Case Summary and Outcome

The United States District Court for the District of Massachusetts held that senior federal officials unlawfully used immigration enforcement to target noncitizens for their pro-Palestinian political expression. The Plaintiffs, the American Association of University Professors (AAUP), the Middle East Studies Association (MESA), and several noncitizen students and scholars engaged in academic and campus advocacy, alleged that their members were singled out for adverse immigration action because of their protected expression. The Defendant Public Officials, including the U.S. Secretary of Homeland Security, the U.S. Secretary of State, and subordinate U.S. federal officials responsible for implementing the challenged enforcement practices, acted under presidential directives to arrest, detain, revoke visas, and initiate removal proceedings against noncitizens involved in protests, public demonstrations, and academic commentary. Federal authorities relied in part on internal reports drawing from third-party online sources and invoked a rarely used “foreign policy” removal provision of the Immigration and Nationality Act despite uncertainty about whether it applied to domestic political speech. The Court found that the Defendant Public Officials intentionally implemented these directives in a viewpoint-discriminatory manner that chilled protected expression in violation of the First Amendment of the U.S. Constitution which prohibits the government from restricting speech based on viewpoint, and further determined that practices such as masked arrests, lack of notice, and rapid transfers reinforced the chilling effect on noncitizen speakers. Federal officials had reversed longstanding guidance cautioning that expressive activity should not influence enforcement decisions, offered no explanation for the shift in approach, and deployed statutory authorities in ways without historical precedent. The Court found that these actions lacked a reasoned basis, represented an unexplained departure from established practice, and improperly expanded enforcement mechanisms to reach political expression. Concluding that the program unlawfully burdened the expressive rights of persons lawfully present in the United States, the Court vacated the enforcement regime in full, set aside the related arrests, visa revocations, and removal actions, entered judgment for the Plaintiffs, and reserved further proceedings to determine the scope of additional remedies.

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Facts

On January 20, 2025, U.S. President Donald Trump issued Executive Order 14161, titled “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats,” directed the Secretary of State to “vet and screen” all non-citizens “to the maximum degree possible” to ensure they do not “espouse hateful ideology” or “advocate for … foreign terrorists.” Shortly thereafter, Executive Order 14188 proclaimed a nationwide campaign “to combat anti-Semitism vigorously,” including recommendations that institutions of higher education monitor and report on non-citizen students and staff whose speech or associations might render them inadmissible or removable under terrorism-related or foreign-policy grounds. A presidential fact sheet titled “President Donald J. Trump Takes Forceful and Unprecedented Steps to Combat Anti-Semtisim” promised to find and deport “resident aliens who joined in the pro-jihadist protests” and “cancel the student visas of all Hamas sympathizers.” [p. 18-19] These directives followed months of widespread campus demonstrations after the October 7, 2023 Hamas-led attacks and Israel’s subsequent military operations in Gaza.

The enforcement directives had direct consequences for the academic community, particularly for members of the American Association of University Professors (AAUP) and the Middle East Studies Association (MESA), along with several AAUP chapters at Harvard University, New York University, and Rutgers University. These organizations represent faculty, researchers, and students across United States colleges and universities, including noncitizen scholars and graduate students who participate in campus advocacy, publish academic work, and engage in public debate. Members reported altering their academic or public activities as federal officials began implementing the presidential directives.

The government’s enforcement relied on the Immigration and Nationality Act (INA), specifically INA 212(a)(3)(C) on inadmissibility and INA 237(a)(4)(C) (Section 4C) on deportability. Under Section 4C, a non-citizen is deportable if the Secretary of State has reasonable grounds to believe their presence could have “serious adverse foreign policy consequences.” [p. 7] While non-citizens are normally protected from deportation for beliefs or statements lawful in the U.S., this protection is overridden if the Secretary of State determines that their presence would threaten a compelling U.S. foreign policy interest.

On February 28, 2025, Secretary of State Marco Rubio issued a directive called “Catch and Revoke,” aimed at strengthening visa screening under Executive Order 14161. The directive intensified the Department of State’s (DOS) use of its existing authority to revoke visas and formed part of a broader enforcement effort in which federal officials monitored non-citizen students and scholars for conduct deemed inconsistent with the presidential directives. This included an alleged social-media surveillance program that used artificial intelligence tools to identify individuals whose online activity, public statements, or campus advocacy might be interpreted as supportive of Palestinian rights or critical of Israeli military conduct, and universities reportedly received lists of persons flagged for potential enforcement action. The initiative operated across both foreign posts and domestic enforcement settings, and by May 2025 had resulted in a significant rise in visa revocations.

The enforcement measures at issue were carried out by senior federal officials including Secretary of State Marco Rubio, Secretary of Homeland Security Kristi Noem, Acting Director of Immigration and Customs Enforcement (ICE) Todd Lyons, and various Homeland Security Investigations (HSI) and Department of State (DOS) officials responsible for preparing intelligence materials, initiating visa revocations, requesting foreign-policy-based removal determinations, and directing arrest operations.

