A new lawsuit filed on Wednesday by a free speech watchdog takes aim at the key legal foundations the Trump administration has relied on to arrest and try to deport foreign students over their criticism of the Israeli government.
The challenge, filed in California, goes further than other lawsuits that have targeted the student arrests. The new suit focuses on a section of immigration law that allows the secretary of state to determine that a noncitizen poses a threat to the country’s foreign policy and can be removed from the country for that reason. It argues that it is unconstitutional to invoke the provisions for speech and other activities protected by the First Amendment.
Lawyers from the free speech group, the Foundation for Individual Rights and Expression, brought the lawsuit on behalf of the student newspaper at Stanford University, the Stanford Daily, arguing that several of its staff members have been forced to self-censor or quit the paper out of fear that the government could retaliate for what it publishes.
The lawsuit says that the newspaper, which is open to all students and has more than 200 members, has weathered resignations and withdrawn stories by noncitizens who were concerned that publishing content about Israel or the conditions in Gaza could leave them vulnerable to deportation.
The climate of fear the lawsuit cites at Stanford follows a spate of arrests earlier this year, when the Trump administration began targeting prominent student activists in March, including Mahmoud Khalil and Rumeysa Ozturk, over their activism in speaking out against the Israeli government and the mounting death toll in Gaza.
“They are going after lawfully present noncitizens for bedrock speech, like authoring an op-ed and going to protest,” said Conor Fitzpatrick, the supervising senior attorney at the foundation. “And unless you have a blue passport with an eagle on it that says United States of America, they think they can throw you out of the country for it.”
In those and other cases, immigration agents arrested the students after Secretary of State Marco Rubio invoked the provision, deeming the students a threat to U.S. foreign policy interests. In each case, Mr. Rubio personally signed off on the decision to revoke a student visa or render a lawful permanent resident deportable after determining that those interests were at stake.
“Secretary of State Marco Rubio and the Trump administration are trying to turn the inalienable human right of free speech into a privilege contingent upon the whims of a federal bureaucrat, triggering deportation proceedings against noncitizens residing lawfully in this country for their protected political speech regarding American and Israeli foreign policy,” the lawsuit says.
The new lawsuit mirrored many elements of a case brought by another group, the American Association of University Professors, which is seeking to block the Trump administration from pursuing what it describes as a policy of “ideological deportations” — using the law to target activists based on their shared criticism of Israel and its conduct in the war.
That case was argued before a federal judge during a two-week trial in Boston in July, and he is expected to decide this month whether to block the deportations on First Amendment grounds. The case raised similar concerns about chilled speech on college campuses, with testimony from faculty at several universities about how dramatically noncitizen academics had withdrawn from public life.
But lawyers in that case explicitly stopped short of arguing that using the foreign policy provision to target student demonstrators was unconstitutional, sidestepping a risky gambit in court over whether Mr. Rubio had abused the authority.
That caution came as William G. Young, the judge in the case, expressed skepticism throughout the trial about whether he could rule against Mr. Rubio or others in the Trump administration given that they were exercising powers given to them by Congress.
“It seems to me we have a new administration who has, you know, absolutely the primary authority over the foreign policy of the United States,” Judge Young said during closing arguments last month.
But other judges have already contemplated the same questions the new lawsuit raises, concluding that using the foreign policy provision in the student activist cases was vague and probably violated the First Amendment.
In the case involving Mr. Khalil, Judge Michael E. Farbiarz of the Federal District Court in New Jersey wrote that using the foreign policy provision to detain him was probably unconstitutional, even though that did not factor into his decisions to order Mr. Khalil’s release in June.
Since the Supreme Court limited federal judges’ ability to issue nationwide injunctions in June, any ruling in the case would likely apply only to the plaintiffs at Stanford. But the lawsuit aims to set a legal precedent that the organization hopes could be used more broadly.
Mr. Fitzpatrick, the foundation lawyer, said there were narrow but conceivable situations in which the use of the foreign policy law would be appropriate, such as if pro-Kremlin Ukrainian politicians who fled the country after Russia’s invasion sought refuge in the United States and continued to work to undermine Kyiv from abroad.
“That has an arguable constitutional basis,” he said. “What does not have an arguable constitutional basis is someone going up to a podium, whether it’s at a city council meeting or a local park, at a protest, voicing an opinion that would be completely protected if you or I said it, and the secretary of state saying, ‘We don’t like the ideas you’re spreading — get out.”
“That’s un-American,” he said.