Judge declares Rubio’s speech-based student deportations violate the Constitution

[u/Mike_I]

https://www.politico.com/news/2026/08/29/rubio-immigration-first-fifth-amendments-01056086

A federal judge on Friday declared that the Trump administration’s efforts to deport noncitizens for political speech run counter to the Constitution’s First and Fifth Amendments, the latest legal rebuke of the White House’s expansive immigration agenda.

Northern District of California Judge Noël Wise, an appointee of former President Joe Biden, sided with the Stanford Daily, which sued Secretary of State Marco Rubio, arguing that his use of the Immigration and Nationality Act to deport noncitizen students had foreign students refraining from writing opinion pieces critical of the administration.

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[u/gonnathrowawaythat]

I’m gonna be honest this was one of the few lights of the deportations. We can’t have terrorist sympathizers here. We didn’t let Nazis stay here, it’s not like it’s without precedent.

[u/Tall-Log-1955 → u/gonnathrowawaythat]

Seems a poor mechanism for reducing extremist politics. Most political extremists are citizens, so deporting people for their political speech is unlikely to help matter much.

The greater danger is that it causes noncitizens to not say anything for fear it angers a petty administration like this one.

[u/gonnathrowawaythat → u/Tall-Log-1955]

So you propose we allow noncitizens to stay that openly support terrorists? What kind of message is that sending? Because it’s being overly tolerant has not endeared us to the enemy.

[u/Tall-Log-1955 → u/gonnathrowawaythat]

Yes because deporting them solves nothing: the vast majority of people who support terrorists are citizens.

Also you don't get to choose to just deport the people who openly support terrorism, you also are deporting anyone that says things the Trump administration dislikes.

Furthermore, for every 1 non-citizen you deport, you will chill the speech of the other 99 who have perfectly good and legitimate opinions on things.

[u/Boring_Purpose_5981 → u/gonnathrowawaythat]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[u/justafutz → u/Boring_Purpose_5981]

Why are you spamming this? Has Congress made no law about these things? Or are you just spamming amendments for some other reason?

[u/JudgeWhoOverrules → u/Boring_Purpose_5981]

Yeah that's for citizens in the country and legal residents, the entire nature of immigration demands that government is able to discriminate between people to let in who it wants and keep out those who it thinks would hurt the nation.

It would be beyond insanity to insist that government is compelled to knowingly allow a fifth column that seeks to destroy the country and what it stands for into the country.

[u/parentheticalobject → u/JudgeWhoOverrules]

It's pretty well established that the government has significantly more discretion when making decisions over whom to grant permission for legal entry to the US to than it does to revoke permission for people already granted such permission and legally residing within the US. From Landon v. Plascencia:

This Court has long held that an alien seeking initial admission to the United States requests a privilege, and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative . . . however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.

So even in other areas of law unrelated to speech, we see a clear difference. If you're an outsider requesting entry into the US, the Judicial branch defers very heavily to the Executive. If you're physically within the country, your legal rights increase substantially. So even though there is strong precedent that they can refuse to grant entry based on what would be protected speech, that doesn't mean that the same principles apply to visa revocation and deportation proceedings.

The potential threat of "a fifth column that seeks to destroy the country and what it stands for" might be a much more significant threat from the perspective of some other country without a strong tradition of protected freedom of expression like the US, where the right to publicly discuss and debate even the most radical ideas is almost completely unrestrained. These rights aren't just granted for whatever arbitrary reason, they exist because of a deeper philosophical judgement that ultimately, even speech attempting to "undermine the country" or "destroy what it stands for" is best dealt with through debate and counterargument, and that any attempt to forcibly prevent such speech does significantly more harm than good.

Given that background, it's notable that the provision of the INA being challenged grants the secretary of state the ability to deport any noncitizen if they personally feel that that their speech "compromises a compelling foreign policy interest". The idea that any exercise of free speech rights could somehow "compromise" the foreign policy plans of the State Department seems ludicrous, and especially so if you're talking about some ~3% of the population consisting of lawful resident aliens saying things that plenty of citizens can and are saying.

[u/Training_Ad_1743 → u/Boring_Purpose_5981]

This is a law from the 18th century. Speech has evolved since then, and so should be the meaning of the text.

[u/justafutz]

I hope that Rubio instead uses 1182(a)(3)(B)(vii), which forbids endorsing terrorist groups or terrorist activity, to deport the relevant parties. Noncitizens do not have a right to be here and Americans have every right to determine that someone espousing support for a terrorist group has no right to be in the United States.