Implementation of the directives occurred through interagency cooperation, particularly via the Homeland Security Council, which held 12-20 meetings, mostly during March 2025, to discuss, among other things, student visa revocations. The HSI Office of Intelligence, under the Department of Homeland Security (DHS) was tasked in early March with investigating non-citizen protesters for potential violations of U.S. laws, specifically immigration and customs laws, looking for instances of violence, inciting violence, or “supporting terrorist organizations.” [p. 23] The Office of Intelligence assembled a “Tiger Team” to accelerate the drafting of Reports of Analysis (ROAs), which are internal intelligence summaries used to flag individuals for potential enforcement action based on collected information. HSI leadership directed Assistant Director Peter Hatch to review the names of student protestors on the Canary Mission website, a database that “purports to ‘document individuals who promote hatred of the USA, Israel and Jews on North American college campuses and beyond’.” [p. 24] This list made up the “bulk of the sources for HSI’s investigations.” [p. 26]

On March 6, 2025, HSI issued an ROA for Yunseo Chung, a Lawful Permanent Resident (LPR), noting misdemeanor charges from a Barnard College protest the previous day. That evening, ICE National Security Division Assistant Director Andre Watson sent a referral letter to the DOS asserting that Chung’s participation in the protest, where “Hamas fliers were distributed,” [p. 29] violated President Trump’s executive orders on anti-Semitism and could justify a foreign-policy based removal determination under INA section 237(a)(4)(C). Although HSI had no evidence Chung distributed the flyers, Watson characterized her involvement as “antisemitic activities” [p. 29] that could undermine U.S. foreign policy by creating a “hostile environment for Jewish students” [p. 29] and signaling support for a designated terrorist organization. Watson requested a personal determination from Secretary Rubio under section 237(a)(4)(C).

That same day, HSI issued an ROA for Mahmoud Khalil, also an LPR and spouse of a U.S. citizen. The ROA acknowledged no criminal history, but cited critical statements about Israel, participation in Columbia University demonstrations, and a Canary Mission article portraying him as a negotiator for a “pro-Hamas” coalition in 2024. On March 7, Watson sent a similar referral letter to DOS, again asserting, that Khalil had distributed flyers, even though “there is neither an allegation nor evidence of Khalil actually distributing flyers,” [p. 31] and that Khalil’s participation in the March 6 Barnard protest aligned with the executive order’s focus on deporting “Hamas sympathizers.” [p. 31] He labeled Khalil a “prominent pro-Palestinian activist” whose involvement in “antisemitic activities” and “disruptive protests” could undermine U.S. foreign policy. [p. 31]

On March 8, Senior Bureau Official (SBO) John Armstrong submitted an Action Memo recommending that Secretary Rubio find both individuals removable under INA section 237(a)(4)(C). Relying solely on the HSI materials, Armstrong defined anti-Semitism broadly as prejudices or actions against Jewish people or Israel, and concluded that Chung and Khalil’s alleged roles in “antisemitic protests” could have “serious adverse foreign policy consequences.” [p. 32] He cautioned that DHS had identified no alternative grounds of removability and warned that using section 237(a)(4)(C) against LPRs would be unprecedented and legally vulnerable stating: “We are not aware of any prior exercises of the Secretary’s removal authority under … [INA 237(a)(4)(C)], and given their LPR status, Chung and Khalil are likely to challenge their removal under this authority, and courts may scrutinize the basis for these determinations.” [p. 35]

Later on the same day, Secretary Rubio accepted the recommendations and deemed both individuals deportable under section 237(a)(4)(C), mirroring Armstrong’s reasoning. Administrative arrest warrants followed. Khalil was arrested that night in his apartment lobby. On March 9, Secretary Rubio publicly announced President Trump’s administration’s intent to deport “Hamas supporters,” posting Khalil’s photograph, and DHS stated he had led activities “aligned to Hamas.” Chung, however, obtained a temporary restraining order, later replaced by a preliminary injunction, preventing her arrest.

Similarly, Rümeysa Öztürk, a Tufts University graduate student on an F-1 student visa, was investigated based on a Canary Mission posting and cited for co-authoring an op-ed urging Tufts to divest from Israel, criticizing Israel for “[c]redible accusations against Israel include[ing] accounts of deliberate starvation and indiscriminate slaughter of Palestinian civilians and plausible genocide.” [p. 64] Although Deputy Assistant Secretary Stuart Wilson noted that DHS had no evidence she engaged in antisemitic activity or supported a terrorist organization, SBO Armstrong approved revocation of her visa under INA section 221(i). Armstrong noted that he applied a “totality of the circumstances” [p. 68] approach, emphasizing her protests against Tufts’ Israel ties and associations with groups that could “undermine foreign policy by creating a hostile environment for Jewish students.” [p. 69] Öztürk was arrested on March 25, 2025, by plain-clothes, masked HSI agents in Somerville, Massachusetts. Secretary Rubio later, in a press conference, correlated her op-ed with “vandalizing universities” and “harassing students,” asserting her activities justified visa revocation as contrary to U.S. foreign policy. [p. 79]

The highly visible and publicized arrests of individuals like Khalil and Öztürk, along with statements by President Trump and senior officials indicating additional arrests could occur, were widely publicized. Several LPR members of AAUP and MESA testified that these events affected their behavior. 

Ms. Nadje Al-Ali, a Professor of International Studies at Brown University, an LPR, and a member of MESA and AAUP, testified that she canceled international travel, limited her writing on Israeli policies, and stopped attending protests because she feared potential immigration consequences. Ms. Megan Hyska, a Professor at Northwestern University, a Canadian citizen, LPR and an AAUP member, testified that she refrained from publishing an Op-Ed critical of the Trump Administration following Öztürk’s arrest. Mr. Bernard Nickel, a Philosophy Professor at Harvard University, a German citizen, LPR, and AAUP member, testified that he adopted a general practice of avoiding public activities, including protests, and canceled international travel to visit his ill brother, stating that he “didn’t think that those kinds of … arrests would happen in America, but they did.” [p. 40] Both AAUP and MESA reported diverting organizational resources to hold town halls and provide immigration-related information to members, which they stated disrupted their ordinary programming.

