Trial over free speech on campus, and Trump's student crackdown, begins

A federal judge in Boston on Monday took in the opening salvos of a trial expected to cut to the heart of several of the most divisive issues in US politics, including President Donald Trump, Israel and free speech on college campuses.

The case, filed by a pair of academic associations in March, has become the foremost challenge to the Trump administration's aggressive posture toward foreign students who espoused pro-Palestinian views. It contends that the government's targeting of prominent noncitizen academics who have criticized Israel -- such as Mahmoud Khalil and Mohsen Mahdawi of Columbia University and Rumeysa Ozturk of Tufts University -- has already partially succeeded in chilling political speech across the country, and should be categorically stopped on First Amendment grounds.

All of those academics, who are either legal permanent residents or in the United States on student visas, have successfully fought for and obtained their release even as their immigration cases continue to wend through the courts.

But lawyers for the Knight First Amendment Institute at Columbia University, who are representing the associations, will argue at trial this week that the arrests were part of an official policy that could just as easily be turned on other groups that clash with the Trump administration.

While the Supreme Court has affirmed in at least one major case that foreign nationals living in the United States are generally entitled to First Amendment rights, constitutional law experts have cautioned that there are few obvious legal parallels in American history.

In its filings, the government has argued that pro-Palestinian demonstrations are an expression of support for Hamas, which the US government considers a terrorist organization. It has relied on Cold War-era precedents in which the Supreme Court upheld the government's power to deny entry to people over their past membership in the Communist Party.

Deciding whether the Trump administration overstepped will now fall to Judge William G. Young of U.S. District Court in Massachusetts. A lifelong believer in the power of trials to clear up thorny legal questions, Young has scheduled a nine-day bench trial -- a trial without a jury -- to dig into whether the arrests and planned deportations fall within the president's authority or amount to a grave abuse of power.

In June, Young blocked the Trump administration's efforts to cancel science grants that funded research into diversity-related topics such as health disparities in Black and LGBTQ+ communities. He rejected the cuts as racial discrimination unlike anything he had seen from the government in his 40 years on the federal bench.

In this case, through witnesses and evidence, lawyers from the Knight Institute will work to establish that the State Department and the Department of Homeland Security collaborated to surveil social media and other writings for content that could be used as justification for revoking visas and green cards and enabling deportations.

Within minutes of the government beginning its opening statement Monday, Young interjected to ask what may prove to be the most pivotal question in the case.

"Do you agree that a noncitizen has the same constitutional rights under the First Amendment as a citizen?" he asked Victoria Santora, a lawyer from the Justice Department.

At first Santora appeared to agree, saying after a pause that "all persons" already in the United States are entitled to the same basic protections. She later appeared to walk that concession back, saying the government's position was "more nuanced."

Her opposing counsel seized on the moment.

"The government's initial response was the correct one. They do. They do have First Amendment rights," Ramya Krishnan, a senior staff attorney at the Knight Institute who opened the trial Monday, said during a news conference after court adjourned, referring to noncitizens. "The Supreme Court has been clear about that."

As much as the issues that will arise at trial seem inextricably linked to the fraught politics of the present, both sides acknowledge that they are deeply rooted in American history.

In trial briefs, lawyers from both the Knight Institute and the government have looked to the height of the Cold War for cues, noting vague similarities to the way the Trump administration has sought to remove people based on a finding that their speech threatened the "national interest."

The government has denied, flat out, that any blanket policy targeting pro-Palestinian activists exists.

Santora said Monday that the entire lawsuit was based on misrepresentations of the government's motives, which were focused on national security and aimed at a few individuals over divisive statements they had made.

"It's a fear, it's an idea, it's conjecture," she said.

In its filings, the government has raised several Supreme Court decisions focused on people accused of communist or anarchist sympathies, in which it found First Amendment protections did not apply. Secretary of State Marco Rubio has repeatedly said the government's goal is to revoke the visas of "Hamas supporters in America."

"The court has already rejected a First Amendment challenge to a governmental effort to deport Communists for being Communists -- i.e., an effort to prioritize immigration enforcement to combat a given political viewpoint," the Justice Department wrote in one of its briefs. "There is no constitutional difference to an effort to expel Hamas supporters."

Jameel Jaffer, the executive director of the Knight Institute, said in an interview that the practices employed by the Trump administration evoked the widespread abuse of screening under the McCarran-Walter Act, long before social media was involved.

He likened the current climate to the 1950s and 1960s, when the United States turned away cultural icons such as Gabriel García Márquez, Pablo Neruda and Doris Lessing, among others, over their association with communism.

"Now, instead of a handful of people being denied visas because they wrote books that the government misinterprets as sympathetic to communism," Jaffer said, "we have every consular officer turned into a kind of censor, reviewing everybody's social media posts for any evidence of not just pro-Palestinian sentiment, but hostility to American values -- whatever that means."

Over the course of the trial, the groups suing will call as witnesses a mix of noncitizen students and faculty members and US citizens, including a Columbia University professor who worked alongside Khalil and Mahdawi.

On Monday, the court heard testimony from two professors, both legal permanent residents, who each spoke to the ways they curtailed their scholarship, stopped participating in political organizing or engaged in self-censorship after witnessing the arrests of Khalil and others.

Megan Hyska, a Canadian citizen pursuing a tenured position teaching philosophy at Northwestern University, described weighing whether to water down her syllabus to avoid readings on colonialism, or to abandon her participation in the Democratic Socialists of America.

She recalled coming to the realization that her legal status could be pulled at any point, after seeing Trump pledge on social media that Khalil's detention would be "the first arrest of many to come."

"I felt extremely shocked and distressed for him and his family," she said, referring to Khalil. "But also for myself."

While the lawsuit is national in scope, and was filed before the Supreme Court limited lower courts' ability to issue nationwide injunctions, the outcome could still be sweeping.

Even if Young were to limit his ruling to the groups involved in the lawsuit, both are national faculty-based associations, with tens of thousands of members between them across more than 500 colleges and universities.

Above all, lawyers will work to impress upon the judge this week that any crackdown on speech is a slippery slope, and that the same tactics that unfolded this year could just as soon be applied to deport other groups based on support for other causes.