They Just KILLED the First Amendment With This Move | Jenin Younes & Harry Berger

## A New Front in the Free Speech Wars What emerges from this conversation is a portrait of free speech under stress—but not in the abstract sense of competing ideas, rather as a legal and institutional reckoning over who gets to speak in the United States and under what protection. The exchange lays bare a striking paradox: voices that denounced government-linked censorship in one moment now advocate for similar powers when the targets change. At the center of the debate are concrete policy moves—visa revocations, deportations, conditional federal funding, and the invocation of national security—that together mark a shift from ad hoc pressure on speech platforms to formal state mechanisms for suppressing dissent. The stakes are not merely political; they concern constitutional meaning, administrative practice, and the future shape of academic and civic life in America. ## Deportations as Speech Policing The conversation unpacks a troubling trend: the use of immigration mechanisms to punish political expression. Recent cases involving students and scholars whose visas were revoked for political activity illustrate the point. The asserted rationale is often framed in terms of foreign policy harm or national security, but what emerges from the discussion is a simpler reality: speech critical of a foreign government—primarily criticism of Israel—has been treated as a disqualifying conduct for remaining in the country. That redefinition converts immigration law into an instrument of viewpoint suppression. Legally, the First Amendment’s text is the guiding touchstone invoked in the exchange: “Congress shall make no law abridging the freedom of speech.” From a constitutional perspective, this is a restraint on government action—irrespective of the speaker’s immigration status. The conversation emphasizes that historically the framers did not make speech protections conditional on citizenship; the principle aims to limit government authority to silence dissent. If deportation is used as a remedy for speech, the line between administrative discretion and unconstitutional coercion blurs. The risk is not only to the individuals affected but to the public sphere: if students, researchers, and visiting scholars can be removed for expressing solidarity or critique, universities and communities lose critical perspectives. A particularly pernicious feature highlighted is group guilt by association. Decision-makers appear to be collapsing complex, plural campus movements into a monolithic threat—treating participants as collectively responsible for isolated instances of unacceptable conduct. That logic strips away individual responsibility and due process and makes mere participation or expression a potential basis for removal. The conversation stresses that such conflation cannot be squared with the principles that govern both criminal and immigration adjudication, which insist on individualized assessment. ## The "Guest" Argument and Constitutional Reality A recurring justification for these actions is the “guest” metaphor: non-citizens are treated as temporary invitees whose privileges can be revoked for offense or perceived disloyalty. The exchange challenges that premise as both legally and morally untenable. Constitutional protections do not evaporate because someone holds a visa or a green card. Longstanding legal doctrine recognizes that many constitutional guarantees extend to “persons” within U.S. territory, not only citizens. Moreover, from a policy standpoint, casting immigrants as conditional participants erodes social stability and chills intercultural exchange. The conversation goes further to observe the human side of this legal theory. Many legal residents and visa holders have deep ties—families, careers, children born in the United States—and treating them as dependents of shifting political winds undermines longstanding notions of fairness and settled expectation. That volatility can affect not only the targeted individuals but also the communities and institutions that rely on diverse perspectives, particularly universities that serve as hubs for international scholarship. ## Slippery Slope: From Noncitizens to Citizens One of the most chilling implications discussed is the potential expansion of these tactics beyond noncitizens. The exchange charts a plausible trajectory: begin with deportations and visa revocations, normalize the idea that certain political speech constitutes a security or foreign policy threat, and then devise legal strategies to strip or challenge citizenship—especially for naturalized citizens. Historical precedents are cited where citizenship has been revoked or challenged on vague grounds; the lesson is clear that new authorities granted to counter perceived foreign-aligned speech rarely remain narrowly targeted. The danger is structural. Powers initially justified to counter external threats or to manage immigration can be repurposed domestically. The conversation draws parallels to earlier eras—surveillance expansions after September 11, or platform takedowns