The lawsuit, brought by AAUP, including its chapters at Harvard, New York University, and Rutgers, and MESA, was filed in the United States District Court for the District of Massachusetts on March 25, 2025. The suit named as Defendants the senior federal officials responsible for implementing the enforcement measures described above, including the Secretary of State, the Secretary of Homeland Security, the Acting Director of Immigration and Customs Enforcement, and the President of the United States in his official capacity.  The organizations sought declaratory and injunctive relief against the Defendant Public Officials, challenging the government’s policy of targeting non-citizen students and faculty for arrest, detention, visa revocation, and removal based on their pro-Palestinian or critical-of-Israel speech and association. The Plaintiffs, represented by private counsel and the Knight First Amendment Institute at Columbia University, sought the relief under the First Amendment of the U.S. Constitution, which protects freedom of speech and expressive activity from government interference, the Fifth Amendment of the U.S. Constitution, which guarantees due process of law, and the Administrative Procedure Act (APA), which governs the lawfulness of federal agency action. Several academic and human rights organizations submitted amicus briefs in support of the request for preliminary relief. After the Plaintiffs moved for a preliminary injunction on April 1, the Court held a hearing on April 23 and, treating the government’s opposition as a motion to dismiss, consolidated the proceedings with the merits. 

On April 29, 2025, the Court issued a Memorandum and Order addressing the government’s jurisdictional and threshold challenges. The Court held that it had jurisdiction to hear the organizations’ challenge, rejecting the Government’s arguments that the INA stripped the court of authority and finding that the challenged provisions limited only certain forms of injunctive relief and did not bar declaratory relief or review of agency action. It further held that jurisdiction was not removed because the organizational Plaintiffs challenged an underlying policy rather than individual removal decisions. The Court found that the organizations had standing, concluding that they plausibly alleged an objectively reasonable chill on noncitizen members’ political expression due to a credible threat of immigration consequences, supported by concrete self-censorship, and that one organization also showed direct harm to its activities through disruption of its mission and diversion of resources. On the merits, the Court reaffirmed that noncitizens have First Amendment protections and that political speech lies at their core, and held that allegations of an unwritten policy targeting pro-Palestinian or Israel-critical expression through coercive threats plausibly stated claims of content- and viewpoint-based discrimination and unlawful informal censorship, allowing the First Amendment claims to proceed. The Court dismissed the Fifth Amendment vagueness claim on the ground that due process vagueness protections apply to statutes or written rules, not unwritten policies, but allowed the APA claim to move forward, finding that the alleged pattern of executive conduct could constitute reviewable final agency action and that individual removal proceedings were not an adequate remedy for the broader systemic harms alleged.

Pretrial proceedings continued. The Court denied requests for anonymous testimony and certain additional discovery in late June, ordered a truncated set of pretrial filings, and set a bench trial. After a full hearing, the Court held a nine-day bench trial between July 7 and July 21, 2025, where it heard the testimony of 15 witnesses and admitted 250 exhibits, consisting of documents, photographs, and video clips. Following the trial, the Court issued the following findings of fact and rulings of law. 

Further in early October, the Court docketed an unsolicited letter from a non party requesting the Judge’s recusal, noting it without substantive response. On November 10, the Plaintiffs asked the Court to issue remedies, including a formal declaration that the policy was unlawful, a court order blocking officials from enforcing it, and the cancellation of the policy under the APA. The Court scheduled a hearing on these requests for December 15. The proceedings remain ongoing.

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Decision Overview

Judge William G. Young of the United States District Court for the District of Massachusetts delivered the findings of fact and rulings of law in this case. The central questions before the Court were whether senior federal officials, acting pursuant to Executive Orders 14161 and 14188, implemented an unconstitutional viewpoint-based enforcement regime by arresting, detaining, revoking visas, and initiating removal proceedings against noncitizens on the basis of their pro-Palestinian or perceived “anti-Israel” political expression, whether the government’s actions constituted an unlawful coercion campaign aimed at chilling protected speech, and whether the resulting enforcement program amounted to final agency action that was arbitrary, capricious, or contrary to constitutional rights under the APA, a federal statute that allows courts to review and set aside unlawful or arbitrary agency actions. The Court was further required to determine whether these constitutional and statutory claims were justiciable in light of the Immigration and Nationality Act’s jurisdiction-restricting provisions and the Executive’s asserted plenary authority over immigration and foreign affairs.

The Plaintiffs AAUP and MESA argued that the Public Officials orchestrated an unlawful, coordinated enforcement campaign aimed at suppressing pro Palestinian political expression by noncitizens. They asserted that Executive Orders 14161 and 14188, along with the Tiger Team process, ROA production, and visa revocation directives, formed an integrated mechanism designed to penalize a disfavored political viewpoint. Plaintiffs maintained that the initiative constituted an ideological deportation policy implemented through discretionary immigration authority, relying heavily on biased sources such as the Canary Mission database and on open source allegations drawn from public internet materials, including anonymous Canary Mission profiles, news articles and social media posts labeling targets “pro Hamas,” and reporting from sites such as meforum.org, Middle East Monitor, and Instagram accounts that agents characterized as Hamas propaganda, without independent corroboration by reliable evidence.

