Cristian Farias:
I’m sure you’ve heard the great news, Mahmoud Khalil is finally free. As we said on our very first episode, the students, Rumeysa Ozturk, Mohsen Mahdawi, Yunseo Chung and others, they are winning.
Khalil’s freedom took the longest, 104 days. Without a doubt, he has become the face of a First Amendment movement during these early days of Trump’s second term. He is using his freedom to do exactly what the government went after him for, to speak out for Palestinian lives and an end to the war in Gaza.
You’re listening to the Bully’s Pulpit, Trump versus The First Amendment. Today’s show is a special one, because we’re going to be zeroing in on what’s at the heart of Mahmoud Khalil’s successive court victories and ultimately his freedom.
The freedom of all to speak out without fear of retaliation. For non-citizens who are here in the US, no matter their immigration status.
This very obviously includes the fear they’ll be abducted off the street and taken to an immigration prison, to be processed for deportation.
This week we’ll talk about a big case defending this principle, a lawsuit challenging the administration’s policy of arresting, detaining and marking for deportation, non-citizen students and faculty who engage in pro-Palestinian speech.
If the government can violate First Amendment rights protecting that speech, it can violate the protections for any kind of speech.
Alex Abdo:
There’s really just no question that what Secretary Rubio is trying to do, is tamp down on constitutionally protected speech he doesn’t like.
Cristian Farias:
That was Alex Abdo of the Knight Institute, and I can’t wait to wonk out on all of this with him, but also to learn more about the real world harms these unlawful actions have.
Before we do, let’s get to the news, and you guessed it, Mahmoud Khalil kicks us off.
Since his release, Khalil has been in a big press storm, speaking with The New York Times, NPR and ABC News.
At a rally on the steps of the Cathedral of St. John the Divine, he gave a huge shout out to other students at Columbia University and elsewhere, who are standing alongside him and calling for an end to the war in Gaza.
Mahmoud Khalil:
I would like to salute the courage of all students, at Columbia and across the nation.
These students who continue to protest. I want to honor, especially my friends at Columbia University.
Especially those who are currently battling expulsion and suspension for their consciousness stand.
Cristian Farias:
A quick update on the LA protests. ICE continues to terrorize immigrant workers and day laborers, a topic of last week’s show.
I encourage you to go back and listen to the episode, it was great. Communities continue to resist and denounce these tactics.
To this end, a new bill introduced in the State House in California, would prohibit ICE agents from wearing masks during their enforcement operations.
It would also require them to identify themselves. The California bill is called, The No Secret Police Act.
In other news, Media Matters for America, a liberal watchdog that keeps a close eye on right-wing extremism in the news and elsewhere, has sued the Federal Trade Commission in Washington, over what it says is a retaliatory investigation of its work, watching X, formerly known as Twitter.
This is a big First Amendment problem we’ve been seeing during Trump 2.0, where the administration is launching investigations of news organizations and other entities.
Media Matters has been in a legal battle with X in Federal Court for quite some time, all because X was unhappy that Media Matters reported a couple of years ago, that ads on the platform were appearing next to anti-Semitic content.
Now, the FTC wants to look into Media Matters as well, but Media Matters is fighting back.
To quote the lawsuit, the agency is using its quote, sweeping governmental powers, to attempt to silence and harass an organization for daring to speak the truth.
In a surprising about face, CBS blasted Trump’s lawsuit against the broadcaster, over a Kamala Harris interview, as meritless. The network called the interview and the way 60 Minutes handled it, as quote, fully protected editorial speech.
All of this suggests, that maybe CBS wants to do the right thing. The back story is long and complicated, so check out episode five, with FCC Commissioner Anna Gomez, if you’d like to learn more.
Lastly, Trump’s war on unions. As we’ve seen since the start of the Trump administration, the federal government is decimating the federal workforce.
There’s no better way to do that, than by weakening their labor protections under federal law.
Of course, organized labor, even that of federal workers, is protected by the First Amendment.
On this point, a federal judge in San Francisco, ruled that Trump cannot end union bargaining rights for broad segments of the federal workforce.
In his ruling, the judge pointed to the administration’s open season on unions, noting that he has, quote, expressed a clear point of view that is hostile to federal labor unions and their First Amendment activities. We’ll keep tabs on how this court battle plays out on appeal.