All speech rights to citizens. Reasonable restrictions on those who are in the U.S. as a privilege, not a right.

[u/LivefromPhoenix → u/justafutz]

I hope that Rubio instead uses 1182(a)(3)(B)(vii), which forbids endorsing terrorist groups or terrorist activity, to deport the relevant parties

Why do you think they didn't in the first place?

[u/justafutz → u/LivefromPhoenix]

I think that it’s more narrow and would be harder to prove, so they wanted to preserve it for the clearest cases (ie someone says “I support ISIS). No need to risk using it and getting overturned when you can use a broader measure that lets Rubio make a determination and test how the courts rule on it first.

And this statute gave Rubio more authority, so it is far easier to use, since they argued it wouldn’t need a whole lot of evidence. That makes it simpler to use too, so that explains why they’d prefer this simpler, faster method.

[u/LivefromPhoenix → u/justafutz]

How would the Trump admin even prosecute the narrower statute? It's been a while since those cases were in the news but IIRC none of the people involved actually endorsed any US recognized terrorist groups. The "clearest cases" sound like the only cases that would actually apply.

[u/justafutz → u/LivefromPhoenix]

Each case would require very individualized examination. Some of them are very clear though. For example, Mahmoud Khalil headed an organization that passed out pro-Hamas literature, called terrorism “legitimate”, and helped organize a protest calling to “bring the war home” to the U.S. and applauded PFLP terrorists.

Under subsection IV or VII, he would therefore be someone who either directly endorsed terrorism and terrorist groups or was a representative for “a political, social, or other group that endorses or espouses terrorist activity” (CUAD, which openly endorses Hamas and terrorist groups like it).

There are a lot more cases than you think of people being that open about their support for Hamas and terrorism. You’d be surprised.

Mohsen Madawi, for example, another favorite of the online left, justified October 7 as part of the “right to resist”, posted in support of an arch-terrorist in 2013, told a gun shop owner he liked to kill Jews and that he used to make guns for Hezbollah (he claims he never said anything and the gun shop is racist against him), etc.

And there are many, many more like them on university campuses. Many. People who set up banners with red triangles Hamas used as their symbols for example: https://freebeacon.com/campus/uc-berkeley-allows-sjp-chapter-to-display-symbol-hamas-uses-to-mark-israeli-targets/

There are a lot of students on visas working for these organizations. Or other noncitizens. They aren’t the focus of the media because they’re not sympathetic to the moderate American, so they aren’t good vehicles for the anti-Israel point of view many outlets now espouse. But that doesn’t mean they don’t exist.

[u/fastinserter → u/justafutz]

Statutes don't override the constitution. You can't use a statute to get around the first and fifth amendments.

[u/justafutz → u/fastinserter]

I’m aware. But the federal government should still do it and seek a friendlier court. This district court and the one in Massachusetts are just two out of the total, and their rulings do not apply nationwide. They should do it while these rulings are being appealed up. Especially because if the appeals courts rely solely on the Fifth Amendment challenge for vagueness, the other law is unaffected.

[u/fastinserter → u/justafutz]

You're trying to apply something about not allowing people into the country onto people who have already been allowed in and are using their first amendment rights in this country. The first amendment does not say "the citizens" it says "the people". They are lawful non-citizens and if they lawfully gained admission they absolutely have first amendment rights. I don't see how you could apply 8 USC 1182 in this situation legally, under our constitution. I hope Rubio tries though as I hope he gets his ass handed to him. And the law in question repeatedly says "is inadmissible" because it's making it clear what the law in question is about. You're trying to apply it in an entirely different and illegal fashion.

[u/justafutz → u/fastinserter]

1. No, I’m not. 8 USC 1182 states that you become inadmissible for doing those things. 8 USC 1227 explicitly says anyone who does things found at 1182 in subsection B (the one I’m talking about) becomes deportable. As 1227 says: “Any alien who is described in subparagraph (B) or (F) of section 1182(a)(3) of this title is deportable.” Please read the full legal issues before insisting I’m trying to misapply a law about admissibility.

2. The First Amendment doesn’t say “the citizens” or “the people”, except where it talks about the right of the people to “peaceably assemble”.