For instance, the Plaintiffs pointed to an ROA that was prepared for Badar Khan Suri, a Georgetown University foreign exchange student with no criminal history or prior immigration violations, which nonetheless asserted, “according to open source reporting, Khan Suri actively spreads Hamas propaganda and promotes anti-Semitism on social media,” based on sources such as meforum.org, an Instagram account claiming affiliation with that site, articles authored by Suri for Middle East Monitor, and Instagram posts that merely “appear” to be “Pro-Palestinian content.” [p. 42] Plaintiffs maintained that this reflected a broader practice in which the Canary Mission website served as a primary investigative source, despite the absence of any finding as to the truth or reliability of its contents, and that adverse action was often triggered by online allegations labeling individuals “pro-Hamas.” 

They further contended that this enforcement structure violated the First Amendment by intentionally targeting core political advocacy critical of Israel and supportive of Palestinians, and by weaponizing immigration tools to chill expression. Plaintiffs argued that the Public Officials’ public statements confirmed the intent behind the program, pointing to repeated declarations by the President, the Secretary of State, and senior DHS officials promising to “kick out,” “deport,” or “revoke the visas” of protestors and “Hamas supporters,” terms the Plaintiffs contended were used synonymously with pro Palestinian speakers.

The Plaintiffs further argued that none of the speech underlying the enforcement actions met the Brandenburg v. Ohio standard for incitement or approached unprotected advocacy. They emphasized that the targeted individuals engaged in protected expression, including campus protests, public commentary, academic writing, and criticism of Israel, none of which constituted imminent lawless action or material support for terrorism. Plaintiffs contended that the Public Officials distorted the Executive Orders’ definition of antisemitism to encompass legitimate political speech, enabling analysts to classify criticisms of Israel as indicators of hostility or terrorist sympathy. Plaintiffs argued that this misuse transformed the Executive Orders into de facto speech codes. They also argued that the Public Officials used extraordinary statutory measures, such as INA 237(a)(4)(C), in unprecedented ways to initiate deportation proceedings against individuals with no criminal or national security predicates. Plaintiffs maintained that the policy violated the APA because it was arbitrary, capricious, unsupported by the administrative record, and contrary to constitutional rights. They asserted that the agencies failed to provide a reasoned explanation for their departure from existing DHS guidance that expressly forbade considering a noncitizen’s protected speech in enforcement decisions.

The Defendant Public Officials disputed these claims. They argued that Executive Orders 14161 and 14188 were legitimate exercises of presidential authority intended to combat antisemitism and address national security risks associated with foreign terrorist organizations. Officials maintained that the Orders did not regulate political speech but required agencies to reassess immigration benefits for individuals who might pose foreign policy or public safety concerns. They asserted that the implementation of the Orders through ROAs, interagency review, and visa revocation authority represented standard immigration practice. Public Officials argued that analysts properly consulted publicly available information, including social media, press reports, and third-party sources, as part of a holistic assessment of potential threats. They denied that the Canary Mission database dictated enforcement outcomes, contending instead that it was only one among many tools used to gather information.

The Public Officials further argued that Plaintiffs had failed to show intentional viewpoint discrimination. They claimed that adverse actions were based on indicators of possible terrorist affiliation or foreign policy harms, and not on political viewpoints. The Officials maintained that participation in protests, campus demonstrations, or public discourse could, in some instances, overlap with expressions of support for designated terrorist organizations, justifying closer scrutiny under the Executive Orders. They argued that even if the Orders incidentally affected certain speakers, such incidental effects do not constitute viewpoint discrimination. The Officials also asserted that the President’s statements were political rhetoric rather than binding directives, and that immigration decisions were made by career officers applying statutory requirements. With respect to the APA, the Public Officials argued that the enforcement steps did not constitute final agency action because visa revocations and enforcement priorities fall within the Executive’s broad discretion, particularly in the context of foreign affairs and national security. They maintained that the INA affords the Executive significant flexibility, and that courts must defer to such judgments under precedents like Kleindienst v. Mandel and Trump v. Hawaii.

The Public Officials lastly argued that Plaintiffs lacked standing. They contended that the alleged chill was subjective, that no Plaintiff faced an imminent threat of enforcement, and that organizational harms were self-inflicted diversions of resources that do not confer standing.

They disputed that any Plaintiff had shown a credible threat of prosecution, asserting that they had neither been directly threatened nor targeted based on speech. They maintained that Plaintiffs’ members were not within any regulated class because the challenged actions involved discretionary immigration judgments made on individualized records rather than a policy directed at pro Palestinian advocacy. According to Public Officials, the speculative fear that an individual might someday be investigated did not meet the constitutional requirements for injury in fact.

The Court at the outset, and prior to conducting its rulings of law, made inferences from the factual record. The Court set out a series of factual conclusions it considered essential to understanding the nature, purpose, and consequences of the government conduct challenged in this case.

The Court began by identifying what it termed “the great paradox of this case,” [p. 95] observing that the government witnesses who testified were, “to a person,” credible, dedicated, and nonpartisan professionals, individuals the Court described as “true patriots” who were nonetheless “weaponized by their highest superiors to reach foregone conclusions for most ignoble ends.” [p. 96] The Court inferred from the trial record that the professionals who carried out the operational steps did not themselves design the broader initiative. Instead, their work was repurposed by senior leadership for objectives unrelated to the ordinary aims of immigration enforcement.