framed as countering misinformation—where temporary or targeted measures calcified into more permanent state capacities. If courts allow expansive readings of statutes that permit removal for speech inconsistent with administration policy, the legal architecture for more intrusive measures against citizens could follow through doctrines like “material support” or by reinterpreting national security exceptions. ## Universities, Funding, and Viewpoint Coercion A major strand of the exchange examines federal leverage over higher education. The administration’s conditionality on federal funds—requiring universities to adopt particular definitions of anti-Semitism, enforce certain speech policies, or accept government oversight of curricular content—prompts hard questions about coercion. Once funds are made contingent on a university’s suppression or promotion of particular viewpoints, academic independence is imperiled. Constitutional law is not indifferent to this dynamic. The doctrine against viewpoint-based conditioning of government funds is robust: while the government may set neutral criteria for the legitimate use of its money, it cannot condition funding on the suppression of particular ideas. The conversation stresses that these legal precedents matter because funding is an instrument of control; threats to withhold money can be tantamount to threats to silence. For universities, the chilling effect extends to faculty scholarship, student organizing, and classroom debate—precisely the arenas where controversial ideas are supposed to be tested and contested. Beyond legal doctrine, the discussion highlights practical consequences. Academic institutions that buckle to political pressure face the twin risks of shrinking intellectual diversity and opening pathways for future intrusions. That risk is especially acute when federal directives reach into academic departments, effectively placing curricular content under political oversight. The outcome would be not just a restriction on speech, but an attenuated civic education in which contested foreign policy matters are smoothed by official templates rather than rigorous debate. ## Courts, National Security, and Judicial Deference The conversation recognizes a pattern: courts often defer to executive claims of national security, especially where foreign policy or purported foreign influence is invoked. Recent litigation over technology bans and other national-security-inflected regulations has shown courts willing to give wide berth to executive assessments. The worry voiced is that this institutional habit will be replicated here: judges may accept government assertions that certain speech undermines foreign policy, thereby enabling deportations or restrictions otherwise incompatible with the First Amendment. Yet the exchange also identifies judicial pathways for resistance. Challengers can pres

They Just KILLED the First Amendment | Jenin Younes & Harry Berger Last week Marco Rubio went on a press tour to tout his new self declared status as a free speech warrior. But as the Trump administration deports students for their criticism of Israel and withholds federal funds for schools which fail to adopt government ideology, the betrayal of free speech values could not be clearer. To break down this new censorship regime, independent journalist Harrison Berger (@BergerPosts) is joined by first amendment lawyer Jenin Younes #M3 Secretary of State Marco Rubio went on a bizarre self-promotion tour this week, during which he crowned himself a free speech champion. #M2 Thank you so much for being here and sharing with the American people a very momentous day in the history of the State Department and the U.S. government in restoring free speech and America's role as the beacon of free speech. Something very historic transpired today. Could you tell the American people what that was? #M1 Well, we ended government-sponsored censorship in the United States through the State Department. #M3 That's an amazing thing to say, as the Trump administration has launched the greatest assault on free speech in recent history. #M1 You know, we're going to get rid of these people, and we're going to continue to do it. So when we identify lunatics like these, we take away their student visas. No one's entitled to a student visa. The press covers student visas like they're some sort of birthright. No, a student visa is like me inviting you into my home. If you come into my home and put all kinds of crap on my couch, I'm going to kick you out of my house. And so, you know, that's what we're doing with our country, thanks to the president. -- 1 of 10 -- #M3 Jenin Younes is a lawyer who has opposed censorship from both the political left and the political right, and she explains why Marco Rubio's new self-declared status as a free speech champion is both shocking and laughable. First, thanks so much for coming today. #F1 Oh, yeah, no problem. #M3 So I want to start with this. You were one of the lawyers who took on the Biden censorship industrial complex, where the federal government worked with big tech to take down and suppress the free speech of