As we just heard in the news roundup, one student’s freedom, and his regained freedom to speak publicly about what he believes, was the biggest thing happening in First Amendment land.
Now that Mahmoud Khalil is finally free, it’s as good a time as any to get deep in the weeds about one of the defining First Amendment issues of the second Trump presidency, the targeting of students and faculty who advocate for an end to the war in Gaza.
Those who call what’s happening there a genocide. People who deeply believe in Palestinian lives and freedom, and are now seeing themselves abducted by ICE, taken to faraway detention centers, and expecting to be deported.
They haven’t been accused of a crime. Their only offense is what they believe, what they stand for. Not getting locked up for your views, is precisely why the First Amendment exists.
To talk about this, in an important case that gets to the heart of this issue, I’d love to welcome Alex Abdo.
He’s the Litigation Director at the Knight First Amendment Institute at Columbia University. Alex, thank you for coming on the show.
Alex Abdo:
Thanks for having me, Cristian.
Cristian Farias:
Now, this case that you’re about to go to trial, I want you to tell me about the plaintiffs in the case, who are they and why they brought this lawsuit?
Alex Abdo:
We represent the American Association of University Professors. We represent several of its chapters at the universities of Rutgers, NYU and Harvard, and we also represent the Middle East Studies Association.
These are all faculty membership groups, and they exist essentially to defend academic freedom, to make sure that scholars are free to engage in the research and scholarship and debate and exchange of ideas that is central to academic freedom and the pursuit of knowledge in this country.
Cristian Farias:
One thing that struck me as I was reading some of the filings in this case as a journalist, I was wondering, the universities, the institutions themselves, should be bringing these claims on behalf of their students and scholars, but that’s not what’s happening here. I want you to reflect on that a little bit.
Alex Abdo:
Yeah, it’s a real shame. You would think that in the midst of maybe the most significant attacks we’ve ever seen in this country on higher education, you would think that the institutions of higher education would be leading the charge in response.
We’ve now finally seen Harvard fight back against the funding cuts that have presented an existential threat to the university, but we haven’t seen a coordinated response.
I think that would be essential, because the administration’s strategy is one of divide and conquer, and we’ve seen this, not just in this industry, but in others that the administration has attacked.
It goes after one law firm, one university, one entity, and it steadily increases the pressure to an unbearable point, until that university or law firm folds, and then it moves on to the next one.
I think, the best response to that divide and conquer strategy is coordination. It would be great if universities banded together, presented a unified front and pushed back. Unfortunately, that’s not what we’ve seen.
Cristian Farias:
Collective action in other words, and collective action is precisely what I see when I read the filings in this case, AUP v Rubio, as this important First Amendment challenge is known.
Now, what this case seeks, is to invalidate the government’s policy of arresting imprisoning and deporting students and faculty, who express pro-Palestinian views.
I believe you call this a, quote, ideological deportation policy. I’m curious, is this a written policy or is it something else?
Alex Abdo:
Well, that’s what we’re engaged in discovery right now, to figure out, is just to what extent the government has memorialized this policy in any number of internal documents.
I can’t actually go into the details of what we’ve been finding through discovery, but I can tell you what we alleged when we went into court, which is that this is a policy that the government has announced from the hills.
Its senior administration officials have consistently explained that it is their view, that if an international student or scholar expresses a view, essentially that is pro-Palestinian, one that the government views to be anti-Semitic or anti-Israel, that they have the power to kick them out of the country, and that’s what we have seen the administration do time and time again.
We don’t actually know the full sweep of the government’s enforcement of this policy, but Secretary Rubio, at one point seemed to suggest that it had been at least 300 students and scholars who they have revoked the visas of or taken some other immigration action against.
Cristian Farias:
That’s one thing that as a journalist always strikes me, when there is a legal policy, either written or unwritten, and it needs to come out later, and then there’s the public actions, what they announce from the rooftops or from the hilltops.
There’s almost this disconnect, because on the one hand, you’re trying to defend this thing on legal grounds, but then publicly, the administration is putting out these smoking guns, as they say. Basically telling the whole world, "We’re doing this for this reason."
Now, why do your clients contend that this policy of targeting them for deportation for pro-Palestinian views, is so harmful?