The Court expressly found that “there was no ideological deportation policy.” [p. 96] It concluded that the Secretaries did not intend to deport all pro Palestinian noncitizens because such a program would constitute an “obvious First Amendment violation” and provoke “a major outcry.” [p. 96] Rather, the Court inferred that the Secretaries pursued “a more invidious” objective: “to target a few for speaking out and then use the full rigor of the Immigration and Nationality Act (in ways it had never been used before) to have them publicly deported” in order to “tamp down pro Palestinian student protests and terrorize similarly situated non citizen (and other) pro Palestinians into silence because their views were unwelcome.” [p. 96]

The Court found that this strategy “succeeded, apparently well beyond their immediate intentions.” [p. 97] Although the record permitted speculation that the Secretaries may have acted under White House direction, the Court declined to make that finding, stating clearly that “speculation is not evidence.” [p. 97] What the Court did find, however, was that even if the President did not authorize the operation, “once it was in play the President wholeheartedly supported it,” offering “many individual case specific comments (some quite cruel)” which demonstrated that he “has been fully briefed.” [p. 97] The Court held that such conduct violated the President’s constitutional duty to “faithfully execute the Office” and to “take Care that the Laws be faithfully executed.” [p. 97]

The Court emphasized that “the fact that the President is, for all practical purposes, totally immune from any consequences for this conduct,” citing Trump v. United States, “does not relieve this Court of its duty to find the facts.” [p. 97] The Court therefore placed its factual determinations in the record notwithstanding the structural limits on accountability.

The Court continued its inferences with an observation about the absence of institutional or political response. It stated that “in the golden age of our democracy, this opinion might end here,” because the facts established that the President had approved “truly scandalous and unconstitutional suppression of free speech” by his senior cabinet officials, and “one would imagine that the corrective would follow as a matter of course.” [p. 97] Instead, the Court found that “nothing will happen,” noting that the Department of Justice (DOJ) represents the President and Congress “is occupied with other weighty matters.” [p. 97]

The Court inferred further that public outcry would also be absent. The Court identified several reasons, including that “the President in recent months has strikingly unapologetically increased his attack on First Amendment values,” [p. 98] and that the issues in this case had begun months earlier. The Court credited evidence that ICE has “successfully persuaded the public that it is our principal criminal law enforcement agency,” when in fact it “has nothing whatever to do with criminal law enforcement.” [p. 98] The Court found that ICE “seeks to avoid the actual criminal courts at all costs” and instead “drapes itself in the public’s understanding of the criminal law” through “warrants” that are “but unreviewed orders from an ICE superior,” and “immigration courts” that “are not true courts at all.” [p. 98]

On this record, the Court inferred that the agency’s posture operated to obscure the civil nature of immigration enforcement and to borrow public trust attached to the criminal justice system. The Court noted that in this administrative structure, immigration judges “must speak with [the President’s] voice,” and “the People’s presence as jurors is unthinkable.” [p. 98]

The Court then turned to the evidence concerning masked ICE agents. Having weighed the explanations offered by Öztürk’s captors, as well as those put forward by Acting ICE Director Todd Lyons, the Court explained that it “rejects this testimony as disingenuous, squalid and dishonorable.” [p. 99] The Court ultimately found that “ICE goes masked for a single reason — to terrorize Americans into quiescence.” [p. 99] The Court contrasted this with the conduct of the military, noting that “our troops do not ordinarily wear masks,” and that masking evokes “cowardly desperados and the despised Ku Klux Klan.” [p. 99] The Court concluded that “in all our history we have never tolerated an armed masked secret police,” and that ICE’s conduct “brings indelible obloquy to this administration and everyone who works in it.” [p. 100]

The Court inferred additional dangers flowing from the record: “If the distinguished Homeland Security intelligence agency can be weaponized to squelch the free speech rights of a small, hapless group of non citizens in our midst, so too can the Federal Home Loan Mortgage Corporation, and the audit divisions of the I.R.S. and the Social Security Administration be unconstitutionally weaponized” against any group the President targets. [p. 100] The Court described this prospect as fundamentally incompatible with the U.S. Constitution. The Court concluded by stating that the “only Constitutional rights upon which we can depend are those we extend to the weakest and most reviled among us.” [p. 101]

Before reaching the substantive First Amendment questions, the Court addressed Article III associational and organizational standing. Associational standing permits an organization to sue on behalf of its members when at least one member has suffered a concrete injury, the interests at stake are germane to the organization’s purpose, and the claim does not require individual member participation. Applying the established framework for chill based First Amendment claims, the Court held that plaintiffs must show an intention to engage in conduct “arguably affected with a constitutional interest” [p. 103] coupled with a credible threat of adverse enforcement or demonstrate that they have foregone expression to avoid such consequences. The Court found that the noncitizen members were “squarely within the class that is subject to the alleged mode of enforcement,” and credited testimony from Professors Al Ali, Hyska, and Nickel to conclude that they faced an objective chill after the arrests of Khalil and Ozturk and the President’s statement that Khalil’s arrest was only “one of many,” noting that “it is an odd kind of freedom that compels one to leave writing unpublished, leadership positions unpursued, and terminally ill relatives unvisited.” [p. 111] On this basis, the Court ruled that AAUP and MESA satisfied associational standing, while the individual AAUP chapters, including Rutgers AAUP–AFT, did not, because “the Plaintiffs did not provide evidence of the challenged policy’s effects on the individual AAUP chapters” and “do not press the issue in their briefing,” and therefore “only AAUP itself, and not these individual chapters, has standing.” [p. 116]

Organizational standing, which exists when a challenged action directly impairs an organization’s core activities rather than merely causing resource diversion, was recognized only for MESA; the Court found that the enforcement regime materially interfered with its core mission by chilling scholarly exchange, reducing anticipated participation at its annual meeting, and threatening the “lifeblood of the organization,” [p. 113] whereas AAUP’s asserted burdens were voluntary and did not constitute direct mission impairment. With jurisdiction established, the Court proceeded to the merits under Count I.

