Former U.S. President Donald Trump has often identified the press and higher academia as opposition. This places student press in a particularly vulnerable position, demonstrated by the arrest of Rümeysa Öztürk for a co-authored opinion piece in a Tufts University campus publication, condemning Israel’s activities in Gaza. However, a student-run newspaper, the Stanford Daily, is pushing back with a First Amendment complaint against Secretary of State Marco Rubio, and Secretary of Homeland Security Kristi Noem. This legal action follows their actions in immigration cases and raises questions about the freedom to critique the government without fear of reprisal.
Conor Fitzpatrick, a lawyer with the Foundation for Individual Rights and Expression (FIRE), speaking on behalf of the plaintiffs, emphasized the key issue at hand. He maintained that no one, citizens or visitors alike, should be fearful of retaliation for expressing criticism of the government. This viewpoint comes in the wake of the detention of Mahmoud Khalil in connection to his involvement in pro-Palestinian demonstrations at Columbia University in March.
Student reporters and editors across the U.S. reportedly felt a shift following Khalil’s arrest. Mike Hiestand, a senior legal counsel at the nonprofit Student Press Law Center who has aided student reporters with censorship and First Amendment difficulties for 30 years, has noticed an upswing in calls concerning immigration consequences tied to campus coverage for journalists and their cited sources.
Following the detention of Öztürk, Hiestand noted that calls to the legal hotline significantly increased. Editors, journalists, and even political illustrators feared that their creative or journalistic expressions surrounding Israel, Palestine, and student demonstrations might place them in the target zone. That in mind, in April, the Student Press Law Center circulated an unprecedented notice jointly with other student journalism bodies encouraging campus publications to consider revising or retracting controversial content that might attract the attention of immigration authorities.
Shortly after, Stanford Daily’s editors published a letter discussing the climate of fear amongst its staff on campus. Their letter explained that both students and faculty have become increasingly cautious when dealing with the Daily and sharing on-record comments. Some reporters are now preferring to disassociate from stories that might attract negative attention. Published opinion piece authors are now apprehensive about their potential exposure to retroactive risk.
Post the letter publication, FIRE proposed to Stanford Daily’s editors to litigate against the Trump administration. The Stanford Daily is familiar with legal battles over press freedom. In 1978, there was a case pertaining to a search warrant for its newsroom that reached the Supreme Court. The Supreme Court upheld the validity of the warrant, ruling with a majority of 5-3 that it didn’t infringe on the First Amendment.
Stanford Daily’s recent lawsuit, filed also on behalf of two individual plaintiffs represented under the pseudonyms Jane Doe and John Doe, is challenging two vague and expansive legal stipulations that have been Rubio’s means to counter student activists and on-campus critics of the Israel-Palestine situation in Gaza. The first rule, added to US immigration code in 1990, empowers the Secretary of State to deem non-citizens deportable if they are believed to jeopardize US foreign policy interests. The following rule extends even wider discretionary powers, enabling the Secretary to repeal visas ‘at any time’.
These clauses have been infrequently utilized for deportation, particularly in contrast to the large numbers of undocumented immigrants apprehended and detained by Immigration and Customs Enforcement (ICE) since Trump’s decision to recapture the White House. As per a legal brief filed in Khalil’s prosecution, immigration academics suggest that citing the foreign policy clause as the sole factor for deportation is virtually unheard of. In light of available government data, these scholars could only identify 15 cases that invoked this clause and four in the past 25 years – the most recent in 2018, during Trump’s initial term.
In Khalil’s case, the administration acknowledged only two others that Rubio claimed have violated the ‘foreign policy’ provision – Mohsen Mahdawi, a Palestinian student at Columbia University, and Badar Khan Suri, a scholar at Georgetown University. Interestingly, they omitted any mention of Yunseo Chung, a Columbia undergraduate facing the same deportation threat under Rubio’s supervision. Öztürk’s detention was authorized by the State Department under the second and broader provision.
It remains unclear how frequently Rubio and his team exercised his ‘discretion’ to void visas on alleged allegations of anti-Semitic sentiment. Rubio once said he had dismissed up to 300 visas without specifying under what authority. Fitzpatrick, FIRE’s lawyer, emphasizes the intent to intimidate more than the volume of deportations, noting no one desires to be ‘the next Mahmoud Khalil or Rümeysa Öztürk.’
In recent times, various courts have expressed skepticism about the application of these two clauses to target non-citizens for their speech. A district court judge in New Jersey, handling Khalil’s case currently under federal appellate court review, suggested in June that the ‘foreign policy’ provision is ‘very likely an unconstitutional statute.’ The legality of such application in this context will be pivotal in the students’ fight for free speech against the Trump administration.
Similarly, a Vermont court in May ordered Öztürk’s release to minimize the chilling impact that her arguably unconstitutional detention might have on non-citizens in the States. The government is challenging this order, and parallel verdicts that released Mahdawi and Suri from detention, and blocked the Trump administration from detaining Chung.
The Stanford Daily is currently pursuing a direct attack against these two statutes as employed by the Trump administration. They contend these laws are unconstitutional under the First Amendment when used to retaliate against protected speech. Their complaint, filed on August 6, argues against allegations of the Secretary of State and the President having authoritative leverage to deport any legally present non-citizen for allegedly anti-American or anti-Israel speech.
Julia Rose Kraut, a legal historian, contradicts the use of the foreign policy clause as a suppressive tool against freedom of speech and association. Meanwhile the FIRE representative Conor Fitzpatrick asserts that the authority of political branches on immigration matters does not overshadow Bill of Rights. This epic legal battle will continue, with a hearing scheduled for October 1. Shirin Sinnar, a Stanford law professor, applauds the student newspaper’s stand for free speech, expressing hope that this case inspires others to act…
The post Student Newspaper Strikes Back: A Lawsuit for Free Speech appeared first on Real News Now.
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