I virtually attended, and discussed on this substack, the trial proceedings in AAUP v. Rubio. This is a First Amendment challenge to the Trump Administration’s policy of arresting, detaining, and deporting lawfully resident international students and scholars for their political beliefs.
Today Judge Young issued his post-trial Findings of Fact and Rulings of Law. The document weighs in at a hefty 161 pages. I will have more to say about specific issues covered by the decision but wanted to highlight its central holding.
Here are the opening paragraphs:
On January 20, 2025, the first day of President Donald Trump’s second term in office, he promulgated 26 Executive Orders. Executive Order 14149, entitled “Restoring Freedom of Speech and Ending Federal Censorship”, ostensibly issued to reverse conduct of his predecessor, barred federal officials from “any conduct that would unconstitutionally abridge the free speech of any American citizen.” Id. at § 2(b). President Trump here makes clear that, in his view, the First Amendment’s protection of freedom of speech applies to American citizens alone, and to an unconstitutionally narrow view of citizenship at that.
This case -– perhaps the most important ever to fall within the jurisdiction of this district court –- squarely presents the issue whether non-citizens lawfully present here in United States actually have the same free speech rights as the rest of us. The Court answers this Constitutional question unequivocally “yes, they do.” “No law” means “no law.” The First Amendment does not draw President Trump’s invidious distinction and it is not to be found in our history or jurisprudence. No one’s freedom of speech is unlimited, of course, but these limits are the same for both citizens and non-citizens alike.
With this constitution ruling firmly undergirding its approach, the Court here held a full hearing and a nine-day bench trial on the issue of whether the rights of these plaintiffs to constitutional freedom of speech have been unconstitutionally chilled by the deliberate conduct of any or all of these Public Official defendants. The Court heard 15 witnesses and admitted 250 exhibits consisting of documents, photographs, and video clips.
Having carefully considered the entirety of the record, this Court finds by clear and convincing evidence3 that the Secretary of Homeland Security Kristi Noem and the Secretary of State Marco Rubio, together with the subordinate officials and agents of each of them, deliberately and with purposeful aforethought, did so concert their actions and those of their two departments intentionally to chill the rights to freedom of speech and peacefully to assemble of the non-citizen plaintiff members of the plaintiff associations.
Judge Young agreed with the plaintiffs that the Trump Administration “target[ed] noncitizen pro-Palestinians for deportation primarily on account of their First Amendment protected political speech.” He also concluded that the administration’s actions were undertaken “to strike fear” into other students with similar, pro-Palestinian views and had the effect of “pro-actively (and effectively) curbing lawful pro-Palestinian speech.”
This rebuke is consistent with several district court decisions in which judges released targeted international students on bail based, in part, on their finding that the administration had retaliated against them based on their viewpoints.
Judge Young’s decision will surely not be the last word on the matter. It may ultimately fall to the Supreme Court to decide the central First Amendment issue in the case, which is whether legally resident aliens have the same First Amendment rights as citizens. Judge Young characterized that issue as “complex,” but added his voice to those who say that the political expression of non-citizens is protected by the First Amendment.