Deportation for “Pro-Palestine or Anti-Israel Political Speech” May Violate the First Amendment, Court Holds
[1.] From today’s decision by Judge William Young (D. Mass.) in American Ass’n of Univ. Profs. v. Rubio:
This case raises the issue of whether certain Public Officials can enforce a policy of arresting, detaining and deporting non-citizens who are otherwise here legally based solely upon their pro-Palestine or anti-Israel political speech….
The court allowed plaintiffs’ First Amendment challenges to go forward:
Although this case raises novel First Amendment issues and the precise scope of the ideological-deportation policy challenged by the Plaintiffs is not yet clear, at the motion to dismiss stage the Plaintiffs’ First Amendment claims survive.
It is well established that noncitizens have at least some First Amendment rights, see Bridges v. Wixon (1945), and political speech is “at the core of what the First Amendment is designed to protect.” Although case law defining the scope of noncitizens’ First Amendment rights is notably sparse, the Plaintiffs have at least plausibly alleged that noncitizens, including lawful permanent residents, are being targeted specifically for exercising their right to political speech. See American-Arab Anti-Discrim. Comm. v. Reno (9th Cir. 1995), rev’d on other grounds (“The Supreme Court … has accorded to aliens living in the United States those protections of the Bill of Rights that are not, by the text of the Constitution, restricted to citizens.”); OPAWL – Building AAPI Feminist Leadership v. Yost (6th Cir. 2024) (“Lawful permanent residents have First Amendment rights…. [T]hey have developed sufficient connections with the United States to be considered part of the national community: They live and work here lawfully, and they can serve in the military.”); United States v. Verdugo-Urquidez (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”); but see Price v. United States Immigr. & Naturalization Serv. (9th Cir. 1991). The Plaintiffs have also clarified that they do not mean to bring a selective prosecution challenge, but rather contend “that Defendants are deporting people on the basis of their viewpoints alone.”
Contrary to what the Public Officials contend, this Court cannot agree that this alleged conduct would be constitutional. See Abourezk v. Reagan (D.D.C. 1984) (“[Public Officials] may not, consistent with the First Amendment, deny [noncitizens] entry solely on account of the content of their speech.”), vacated on other grounds (D.C. Cir. 1986). The Public Officials’ reliance on case law from the height of the second Red Scare era, such as Harisiades v. Shaughnessy (1952), is misplaced, and this Court assumes instead that noncitizens lawfully present in the United States have at least the core rights protected by the First Amendment, chief among them the right to speak on political subjects at least w
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