The Court began its analysis of Count I concerning First Amendment viewpoint discrimination by identifying two threshold questions. First, what First Amendment rights noncitizens lawfully present in the United States possess. Second, what standard of review governs a challenge to an alleged ideological deportation policy implementing the President’s Executive Orders. [p. 116] The Court explained that it had already held that noncitizens possess at least the core First Amendment right to political speech without reprisal. Yet, given the significance of the issue, it elaborated on its reasoning.

The Court grounded its conclusion in the plain constitutional text: “Congress shall make no law … abridging the freedom of speech.” [p. 124] As the Supreme Court stated in Bridges v. Wixon, this text “at least arguably implies that freedom of speech is accorded aliens residing in this country.” [p. 124] The Court emphasized that the First Amendment’s chief concern is with the character and quality of the speech that occurs on American soil, invoking Justice Holmes’s well-known statement in Abrams v. United States that “free trade in ideas” is the “best test of truth.” [p. 124] The Court further relied on Justice Marshall’s dissent in Mandel, which described the “freedom to speak and the freedom to hear” as inseparable and fundamental to the process of democratic deliberation. [p. 124]

Having reviewed this doctrinal foundation, the Court stated: “No law means no law,” [p. 3] and rejected the idea that the First Amendment silently endorses a distinction between citizens and noncitizens. The Court reaffirmed that noncitizens lawfully present have the same constitutional protection against speech-based penalties as citizens. This conclusion rejected the Public Officials’ reliance on exclusion cases, observing that while immigration doctrine contains pockets of deference, deportation remains a “drastic sanction” [p. 121] that requires meaningful justification and cannot be used to target political speech. The Court held that “Secretaries Noem and Rubio are engaged in a mode of enforcement leading to detaining, deporting, and revoking noncitizens’ visas solely on the basis of political speech, and with the intent of chilling such speech and that of others similarly situated. Such conduct is not only unconstitutional, but a thing virtually unknown to our constitutional tradition.” [p. 123]

Addressing the standard of review, the Court explained that it did not need to decide definitively among tiers of scrutiny because the Plaintiffs prevailed even under the “facially legitimate and bona fide” standard drawn from Mandel and reaffirmed in Department of State v. Munoz, or under Hartman v. Moore. [p. 125] The Court noted that, absent a facial challenge, the question is the nature of the enforcement policy and whether it is viewpoint discriminatory. As the Court reiterated, “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys,” and “[d]iscrimination against speech because of its message is presumed to be unconstitutional” citing Rosenberger v. Rector & Visitors of the University of Virginia. [fn. 40] The Court further quoted Christian Legal Society v. Martinez for the principle that adopting a facially neutral policy for the purpose of suppressing a particular viewpoint is itself viewpoint discrimination. [fn. 40]

The Court then turned to the governing test for as applied viewpoint discrimination where the enforcement mechanism, and not the text of the statute, is challenged. Citing McGuire v. Reilly, the Court held that Plaintiffs must show that “the law itself is neutral and constitutional, but that it has been enforced selectively in a viewpoint discriminatory way.” [p. 126] The Court explained that while Plaintiffs argued that viewpoint discrimination alone should be sufficient under Iancu v. Brunetti, this case required a demonstration of intent. The Court, quoting McGuire, reiterated that: “[s]ome showing of intent on the part of government officials probably is necessary to make out an as applied First Amendment viewpoint discrimination claim in this case.” [p. 130]

With these doctrinal foundations set, the Court tackled the evidentiary question of intent. The Court held that the Plaintiffs proved “by clear and convincing evidence that Secretaries Noem and Rubio have intentionally and in concert implemented Executive Orders 14161 and 14188 in a viewpoint discriminatory way to chill protected speech.” [p. 101] The Court catalogued the evidence supporting this conclusion. It began with the public statements of high-ranking officials, including the President’s campaign promise to “put an end” to the student protests by removing protestors, the subsequent commitment to deport those who “joined in the pro jihadist protests,” and Secretary Rubio’s pledge to deport “Hamas supporters” and individuals who “participate in pro Hamas events.” [p. 130-131] These statements, the Court held, were not isolated, but established a purpose to suppress criticism of Israel and support for Palestinians.

