current immigration law.

At the same time, there exists a 1945 Supreme Court ruling, Bridges v. Wixon, which grants legal aliens First Amendment rights. Long before Trump, in other words, there was a gray area in the law, one not challenged until FIRE decided to take on the case on behalf of a group of plaintiffs. Two are unnamed foreign students who’ve participated in pro-Palestinian protests or published pro-Palestinian opinions, and the third is the Stanford Daily, some of whose noncitizen writers “have self-censored by declining to cover pro-Palestinian student protests.” Immigration law says they can be thrown out at any time, for any reason, but can speech rights exist at all if they vary according to visa status?

“The way we see it,” says Conor Fitzpatrick, FIRE’s lead counsel in the case, “is that if non-citizens have First Amendment rights in this country — which we know under Bridges v. Wixon, they do — a right has to mean something.”

Foreigners and citizens are clearly treated differently when it comes to laws and regulations. The former can’t vote, the latter mostly can’t hide from the IRS. FIRE’s argument is that rights generally and speech rights in particular can’t be variable.

“Everyone agrees, for example, that a non-citizen can’t be thrown in jail for voicing an opinion,” says Fitzpatrick. “I think there’s pretty universal agreement that the First Amendment at least provides the same level of protection against criminal prosecution for protected speech. What this suit is seeking is some long-awaited clarity that a federal immigration statute does not trump the First Amendment.”

Politically, the story is complicated. The U.S. government for decades has mass-deported immigrants who bust their asses for pennies in farms and slaughterhouses and would do anything to be Americans, and no one makes celebrities of them. Meanwhile, Khalil especially has become a green-room star, fawned over by Congressional delegations and media panels as he denounces everyone from the school that accepted him to the agents who detained him: “I want to make sure that everyone who contributed to my arrest will be held accountable,” he said, adding that Trump and company chose “the wrong person” to challenge. No matter how you view his cause, he comes across as exactly the exhausting guest Rubio described.

That’s where the wince test comes in. The First Amendment doesn’t delineate who does and doesn’t qualify for protection. It just lays out that what people say or think isn’t this or any government’s business.

“Madison and Jefferson wrote that opinions are not within the purview of the government,” says Fitzpatrick. “The whole idea behind the First Amendment is it deprives the government of authority to wield its power based on the opinions of the speaker.”

That’s what makes Rubio’s attitude toward this issue ironic. He questions why “any country in the world” would “welcome people into their country that are going to go to your universities as visitors, and say ‘I’m going to your universities to start a riot.’”

America isn’t “any country in the world,” though. We’re the one place on earth where you get to say the craziest conceivable shit and government doesn’t get to say boo. If someone like Khalil drifts into truly prohibited activity, like incitment or rioting, charge them. But a precedent that government can punish for criticism of its policies or even just for being mouthy guests would open doors to nightmare eventualities, one being a slide from a unique society to “any other country in the world.” Shrugging off crazy things people say is the essence of the American experience. The alternative is putting the state in the computerized opinion-measuring business.

In that vein, the reported State Department plan to use AI to scour social media for “any indications of hostility toward the citizens, culture, government, institutions or founding principles of the United States” is just an inverse of Biden-era plans to have the FBI and DHS work with Internet platforms to “to share and receive domestic violent extremism threat-related information.” These same types of calculations led to deamplification or removal of vaccine critics, alleged conspirators with Russia, and other blue-party bugbears, few of whom were genuine threats. Democrats spent the last eight years fetishizing these forms of digital guilt-by-association, and looked like demented nanny-staters doing it. Why would the Trump administration go there Tighten borders and immigration policies all you like, but speech has to stay off the table.

*In a bizarre twist, the first provision was once ruled unconstitional by Judge Maryanne Trump Barry, Donald Trump’s sister, in a non-speech-related case, Massieu v. Reno, only to be overturned by the Third Circuit Court of Appeals.