Alex Abdo:
Well, it affects the ability of our clients to do their work, and it does that in a variety of ways.
Most directly, these faculty membership groups have a lot of international students and faculty who are members.
These are people who are directly chilled by this policy, because perhaps their research focuses on the Middle East, or they want to attend protests or engage in classroom discussions about controversial topics, including of course Israel and Palestine.
Those are all legitimate forms of protected speech, but these individuals, now, I think, rightfully fear that the government will point to that constitutionally protected speech as a basis for deporting them or as a basis for revoking their visas.
That’s perhaps the most direct effect, the international members of these groups, but the policy has a much broader effect, and that’s in part why we wanted to sue it on behalf of groups like the AAUP and MESA, the Middle East Studies Association.
That effect is to deny the US citizen members of these groups, the ability to engage with their international colleagues. To engage in the exchange of ideas that is supposed to be a hallmark of this country.
It’s trite to say, as somebody who is a First Amendment litigator, but the First Amendment is one of the things that makes this country special.
One of the things that distinguishes this country from other countries, and especially from autocracies around the world, is that you’re supposed to be able to be free to say what you want, so long as it is legitimate political speech.
Without fear that mass government agents are going to pick you off the street and throw you in jail.
That’s exactly what we’re seeing right now, and it’s shocking.
Cristian Farias:
I have a friend, who is from Iraq, who has been living here for a few years, and I showed him the video of Rumeysa Ozturk getting picked up off the street.
He texted back and said, “Cristian, I cannot believe what you just showed me. This is not something I ever thought I would see in this country. Maybe in my country, but not here.” It’s definitely a completely new normal or abnormal, so to speak.
Now, I want to drill down on something you just said, Alex, and especially the reality that there are US citizens who want to partner or who want to work with these international students and scholars.
I could totally imagine a scenario, where someone who belongs to one of these member organizations wants to write a paper with an American scholar, and the American scholar reaches out and says, "Hey, look, how about we partner to write this paper together?"
They say, “Oh, no, no, I can’t write that, because if I put my name to it, who knows what’s going to happen to me and my scholarship?” Am I onto something there?
Alex Abdo:
Yeah, and that’s exactly what we’re seeing. We’ve talked to international students and faculty from around the country, and they are terrified.
They’re stepping back from public life. They are no longer engaging in debate on controversial issues, especially Israel and Palestine, because they are worried that somebody will notice that they’re speaking on the topic.
They’ll send their paper, their syllabus, their tweet, a photo of them attending a protest, they’ll send it to the State Department and the State Department will deport them or try to deport them.
That fear is palpable, and it has created this atmosphere of repression on campuses around the country. It really is hard to overstate how significant that effect has been for international students and scholars and for international faculty that have students whose classes are now being affected.
Maybe you’re only concerned about US citizens. I don’t think you should be, but maybe you are, and it’s having a real effect for them too, for their ability to engage with interesting and important ideas that come from around the world.
Cristian Farias:
Indeed. Now, this case, AUP v Rubio. It reminds me a little bit of the case of Mahmoud Khalil, who was just released from detention a few days ago. His case also challenges this so-called policy that you guys are trying to get at and invalidate.
Now, how is this case that you’re litigating, different from Mahmoud’s or other students who are also challenging their deportations?
Alex Abdo:
There are really two main differences. The first is, that we are really focused on challenging the policy as a whole, and getting relief against the policy as a whole.
Our goal is to end the administration’s broad efforts to target students and faculty on the basis of their pro-Palestinian expression.
The second main difference is that we’re trying to highlight, both for the public and for the courts, the broad effect that this policy has, not just on the individuals being targeted, but on the community of scholars and on higher education as a whole.
That’s why we’re suing on behalf, again, of these faculty membership organizations, whose mission is to protect academic freedom.
Cristian Farias:
These plaintiffs are in essence, standing up for student and faculty member’s First Amendment rights as non-citizens.
That’s something the Supreme Court has said, "Non-citizens have a First Amendment right to be able to speak without fear that they’ll be deported based on their speech."
They’re also standing up for themselves, these plaintiffs, as organizations, whose own speech rights are being violated. Do I have that right?
Alex Abdo:
Yeah, that’s exactly right. These organizations rely on their membership to figure out what their priorities should be, to engage in the advocacy that they engage in, in support of higher education and free speech and scholarship.