The Court further examined the enforcement mechanism. The Court described the enforcement pipeline as “frictionless” and found that nearly every name elevated through the system received approval for adverse action. Crucially, the Court found “virtually no evidence that anyone along the way seriously questioned whether pure political speech in support of Palestine or against Israel could be construed as support for terrorism.” [p. 131] The Court stressed that the process used the language of “violating” the Executive Orders as though the Orders functioned as independent criminal or civil prohibitions, and that the term “Hamas sympathizer” was treated as self-defining, despite being undefined in law. [p. 132]

The Court also noted the central role played by the Executive Orders’ definition of antisemitism, which referenced comparisons between Israel and Nazi Germany, a form of political speech that is fully protected. The Court quoted Iancu: “The facial viewpoint bias in the law results in viewpoint discriminatory application.” [p. 130] It then rejected the agency’s interpretive approach, writing: “Criticisms of the State of Israel are not anti Semitism, they are political speech, protected speech. Even strong, vile criticisms of the State of Israel and its policies are protected speech.” [p. 131]

The Court noted how HSI analysts were directed to rely on lists created by Canary Mission, a site targeting individuals perceived as “pro Palestine” or critical of Israel. The Court highlighted that in at least one case, “a significant source of corroboration of allegations from the Canary Mission list appears to have been the Canary Mission article itself.” [fn. 43] This reliance on anonymous online accusations demonstrated that the process was not aimed at objectively identifying security threats, but at gathering names of individuals expressing disfavored viewpoints. The Court observed that once a person appeared on one of these lists, they were “potentially subject to adverse action so long as there was any online mention of one’s pro Palestine activities.” [p. 134] It further commented: “[w]atching the process at work, and not wishing to credit the Public Officials with incompetence, it would require a remarkable naivete not to conclude that this process worked as intended.” [p. 134]

Finally, the Court concluded that the enforcement program’s objective and intended effect was to chill protected speech. The Court, relying on Bantam Books, Inc. v. Sullivan and National Rifle Association v. Vullo, observed that a government official “cannot do indirectly what she is barred from doing directly.” [p. 136] Although the threats were not directed at specific plaintiffs, they corroborated the presence of a coercive environment intentionally aimed at suppressing pro-Palestinian advocacy. The Court therefore held that the enforcement of the President’s Executive Orders was intentionally viewpoint discriminatory, violated the First Amendment, and chilled protected expression in a manner inconsistent with the Constitution. [p. 135]

The Court, in its analysis of Count II, concerning the First Amendment coercion campaign, recalled that it had denied the motion to dismiss because the Plaintiffs plausibly alleged an unlawful coercion campaign whose essence appeared to overlap with the viewpoint discrimination claim under Count I. Based on the allegations of generalized threats to noncitizen speech, the Court concluded at that stage that the Plaintiffs had sufficiently stated a claim under the line of authority associated with Bantam Books. [p. 135] After trial, however, the Court determined that the Plaintiffs had not produced evidence of threats specifically targeted at their members but rather evidence of threats directed toward noncitizens in a general manner. The Court therefore held that the Plaintiffs had not proved a coercion campaign “as defined by this line of case law.” [p. 135]

The Court emphasized that although Count II was not established as an independent First Amendment violation, the “general principles underlying Bantam Books, and, more recently, [Vullo] have significantly informed its analysis of Count I.” [p. 135] Relying on Vullo, the Court explained that the Public Officials “may not in effect regulate speech by means of an unwritten enforcement procedure implementing a facially lawful Executive Order, as if speech codes were permissible so long as they were not written down.” [p. 136] The Court added that an unwritten speech code may be “more threatening to core constitutional values than a written one,” noting the ambiguity such a regime creates for would be speakers. [p. 136]

The Court found that Plaintiffs’ noncitizen members “have all been made to understand that there are certain things that it may be gravely dangerous for them to say or do, but have not been told precisely what those things are,” and observed that this diffuseness “does not render it less constitutionally suspect.” [p. 136] The Court explained that this understanding of danger was conveyed not only through threatening statements and speech targeted arrests, detentions, and visa revocations but also through the manner in which those arrests and detentions were conducted. The Court cited evidence that agents were “often masked,” that arrests occurred “without prior notice of visa revocation or altered status,” sometimes “on the street or at immigration appointments,” and were followed by immediate transport “out of district and across the country.” [p. 136-137]

The Court stated that it credited the testimony of the agents involved that some practices were not per se abnormal for HSI operations, but noted the absence of explanation for why agents previously deployed for sensitive intelligence matters were used “to enforce this particular policy of, in essence, rounding up campus protestors and op ed writers.” [p. 137] The Court also pointed to the lack of justification for why the Public Officials or the unnamed members of the interagency advisory council “did not adjust the policy to make the arrests less obviously chilling” [p. 137] once the first operations revealed the degree of secrecy and public fear they generated. The Court concluded that, deprived of any explanation, “the most reasonable inference” was that “the manner and method of their execution was adopted, or at least approved of once the first such arrest had been made, in part intentionally to chill the speech of other would-be pro-Palestine and anti-Israel speakers, including Plaintiffs’ noncitizen members.” [p. 138]

The Court determined that the intended effect of the enforcement policy, as established by the weight of the evidence under Count I, closely mirrored the objective that had been found unconstitutional in the Bantam Books cases. It explained that the principles from Bantam Books, particularly the focus on preventing First Amendment chills, were fully incorporated into the governing case law. The Court concluded that, in this case, the First Circuit’s framework in McGuire provided the most appropriate method for assessing such chills. While the Court acknowledged that emphasizing indicia of coercion and the intent to chill strengthened the Plaintiffs’ showing under Count I, it clarified that this doctrine would not be extended for purposes of Count II.

