In a stunning opinion spanning 161 pages, a federal judge in Massachusetts on Tuesday blocked the Trump administration from limiting the free speech of noncitizens by threatening to deport them for pro-Palestinian stances — but he went a step further by warning about President Donald Trump’s “great threat” to American democracy.
“Behold President Trump’s successes in limiting free speech — law firms cower, institutional leaders in higher education meekly appease the president, media outlets from huge conglomerates to small niche magazines mind the bottom line rather than the ethics of journalism,” wrote U.S. District Court Judge William G. Young, a Ronald Reagan appointee who is one of the most senior jurists in Boston.
The opinion comes after a nine-day bench trial over the way Secretary of State Marco Rubio and Homeland Security Secretary Kristi Noem have joined forces to target students, writers and activists who have spoken up against Israel’s war in Gaza by jailing them and revoking their visas. The concerted government effort has sparked a national debate over who exactly is protected by the First Amendment’s free speech protections.
Young, calling this “perhaps the most important ever to fall within the jurisdiction of this district court,” concluded that the plain text of the First Amendment — “Congress shall make no law … abridging the freedom of speech” — means exactly that.
“‘No law’ means ‘no law,’” Young wrote. “The First Amendment does not draw President Trump’s invidious distinction and it is not to be found in our history or jurisprudence. No one’s freedom of speech is unlimited, of course, but these limits are the same for both citizens and non-citizens alike.”Young opened his opinion by quoting a postcard sent to his chambers: “Trump has pardons and tanks . . . What do you have?” In response, he wrote:
Dear Mr. or Ms. Anonymous,
Alone, I have nothing but my sense of duty.
Together, We the People of the United States — you and me — have our magnificent Constitution.
Here’s how that works out in a specific case —
Young proceeded with a treatise on Trump’s embrace of the “unitary executive theory,” under which the president has vast, unchecked and direct control over law enforcement and other government agencies. Young seemed to despair over whether administration officials would comply with whatever order he ended up delivering.
“When this court denied the motion to dismiss herein, it thought an effective remedy might be obtainable; today it is not so sure,” he wrote. “The reason is the rapidly changing nature of the Executive Branch under Article II of our Constitution and, while he is properly not now a defendant in these proceedings, the nature of our President himself. “
Scheduling a hearing on the proper remedy in the case, he wrote: “There must be a remedy (not a monetary remedy). In light of all the considerations just discussed, it will not do simply to order the public officials to cease and desist in the future. The harm here and the deprivation suffered runs far deeper.”
A diverse group of associations representing university professors nationwide sued the federal government in March shortly after officials revoked visas of several people who’d decried what they called a “genocide” in Gaza. Among those targeted was Columbia University graduate Mahmoud Khalil, a legal permanent resident who was arrested by Immigration and Customs Enforcement agents and kept from witnessing the birth of his first child. At the time, Trump claimed that Khalil’s detainment was “the first arrest of many to come.”
During the case, Department of Justice lawyers defended the government crackdown on permanent U.S. residents and students on visas on several grounds, arguing that lower court judges have no jurisdiction and claiming that a written policy targeting them “does not exist” — even though Rubio publicly acknowledged that the State Department was actively identifying people who’d spoken up for Palestinians and working to revoke their visas. And Ethan Kanter, the chief of the DOJ’s immigration litigation office’s national security unit, argued in court papers that “the government is able to take adverse immigration action for certain expression.”
In his order on Tuesday, Judge Young pointed to Trump’s campaign speech at the 2023 Conservative Political Action Conference “to frame the problem this president has with the First Amendment.”
“Where things run off the rails for him is his fixation with ‘retribution.’ ‘I am your retribution,’ he thundered famously while on the campaign trail. Yet government retribution for speech (precisely what has happened here) is directly forbidden by the First Amendment. The president’s palpable misunderstanding that the government simply cannot seek retribution for speech he disdains poses a great threat to Americans’ freedom of speech,” Young wrote.
The judge’s stark conclusions came just hours after Trump told a gathering of top military commanders that he planned to use the military against the “enemy within.”
“America is under invasion from within. We’re under invasion from within. No different than a foreign enemy, but more difficult in many ways because they don’t wear uniforms. At least when they’re wearing a uniform you can take them out,” Trump told them.
The judge’s order ended with an ominous question.
“I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected. Is he correct?” Young wrote.
Trump made his own views on that clear during his speech when boasting about resistance to his policies.
“I thought it would be met with fury on the left. But they’re sort of giving up. I must be honest with you. They’ve had it. They’ve had it with Trump. They’ve been after me for so many years now. Here we are. Here we are,” Trump said.