This morning Judge Young heard closing arguments in AAUP v. Rubio, a First Amendment challenge to what Plaintiffs have referred to as the federal government’s “ideological deportation policy.” I’ll first summarize the highlights (and lowlights) of the parties’ arguments and then offer some thoughts on how the case might come out.
Judge Young was an active questioner during closing arguments. Rather than simply hear from the parties, he asked several questions about their claims and arguments.
Plaintiffs’ Closing Argument
Plaintiffs’ argument covered (1) the existence of the “ideological deportation policy” (IDP) and (2) why the IDP violates the First Amendment.
Judge Young started with a question. He observed that Plaintiffs have assumed the IDP is “self-evident,” but wanted to know “what is it and where is the evidence”? Plaintiffs responded that the IDP consisted of revoking visas and green cards based on political expression, with the goal of stifling dissent and chilling expression. They argued that the government “speaks about the policy in public and demands credit” for it. Government witnesses talked about a “new process,” a “new program,” and new “lines of effort. Witnesses used “new” over and over; they just didn’t call it a “policy.” New process were set up to manage an influx of referrals that needed to be dealt with quickly.
Judge Young asked why the government’s action weren’t more properly viewed as the use of existing processes and authorities for implementing new enforcement priorities. Plaintiffs responded that the creation and manner of execution proves what this was intended to be - a quickly ramped-up process to deal with revocation of international student visas where they participated in pro-Palestine or anti-Israel expression.
Plaintiffs also argued that the government’s “reports of analysis” relied almost entirely of unvetted allegations provided by Canary Mission, an “extremist pro-Israel group” that identifies people with views they disagree with. They asserted that this reliance speaks to the point of the policy: officials were looking for information to rely on to take enforcement action against those with thee views Canary Mission identified as disfavored.
Judge Young interjected that in his experience law enforcement takes leads from any source, so why not the same here?
Plaintiffs responded that those leads relate to alleged criminal activity or lawbreaking, while these were only about people who have criticized Israel or the United States.
Further, they argued, in this case there was no follow-up investigation to determine the accuracy of any of the leads. Instead, the letters concerning student activists relied on “enormous inferential leaps.”
Plaintiffs characterized the IDP process as shoddy and designed to pass along analyses that would lead to vias revocations. They pointed to the “conflation of pro-Palestine speech with anti-Semitism,” citing John Armstrong’s testimony about his view that anti-Israel speech was anti-Semitic and saying otherwise was a “dodge.”
Judge Young agreed there is evidence to support what Plaintiffs said. However, he asked, “what’s the best evidence of the government’s intent” to arrest and deport non-citizens based on protected political expression?
Plaintiffs pointed to the “unprecedented arrests of targeted non-citizens,” officials’ testimony that this was not ordinary or usual, and government officials’ statements about what they’ve done and why.
They argued all this was intended or designed to “terrorize” others who shared the same views. Plaintiffs noted that high-level officials posted on social media about these arrests, to make an example of the students and scholars.
Plaintiffs also discussed the harms or injuries suffered by the associations and their members. They said the fact of advocacy was the basis for enforcement, and that this was “terrifying for the plaintiffs. Three members testified about about how the IDP had chilled their expression, including causing them to refrain from publishing op-eds and scholarship or attending public protests.
Regarding the First Amendment, Plaintiffs argued (1) non-citizens lawfully present in U.S. have the same rights as citizens; (2) the IDP is an invalid viewpoint-discriminatory policy; and (3) the court need not decide whether any of the immigration statutes the government relied on, including those that rely on foreign policy justifications for revoking visas, are themselves constitutional.
Plaintiffs relied on Supreme Court and appeals court decisions recognizing that lawfully present aliens have the same First Amendment rights as citizens. They cited statements from Justices in several cases to this effect and court of appeals decisions recognizing such rights, including in the immigration context. They argued that “no court of appeals has gone in the opposite direction.” Finally, Plaintiffs dismissed the government’s reliance on Supreme Court decisions from the 1950s, which they claim have been “superseded by” modern First Amendment developments.
To demonstrate viewpoint discrimination, Plaintiffs pointed to testimony about revocations based on “anti-Semitism,” which they argued conflated legitimate anti-war or pro-Palestine speech with anti-Semitism and criticism of Israel and US government policies with anti-Semitism. They argued the IDP suppresses speech at the core of the First Amendment’s protections. The First Amendment, they argued, protects offensive speech, even bigoted speech, but this policy sweeps far more broadly even than that.
