Boston federal judge says top U.S. officials failed to uphold Constitution in free speech case

A federal judge in Boston moved to protect the free speech rights of international scholars who feared retribution for their views, after the federal government tried to deport students for expressing pro-Palestinian sentiments.

To prevent retribution against the foreign scholars, the order proposed by U.S. District Judge William Young requires the government to provide "clear and convincing evidence" that any change in the academics' immigration status is “appropriate” under law.

The judge on Thursday made numerous references to government officials “not honoring” the First Amendment including President Trump, whom he described as "authoritarian."

The plaintiffs are members of two groups: the American Association of University Professors and the Middle East Studies Association. The associations sued the heads of the U.S. departments of State and Homeland Security, and Immigration and Customs Enforcement last March, alleging that the high-profile arrests, detentions and attempts to deport pro-Palestinian student activists chilled the speech of their non-citizen members who feared for their own livelihoods. ICE detained, among others, Tufts' doctoral student Rümeysa Öztürk and Columbia University graduate Mahmoud Khalil.

ICE agents apprehended Öztürk, a Turkish national, in Somerville last March. Öztürk, who co-authored an opinion piece critical of Israel in the campus paper, was detained for weeks in a Louisiana detention facility. She was released by court order, and a federal judge in Boston later ordered federal authorities to restore her student immigration record so she could continue to work in the U.S.

Over a two-week trial last July, Young heard from witnesses for the plaintiff groups, including academics from Harvard and Brown universities, who said the arrest of international student activists kept them from attending protests, traveling overseas, and writing about Israel and Palestine.

Young later sided with the plaintiffs in a scathing 161-page decision, saying the First Amendment affords the same protection to citizens and non-U.S. citizens alike. His decision also said the government targeted the student activists “in order to strike fear into similarly situated non-citizen pro-Palestinian individuals.”

From the bench Thursday, Young said, “They’re now going to have to jump through these hoops,” referring to federal officials.

“I’m trying to tailor relief so they have an incentive to honor the First Amendment with respect to your clients, individually, that’s why I propose this,” he added, addressing the plaintiffs’ attorneys.

His proposal was narrower than the relief sought by the plaintiffs, who had asked for an order prohibiting U.S. cabinet secretaries Marco Rubio and Kristi Noem from targeting any non-citizen scholars engaged in free speech. Young's order is limited to members of the plaintiff groups alone.

There are about 52,000 members of the two groups across the country, according to the lawsuit.

Young acknowledged his limitations to control actions of the executive branch.

“I’m putting a burden on the government that it didn’t have before,” Young said, “because these cabinet secretaries have failed in their sworn duty to uphold the Constitution. I’m trying for a creative solution.”

Government lawyers argued there should be no remedy at all, citing a split opinion earlier in the day by a federal appeals panel in the Third Circuit. It opened the door to the re-arrest of Khalil, the pro-Palestinian protester who is a legal permanent resident.

Young, who was appointed to the bench decades ago by President Ronald Reagan, previously referred to the case as “perhaps the most important ever to fall within the jurisdiction of this district court.” He reiterated that sentiment during Thursday’s hearing, saying, he "never had a case that approached that level of consequence before this case.”

Ramya Krishnan, one of the attorneys for the plaintiffs, said after the hearing her clients continue to experience threats b  government officials — and that other non-citizens who have criticized Israel’s actions in Gaza have come under the government’s watch.

“Since this court’s rulings, officials from these agencies have continued to threaten to revoke the visas of individuals who engaged in disfavored speech, and we’ve seen them make good on that promise,” she said.

Krishnan referenced a British political commentator who was detained by ICE agents in October during a U.S. speaking tour that included discussion about Gaza. He was eventually released and allowed to return to London.