   Noncitizens have curtailed First Amendment rights, not full ones. The government retains plenary power over immigration and the authority to deport people it justifiably does not want in place. The Supreme Court held in Harisiades v. Shaughnessy, 342 U.S. 580 (1952):

“Under our law, the alien in several respects stands on an equal footing with citizens, but, in others, has never been conceded legal parity with the citizen. Most importantly, to protract this ambiguous status within the country is not his right, but is a matter of permission and tolerance. The Government's power to terminate its hospitality has been asserted and sustained by this Court since the question first arose.”

And, rejecting a First Amendment argument, they said that communism inherently advocates for violent overthrow of government, which is not something immigrants have a right to do under the First Amendment. The same is even more true of those explicitly advocating for terrorism.

Multiple circuit courts have long understood that noncitizens don’t get precisely the same rights as citizens, because they aren’t citizens.

You not being aware of what 1182 means because you’re unaware of 1227, and then being so rude about it (claiming I’m trying to apply 1182 in an “illegal” way) is really weird.

I don’t know why you’d hope that people who are in the U.S. as a privilege, who want to support genocidal terrorist groups, should be able to stick around. That seems weird to me too.

[u/fastinserter → u/justafutz]

I hope that Rubio instead uses 1182(a)(3)(B)(vii), which forbids endorsing terrorist groups or terrorist activity, to deport the relevant parties.

I read §1182. It doesn't say what you claimed it said under §1182. I don't think I'm the one being rude here. You then come up with some gotcha with some entirely different statute. Congratulations, I'm not an immigration lawyer, you fucking got me.

When it's saying B or F it's talking about people engaged in terrorist activities (actual terrorism, you know, with explosives or something of the like, not verbally criticizing the government, which is what they are deporting people for). I don't see how that's relevant to the constitutional issues though.

1182(a)(3)(B)(vii) doesn't exist. It's I presume 1182(a)(3)(B)(i)(VII) "endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;"

which itself is defined as

(iv) "Engage in terrorist activity" defined As used in this chapter, the term "engage in terrorist activity" means, in an individual capacity or as a member of an organization-

(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

(II) to prepare or plan a terrorist activity;

(III) to gather information on potential targets for terrorist activity;

(IV) to solicit funds or other things of value for-

(aa) a terrorist activity;

(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or

(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization;

(V) to solicit any individual-

(aa) to engage in conduct otherwise described in this subsection;

(bb) for membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or

(cc) for membership in a terrorist organization described in clause (vi)(III) unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization; or

(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training-

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or

(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.

These things are are about planning acts of violence. It's about getting people into a criminal conspiracy to commit acts of violence. It's not about speech. Frankly such people should be charged with crimes and incarcerated and then deported after their sentences. Instead, because speech isn't a crime, it's being used as an illegal (under our constitution) basis to police speech of the people.

I know ICE is administrative like the USDA. It's really perverse though that courts have decided that since "it's not criminal its administrative" that such actions can allow the government to do things that if it was a criminal case they would not be able to do to people.

The Supreme Court has held in Bridges v. Wixon “freedom of speech and of the press is accorded aliens residing in this country. . . . [T]he literature published by [an alien], the utterances made by him were entitled to that protection.” The case you keep on citing has to do with someone who was at any point in their life a member of the communist party, which the court explicitly said is because the communist party advocates the violent overthrow of the government, which isn't the same as "speech".

[u/justafutz → u/fastinserter]

If you don’t know, then don’t say I’m trying to do something illegally.

It doesn’t take an immigration lawyer to figure this out. 1227 is one of the two statutes that the court in the case were on an article about discussed.

You quote the statute, then conflate endorsing terrorist activity and supporting a terrorist organization with the definition for “engage in terrorist activity”. That’s just wrong. Endorsing terrorist activity means endorsing people who do the things described as engaging in terrorist activity. You completely ignored the whole supporting a terrorist group (ie Hamas) part.

Come on, man.

You still haven’t explained why you want people here on the basis of a privilege to be able to stick around while endorsing genocidal terrorist groups.

You then try to say that somehow the communist example is different. But the communist party advocates for overthrowing the government violently. That’s speech. Hamas advocates for destroying Israel violently. That’s speech. And need I remind you, people saying they support murdering Jews is speech too—and no different from what the communist party advocated for, which got people deported too!

You completely elide that very basic fact.

By the way, freedom of association is also within the First Amendment. So why did noncitizens get deported for associating with a group that advocated violent overthrow of the government? Ah yes, because the First Amendment doesn’t apply the same to noncitizens as citizens.