To Judge Young’s concern about holding federal laws unconstitutional, Plaintiffs argued that the court need not reach this issue. It is the policy Plaintiffs challenge, not the statutes themselves. In essence, Plaintiffs argued that the IDP violates the First Amendment and a decision to that effect would provide a complete basis for relief.
Judge Young focused on what he characterized as the requirement that Plaintiffs show the government intended to chill and suppress their expression (As discussed below, Plaintiffs dispute they must prove intent). He again asked why the testimony did not simply show officials grappling with new priorities during a new Administration, using lawful authorities and longstanding processes.
Plaintiffs responded that for standing purposes, they had to show the policy caused them to self-censor or caused other expressive harms.
However, they argued that the IDP is unconstitutional by its terms and on its face. Once they showed the policy discriminated based on viewpoint, the government’s “benign motives” do not matter.
In essence, Plaintiffs argued that even if the legal authorities relied on are valid, when used in a viewpoint-based enforcement policy this violates the First Amendment. The government cannot enforce such a policy unless it is necessary to do so to further compelling interests, which Plaintiffs argue the government cannot demonstrate.
Defendants’ Closing Argument
At Judge Young’s urging, Defendants began with the question regarding the First Amendment rights of legally resident non-citizens.
The Defendants said that legally resident aliens do not have First Amendment rights equivalent to those enjoyed by U.S. citizens. Their position is apparently that the scope of lawfully resident aliens’ rights is “context-dependent” and requires some “flexibility” to determine.
In other words, Defendants did not deny that in some circumstances non-citizens lawfully resident in the U.S. have full First Amendment rights (they did not identify those contexts). However, they claimed that in certain areas Congress and courts have declined to recognize equivalent rights.
The Defendants cited cases and laws involving monetary contributions in U.S. elections, national security, and the immigration context at issue in this case.
Defendants agreed that Judge Young need not reach the constitutionality of any statute to decide whether the IDP violates the First Amendment. Defendants asserted that they have broad authority to revoke visas, including for speech that “relates to terrorism.”
At this point Defendants made the mistake of raising ICE’s lack of a masking policy to argue that there was no “policy” involved in the enforcement actions in this case. I say it was a mistake first because the lawyer was supposed to focus on the First Amendment issues and also because it provided Judge Young an opportunity to address the matter directly.
Judge Young said he “found it strange” that ICE allows agents to mask their identities and indicated that the “common sense inference” is that this is done to “spread fear.”
He seemed especially skeptical of the government’s stated “doxing concerns. Judge Young observed that the U.S. Marshall’s service does not use masks and apparently never has - even though it enforced the odious Fugitive Slave Law. [Defendants might have responded that this was long before digital outlets, but properly decided at that point not to belabor the masking issue.]
The remainder of Defendants’ closing addressed (1) the existence of the IDP, and (2) the evidence concerning whether Plaintiffs suffered any harm or injury as a result of any IDP.
[The lawyer making these arguments started with a long-winded reference to “tilting at windmills” and Plaintiffs’ challenge to “a monster that doesn’t exist.” He would have saved some time skipping the strained literary metaphor. This is a bench trial, and while Judge Young tolerated this part of the closing it seemed more dramatic than appropriate.]
In any event, Defendants argued that there was no “grand government conspiracy” to target students based on their political expression but rather an “an extensive process pursuant to statutory authority.” To which Judge Young replied: yes, “but in ways never before seen.” Judge Young offered that perhaps “policy” is a misnomer and he should be thinking instead about “concerted action.” He offered his own literary reference, from Henry II: “Who will rid me of this troublesome priest”?
Young observed that President Trump has made various statements about campus protests and that the evidence showed Stephen Miller and others were involved in adopting a course of action. He does not view the lower-level officials as “lawless,” but as using laws “in new and somewhat different ways.”
Defendants asserted that the evidence showed the visa revocations were based not on speech alone, but on “speech and conduct.” They pointed to John Armstrong’s marginalia on an action memo, which said “actions, not words” [Armstrong also testified that Pro-Palestine speech was grounds for revocation and support for Palestine was the same as support for Hamas.]