They’ve been impacted in their ability to do so, because non-citizen members have stepped back from leadership roles, they’ve stopped attending meetings. When they do attend meetings, they stay on mute or they keep their videos off.
Again, the chill is real, and it is hard to overstate just how terrified so many people are, that they’re going to be swept up in the administration’s immigration sweeps.
Cristian Farias:
Alex, we’re going to get a little wonky here, so please bear with me, but at the heart of this case is a determination by the Secretary of State, as spelled out in federal law, that these students pose a threat to the foreign policy objectives of the US government.
Now, personally to me, that’s laughable on its face. I believe some of the students have also found it laughable. Something that’s not laughable to me, is that these cabinet-level determinations tend to be very, very difficult to challenge in court.
We saw this with the first Muslim ban case, during the first Trump administration. Whenever you have this clash between a First Amendment right and these national security prerogatives, a lot of times the national security side is going to win.
Now, how should people think about this tension between the First Amendment and the so-called foreign policy objectives of the government?
Alex Abdo:
Well, I think the most important thing to point out, is that this foreign policy justification is an obvious fig leaf. It’s a pretext. There’s really just no question that what Secretary Rubio is trying to do is tamp down on constitutionally protected speech he doesn’t like.
If that provides a basis for kicking people out of the country, that’s just another way of saying that international students and faculty, who are here lawfully, have no free speech rights, and maybe I’ll accept the invitation to get wonky.
The Supreme Court has rejected that position. In a case about 80 years ago, called Bridges, the Supreme Court made clear that non-citizens who are in the country lawfully, have First Amendment rights.
If the First Amendment means anything, again, it has to mean that you can’t be picked up and thrown in jail or thrown out of the country for engaging in core political speech.
Now, to be fair, there are some legitimate questions about what the full scope is of First Amendment rights that non-citizens have. There are some contexts in which those rights can probably be limited.
Non-citizens can’t vote, for example, even though the vote is perhaps one of the most potent forms of political expression.
There really shouldn’t be any debate that non-citizens have the core First Amendment right to engage in peaceful political protest.
Cristian Farias:
By the way, the case Alex just mentioned, Bridges. It’s Bridges v Wixon, decided in 1945. It actually came up in last week’s episode. Check that out, it was a great show
The case you filed, you filed it in March, and it’s going to trial on July 7. Now to me, that’s lightning fast, as far as these things go. How come things have moved so quickly?
Alex Abdo:
It is lightning fast. We filed the case, and a week later we filed a preliminary injunction motion. Which is basically a motion, asking the court to put things on hold while the case plays out.
We asked the court to do that, because the policy is imposing harms right now, and is causing the kinds of harms that courts call irreparable.
There’s no meaningful relief you can get after the fact, for the government having censored protected speech.
The court decided, better to move quickly to trial, and we have taken Judge Young up on that invitation, and we are doing our best to race through discovery, so that we’re ready to go, starting July 7th.
Cristian Farias:
That would be Judge William Young of the District of Massachusetts, who by the way, is one of my favorite judges.
Not because of the way he rules, but because he makes his courtroom publicly available through Zoom streaming, which not all judges do.
That’s a big First Amendment prop to him, for making his courtroom available to the public, and people may be able to check out this trial as well that way.
Now, naturally, because of this expedited nature, you’ve had to do a lot of work in a very compressed timeline.
A few weeks ago you won an important pre-trial order, preventing retaliation against witnesses. Can you tell me more about that order and why it matters so much?
Alex Abdo:
Yeah. The non-citizen members of AAUP and MESA, who we’ve been talking to about potentially testifying at trial, they’re scared.
They’re scared that if they participate in the case, if they present the evidence that they have to the court, that the government will retaliate against them.
We asked the court to issue ... We asked the government first, to agree with us in a filing, that it wasn’t going to retaliate against these individuals and to limit the way it could use the information it learns about these individuals at trial, and the government refused.
That in itself was shocking and scary, and so we presented the motion to the court. The government opposed it, and the court very quickly ruled in our favor, issuing a one sentence, very stern prohibition on any retaliation against people who present evidence at the trial.
Cristian Farias:
If anyone wants to look up what’s currently public, I mean, just the declarations from your clients, expressing or explaining the harms that they face as part of this policy, are very compelling.
