This was simply too much. The judge couldn’t bear it either. After all the witnesses testified, he ordered Öztürk’s immediate release. Her detention imposes a “continued infringement” of her constitutional rights, he said from the bench.
Judge Sessions made another key finding—one that anyone who cares about the First Amendment should heed.
“Her continued detention,” he said, “potentially chills the speech of the millions and millions of individuals in this country who are not citizens. Any one of them may now avoid exercising their First Amendment rights for fear of being whisked away to a detention center from their home.”
I don’t normally break the fourth wall when writing about cases, but nothing is normal about this political persecution. Back in March, before Öztürk’s disappearance but after ICE forcibly arrested and transported Columbia graduate Mahmoud Khalil to Louisiana, under eerily similar circumstances, I began to sense a pattern.
So I wrote about it here in Vanity Fair, which has a long history of covering power, the politics of power, and abuses of power. I won’t bore you with what came after, but the short version is that the Knight First Amendment Institute at Columbia University, which has been raising alarm about many of these abuses, asked if I’d be interested in hosting a new show, The Bully’s Pulpit: Trump v. The First Amendment. They needed a legal journalist who is conversant about these issues. I said yes.
The reason is self-evident: As I wrote two months ago, as goes Mahmoud Khalil or Rümeysa Öztürk, so go the rest of us. If the government can imprison them over their views—or for writing about issues in the national interest, as many journalists do—it can imprison anyone. It can imprison me. In this political environment, hosting a podcast about the First Amendment can become its own form of self-preservation. To uphold the very speech and press freedoms the amendment protects.
All of these freedoms are under siege right now. And the harms are ongoing. As of this writing, Khalil is still imprisoned, and over loud boos, acting Columbia president Claire Shipman mentioned his absence at graduation on Wednesday. Khalil’s lawyers continue to fight for his freedom in a courtroom in New Jersey—bringing to the judge’s attention how much the legal landscape has shifted since his high-profile arrest in March.
And shifted it has: Dr. Badar Khan Suri, a Georgetown scholar and Indian national similarly arrested outside his home in March over his views on the war in Gaza—where his US citizen wife is from—was just released last week from an ICE detention center in Texas. Ruling from the bench, the judge who ordered his release echoed the judge in Özturk’s case: “The First Amendment extends to noncitizens, as it makes no distinction between citizens and noncitizens.”
Little by little, other judges are reaching the same conclusion, and they’re building a public record—and case law—that’s becoming harder to contest. Mohsen Mahdawi, the prominent Palestinian student advocate that ICE arrested at his naturalization interview in Vermont in April, has made “substantial First Amendment claims” that he was imprisoned over his campus advocacy, a federal appeals court ruled earlier this month. The judge who ordered Mahdawi’s release went further—comparing the “extraordinary setting” of his imprisonment to the first and second Red Scares, during which leftist dissenters, many of them noncitizens, were put on blacklists, rounded up, and deported on the basis of their political views.
Even if Mahdawi “were a firebrand,” and not the peaceful activist his supporters embrace, his views would still be protected by the First Amendment, Judge Geoffrey Crawford concluded. “This is not the first time that the nation has seen chilling action by the government intended to shut down debate,” he added. (Thanks to the judge, Mahdawi was able to travel to New York and graduate from Columbia this week.)