Defendants also argued that the evidence contradicted the claim that there was an IDP. Defendants pointed to a lack of evidence of large-scale arrests and the fact that surveillance of aliens’ social media accounts occurred prior to the current Administration. They asserted that Executive Orders have no legal effect of their own. Relying on the numbers, Defendants argued that out of 5,000 leads from the Canary Mission website, only eighteen students or scholars were ultimately arrested and that none of AAUP’s 50,000 members was arrested.
Defendants also asserted that the evidence did not support the claim that Plaintiffs were harmed by an IDP, even if one existed. They plan to argue that Plaintiffs do not have legal “standing” to bring this suit. Judge Young decided that they had adequately alleged harm, but now the claim will be tested based on the evidence. Judge Young seemed skeptical, noting that Plaintiffs had presented testimony by members on this issue.
Judge Young made some potentially telling parting comments about President Trump’s pattern of using his own speech rights “brilliantly” but then failing to recognize or respect others’ free speech rights. There are allegations in other cases that the President’s communications have been translated into actions by agencies and officials. Judge Young said the argument here seems to fit a “concerning pattern” of “selective prosecution based on protected speech.”
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My general impression is that this is a genuinely close case, both as to whether Plaintiffs have shown there was (or is) an “ideological deportation policy” and whether, if so, legally resident aliens can challenge it under the First Amendment.
The trial shows the significant difference between reporting and public discourse on the Administration’s targeting of international students and the proof required in a court proceeding. President Trump, Secretary of State Rubio, Stephen Miller, and others have made no secret of their intentions with regard to international students engaged in anti-Israel, pro-Palestine, or anti-U.S. advocacy. It seems no coincidence that those arrested and detained were engaged in campus protests or pro-Palestine advocacy. At the trial, however, the focus was not on these top-level policymakers, none of whom testified (because of both privileges and convenience), but on lower-level officials who implemented enforcement actions.
As Plaintiffs argued, there is ample evidence of a “new” set of enforcement priorities and a “new” process for obtaining and vetting “leads,” and evidence that HSI and State Department employees understood that student visas were to be the focus of these unique enforcement activities.
On the other hand, Defendants presented evidence that the enforcement actions followed common procedures and invoked longstanding legal authorities. As Judge Young observed, presidential administrations routinely change immigration enforcement priorities, which may be all that happened in this case.
Perhaps, as Judge Young suggested, the term “policy” has been a distraction. “Concerted action” by government may suffice. But as the judge also indicated, he believes plaintiffs must show an intent on the part of government to target political expression. (Plaintiffs counter that if he concludes there is a viewpoint discriminatory IDP, no inquiry regarding intent is necessary).
Having seen the trial in its entirety, my sense is that Plaintiffs have offered sufficient evidence of concerted enforcement action targeting student activists and scholars based on their political expression. Of course, Judge Young could view the evidence differently, in which case the Plaintiffs will lose the case without any consideration of their First Amendment claims.
The First Amendment question is also very close. Judge Young has already indicated he thinks lawfully resident aliens “probably” have the same First Amendment rights as citizens. The hedge is necessary because the Supreme Court has not definitively settled the scope of lawfully resident aliens’ First Amendment rights.
Lower courts, including several in the habeas proceedings filed by detained international students, have generally concluded that the rights are the same as those enjoyed by citizens. Thus, there is ample authority for the judge to rule in Plaintiffs’ favor. The government’s “best” precedents are from the 1950s, a period in which even U.S. citizens could be jailed for pro-Communist expression.
This is an issue I believe the Supreme Court will likely have to decide, perhaps during the second Trump Administration. One positive thing for Plaintiffs’ prospects is that both parties seem to agree Judge Young need not decide whether federal immigration laws relating to visa revocation are constitutional. That question may have given Judge Young significant pause, not least because it is a momentous thing to declare an act of Congress (particularly one that implicates national security and foreign policy) invalid.
Ultimately, the outcome in this case will depend in part on how Judge Young frames or perceives the case. He is clearly struggling to decide whether the actions in this case represent a unique but lawful change in immigration enforcement policies or action targeting the political expression of international students who communicated disfavored views on Israel and Palestine. However, based on his comments today, Judge Young is aware of the current Administration’s pattern of targeting and intimidating speakers. I think whether he sees this as another example of that pattern will go a long way to determining how he views the factual record and legal claims.