I encourage everyone to look them up, because from there, you’re going to learn a lot about what the plaintiffs are facing in the flesh, in real life.
Now, for people interested-
Alex Abdo:
Can I just underscore that, Cristian?
Cristian Farias:
Sure, go ahead.
Alex Abdo:
These people are heroes. These people have extraordinary courage, and I have been moved to tears in some instances, to hear their stories and to witness their courage in being willing to take the stand.
It is really a heroic act, and one that somebody has to do. It’s very hard to be the one to make the decision to do it, and their stories, when they take the stand in a couple of weeks, will be extremely, extremely powerful.
Cristian Farias:
We’ll all be tuning in. Now, for people interested precisely in doing that, and tuning in perhaps via Zoom, or showing up in court or supporting the plaintiffs in this case, what should they be looking out for, as they witness or read about the trial as it unfolds?
Alex Abdo:
Well, the key question, the one that the judge has made clear he wants to hear evidence on, is whether this policy in fact exists.
We’re going to present evidence that this policy does exist, that administration officials have been talking about it, and they’ve been taking a lot of steps behind closed doors to implement it. That will be probably the central factual question in the case.
The other one that Judge Young said he wanted to hear about, is whether our clients have been injured? Whether they have what is called legal standing to be the ones going into court to make these claims?
As I mentioned, we’ll be presenting some of the non-citizen members, some of the citizen members of our clients on the stand, to testify about the harms that this policy has caused them.
Cristian Farias:
Finally, Alex, the summer is usually an opportunity for everyone, even lawyers, to recharge and to rejuvenate. I imagine, this summer, which is only getting started, feels a little different.
As I said, Mahmoud Khalil has finally been released, but the Trump administration is charging ahead with attempts to deport him and other students and faculty members, targeted over their pro-Palestinian views.
What would you say to people in your orbit, tempted to give into despair? How do you encourage yourself, your team, and all the amazing lawyers taking on this work?
Alex Abdo:
You have to be an optimist. You have to have hope, that with enough fight, enough backbone, enough courage, we can push back.
That’s what has kept me going personally, in this line of work for the past 20 years or so.
That’s what I’ve drawn hope from, when I look at the people who have done this work in the past, who I idolize, who are my models. You have to have hope, you have to have fight.
Cristian Farias:
Alex, because you just piqued my curiosity, who are some of those idols that you look up to?
Alex Abdo:
One of the ones I like and I look up to, is Aryeh Neier. Somebody who has had decades of public service in human rights.
Who, even though he’s been doing this for so long, still to this day is so committed to these foundational principles, and unflinching in identifying what he thinks of as wrongs, and calling them out.
Cristian Farias:
Alex Abdo, he’s the Litigation Director at the Knight First Amendment Institute, and he will be there at the trial, in AAUP v Rubio. Alex, thank you so much for coming on the show.
Alex Abdo:
Thanks again for having me, Cristian.
Cristian Farias:
Good luck to all the lawyers who have been working around the clock to be ready for trial on July 7.
If you’re in the Boston area, please come out to the federal courthouse, where there will be a rally in support of the plaintiffs, and all the students and faculty who are fighting for their right to speak out without fear.
Before we end our show, I want to make a quick clarification regarding the point made in last week’s episode.
I said, that at 2011 Ninth Circuit decision, establishing a First Amendment right for day laborers to seek work in public, also established the law for the entire nation.
Instead, the case set binding precedent in the Ninth Circuit, and that precedent became persuasive authority for other courts throughout the nation. See you next week.
The Bully’s Pulpit is a production of the Knight First Amendment Institute at Columbia University.
I’m your host, Cristian Farias. This episode was written by me, and co-produced by Ann Marie Awad and Candace White.
Our associate producer for this episode is Kushil Dev. Fact Checking by Kushil Dev, Ellie Fivas and Ella Sohn.
Our sound engineer is Patrick McNameeking. Candace White is our executive producer. Our music comes from Epidemic Sound. The art for our show was designed by Astrid de Silva.
Thanks to Alex Abdo, who joined us for this episode. The Bully’s Pulpit is available on Apple, Spotify, and wherever you listen to podcasts.
Please subscribe and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That’s Knight with a K, and follow us on social media.