On the last Count, the Plaintiffs’ APA claim, the Court noted that INA’s jurisdiction limiting provisions did not foreclose review because the challenged actions constituted final agency action – meaning an agency decision that marks the end of its decision-making process and has legal consequences – and fell within the Court’s authority to assess whether agencies acted contrary to constitutional limits or without reasoned explanation. [p. 138] With review available, the Court held that the agency action at issue was unconstitutional “for the reasons described as to Counts I and II above,” explaining that “nothing in the text, history, or tradition of the First Amendment suggests that persons lawfully present here may be subject to adverse action based on their political speech,” particularly where the speech concerns “the actions of foreign nations with whom the United States is not at war” and where Congress has made no finding that any relevant organization seeks the violent overthrow of the government. [p. 142] The Court described the enforcement program as a “new invention that in important ways goes beyond its closest analogues in the Red Scare,” [p. 142] a period in which the government aggressively targeted individuals for suspected subversive political beliefs at the height of the Cold War, and emphasized that “pure political speech has never before been grounds for adverse immigration action.” [p. 143]

The Court also determined that the agencies acted arbitrarily and capriciously. It highlighted that the 2021 DHS Guidelines instructed that a noncitizen’s “exercise of their First Amendment rights … should never be a factor in deciding to take enforcement action,” yet the agencies reversed course without explanation, in violation of the requirement that an agency “display awareness that it is changing position” and not depart from prior policy “sub silentio” where reliance interests exist, as articulated in F.C.C. v. Fox Television Stations, Inc. [p. 144] The Court further held that the Public Officials adopted “bizarre interpretations” of immigration statutes “out of regulatory zeal,” citing Matter of Seidman in concluding that deference was inappropriate where INA section 237(a)(4)(C) was invoked in ways that “do not on [their] face clearly apply to speech done only in this country.” [p. 144] Noting that the agencies “not only do not explain this policy; they deny that it exists,” the Court found an “abrupt reversal of course” that deployed statutes “in new and constitutionally suspect ways, with no explanation.” [p. 144] The Court closed by reaffirming that equating “terrorist” with “pro Palestine” or “anti Israel,” and “support” with political expression, severely risks core free speech rights and exceeds the bounds of lawful administrative action. [p. 145]

In its final section, the Court reflected on the broader institutional context surrounding the challenged enforcement practices, the Court turned to what it called “phase one of these proceedings,” observing that “the wrong suffered by these plaintiffs is amply established. What now?” [p. 148] The Court explained that a finding of constitutional violation is insufficient unless some form of redress remains possible, noting that “the Constitution is not self-effectuating” and that courts must ensure “some prospect of an effective remedy” to proceed. [p. 148] The Court expressed uncertainty as to whether effective relief could still be fashioned in light of “the rapidly changing nature of the Executive Branch under Article II” and “the nature of our President himself,” and set out to describe the structural realities that would shape the remedial phase. [p. 148]

The Court first discussed what it termed “the unitary presidency,” quoting its prior description that President Trump is “the first President in our history to espouse a concept of the unified Presidency,” under which he operates as “the single, superior, executive, motive force for all federal employees employed under Article II.” [p. 149] The Court highlighted that innovation and initiative no longer flow upward from agencies but “got to go through or appear to go through or emanate from the President himself,” and that the administration lacks the traditional “reasoned discourse” or internal deliberative processes that historically shaped executive governance. [p. 149] Turning to the President personally, the Court quoted the observation that “[h]e seems to be winning. He ignores everything and keeps bullying ahead,” [p. 150] explaining that this captured how the President “ignores everything,” including “the Constitution, our civil laws, regulations, mores, customs, practices, courtesies – all of it[,]” acting unless and until a court tells him otherwise. [p. 151] The Court also noted the President’s public commitment to “retribution,” observing that “government retribution for speech … is directly forbidden by the First Amendment” and describing the President’s “misunderstanding that the government simply cannot seek retribution for speech he disdains” as a significant threat to expressive freedom. [p. 155]

In documenting the broader environment in which the challenged policy arose, the Court pointed to a pattern of executive measures affecting free speech, citing cases in which federal courts enjoined presidential orders targeting law firms, universities, and media entities whose positions conflicted with the administration’s views. The Court emphasized that this pattern illustrated the scale of institutional pressure facing any effort to protect expressive rights, noting that even historically independent actors “have proven all too often to have only Quaker guns” [p. 152] when confronted with presidential retaliation. This section thus framed the institutional constraints and constitutional stakes that will govern the remedy phase still to come.

In sum, the Court concluded that the Plaintiffs had established significant constitutional and administrative violations arising from the federal government’s implementation of Executive Orders 14161 and 14188. On Count I, the Court determined that the enforcement program was conceived and carried out in a manner that intentionally targeted pro-Palestinian and perceived anti-Israel political expression, constituting viewpoint discrimination in violation of the First Amendment. On Count II, although the Plaintiffs did not demonstrate a coercion campaign directed at specific individuals within the meaning of Bantam Books, the Court found that the evidence of generalized threats, the highly publicized arrests, and the manner in which detentions and visa revocations were executed reinforced the conclusion that the enforcement regime was designed to chill protected speech. On Count IV, the Court held that the agencies’ actions amounted to final agency action that was unconstitutional, arbitrary, and capricious under the Administrative Procedure Act, reflecting an abrupt and unexplained departure from longstanding DHS guidance, an unprecedented reliance on immigration statutes not designed to regulate political advocacy, and the adoption of an enforcement posture that lacked reasoned justification. Based on these determinations, the Court ruled that the challenged policy unlawfully burdened the expressive rights of noncitizens lawfully present in the United States and ordered that the enforcement program be vacated, with the case remaining pending for the resolution of remedies.

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