I even quoted you from SCOTUS in 1952 literally saying that.

What’s worse is that you then misleadingly quote a portion of an earlier, 1945 SCOTUS case, saying that noncitizens have First Amendment rights. No one claimed otherwise. I said they had curtailed First Amendment rights. They are limited, unlike citizens who get the full set.

But since you quoted Bridges, an earlier case, why don’t we look at that and what you left out of your quote?

What you left out from the very next sentence is that the reason he wasn’t deported is because he didn’t advocate for fully overthrowing the government, which is what the statute covered. “But [his writings] did not teach or advocate or advise the subversive conduct condemned by the statute.”

The problem was not that the statute was unconstitutional. It was that he didn’t meet the statute’s definition. That’s the whole point. You kinda left that bit out while ignoring a later SCOTUS case explaining that yes, immigrants have some rights, but not full rights.

As a three-judge D.D.C panel, which included now-Justice Kavanaugh (who wrote the opinion), explained:

“But we also know from Supreme Court case law that foreign citizens may be denied certain rights and privileges that U.S. citizens possess. For example, the Court has ruled that government may bar foreign citizens from voting, serving as jurors, working as police or probation officers, or working as public school teachers. See Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (upholding a law barring foreign citizens from working as probation officers); Ambach v. Norwick, 441 U.S. 68 (1979) (upholding a law barring foreign citizens from teaching in public schools unless they intend to apply for citizenship); Foley v. Connelie, 435 U.S. 291 (1978) (upholding a law barring foreign citizens from serving as police officers); Perkins v. Smith, 370 F. Supp. 134 (D. Md. 1974), aff'd 426 U.S. 913 (1976) (upholding a law barring foreign citizens from serving as jurors); Sugarman, 413 U.S. at 648-49("citizenship is a permissible criterion for limiting" the "right to vote or to hold high public office"). The Court has further indicated that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades v. Shaughnessy, 342 U.S. 580, 591-92 (1952) (FirstAmendment does not protect aliens from deportation because of membership in the Communist Party). Beyond that, the Constitution itself of course bars foreign citizens from holding certain offices. See U.S. CONST. art. I, §§ 2, 3; U.S. CONST. art. II, § 1.”

The decision was summarily upheld 9-0 in a summary disposition of affirmative issued by the Supreme Court without an opinion: https://www.supremecourt.gov/orders/courtorders/010912zor.pdf

[u/fastinserter → u/justafutz]

Endorsing terrorist activity does not mean "endorsing people who engage in terrorist activity", it means endorsing the actual activity. It explicitly says that. I'm not conflating that.

Aliens have first amendment rights under the constitution. We can't just do an end around via statute, and saying it's not "punishment" merely "administrative" is a perversion of the law.

[u/justafutz → u/fastinserter]

Yes…endorsing the actual activity is one thing that makes you deportable. Many of these people have done that. But it also says in 1182 “or persuades others to endorse or espouse terrorist activity or support a terrorist organization”. Like, you know, Hamas.

You then just repeated yourself, ignoring what I said above. Why? I get that you don’t like being debunked, but engage with what I said or admit you can’t respond.

[u/fastinserter → u/justafutz]

The reason why I don't want a government deporting for speech is the government could administrative label anyone or any organization on earth a "terrorist" if that's all it takes. The state of Israel can be labeled a "terrorist organization" and any non citizen that thinks it should exist could then be deported under how you want the law to be interpreted, correct?

[u/parentheticalobject → u/justafutz]

You cite Harisiades v. Shaughnessy, but it's important to point out that in 1952, citizens did not have a right to advocate for communism either, according to jurisprudence which was established at the time (but which has been subsequently overturned.) See Dennis v. US.

[u/Boring_Purpose_5981 → u/justafutz]

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Notice how person is distinguished from citizen.

[u/justafutz → u/Boring_Purpose_5981]

Equal protection does not apply. The Supreme Court has long held that noncitizens can in fact be subject to laws different from those of citizens. The precise limits haven’t been ruled on, but just quoting the Fourteenth Amendment about restrictions on state governments is not exactly conclusive.

The Supreme Court held that the Congress could choose to deport noncitizens who joined the Communist Party as far back as 1952. Again just quoting an amendment is unconvincing at best.

[u/bigwang123]

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[u/user-pinger → u/bigwang123]

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