Americans on social media over what the government arbitrarily determined was misinformation or disinformation on the internet, whatever that means. Can you explain your background with that, taking on that censorship regime? #F1 Sure, so I... Well, I had been opposed to COVID restrictions, which was sort of how I got involved in that area. And then I became aware that a lot of people like me and even, you know, much more qualified than me to speak on these issues, like epidemiologists Jay Bhattacharya and Martin Kulldorff, the former of whom is currently the NIH director, had been censored on social media when they departed from the government's views, especially on the COVID vaccines, but also other things, including mask mandates and lockdowns. So it became obvious to me and some other people that the government was involved in that censorship. After Biden administration officials would make statements sort of threatening to punish the social media companies if they didn't do more to censor misinformation, the companies would escalate censorship and suspensions, sometimes permanent suspensions. Given the timeline of the statements, it became clear that the government was influencing those policies. I actually brought a lawsuit in March of 2022 on behalf of three Twitter users. Those individuals had been censored on Twitter. They were sort of COVID dissidents. They were not scientists. The lawsuit was dismissed, but that led to my involvement in Missouri versus Biden, which reached the Supreme Court. I represented Jay Bhattacharya, Martin Kulldorff, and a couple of other people who had been censored. #M3 -- 2 of 10 -- Right. And I just wanted to ask you that just to show everybody your credibility on these free speech issues, because right now there's a brazen assault in the United States on free speech, mainly pro- Palestinian views. But you're someone who's defended not just views that you agree with, but also views of people who are conservative, who you don't agree with, which shows your credibility. #F1 But I want to ask you about—sorry, can I just interject on that because I actually did agree with the people I was representing mostly on the COVID issues, although I wouldn't say I agreed with every statement. But I agreed with it sort of generally. However, there were also parts of the lawsuit that were about the 2020 election and the Hunter Biden laptop story, and those aren't topics on which I agree. I'm not a political conservative. I don't think Trump won the election in 2020, and I didn't wish he had won. #M3 Right. And, you know, what you're saying, I think, is very true because it was conservatives on the right who objected the loudest to censorship under the Biden regime or under the Biden administration. But today, that same group who were just victims of censorship four years ago are demanding even more censorship under Trump, in this case against their political enemies, who are really just Israel's political enemies. So what do you make of that tribal dynamic where people just seem to cheer on censorship every four years, depending on which political faction is in charge? Has that surprised you at all? #F1 It has. I knew that people tend to be a little bit hypocritical on this subject to a degree. I didn't realize it would be so brazen and so obvious. And I thought perhaps the conservatives had learned from their own experience of being censored by the government. But I was disturbed and unpleasantly surprised to see that a lot of the very same people who decried the censorship that occurred under the Biden regime are championing it under this regime. And, you know, people never say, "I'm pro-censorship." They come up with reasons. You know, under the Biden administration, it was, well, if people heard misinformation about the vaccine, they may not get it, and then they might die, and that would be effectively killing people. And now it's, you know, well, you're a terrorist supporter, so it's fine to censor you. Or you're a guest in our country. We're hearing that a lot because right now, at least, most of the censorship or most of the punishments are being doled out to non-citizens in the form of ICE detention and possible deportation. So while you're a guest in our country, you don't have First Amendment rights, which is not true—a total misreading of the First Amendment or non-reading of the First Amendment, which is probably a more likely scenario. So it's disturbing. -- 3 of 10 -- #M3 Well, I want to get into those cases, and I think we should start with the deportations. You know, hundreds of students at this point have had their visas revoked, as you say, not for any crimes that they've committed, but for merely expressing views that the government doesn't like, namely support and sympathy for Palestinians and criticism of Israel. And one case is this Tufts student, Ph. D. student, Ramezia Ozturk, who, to justify her deportation, the State Department cites writing an op-ed, participating in protest movements, which apparently harass students—I haven't seen any of this, but we constantly hear it—taking over buildings, and just her general support for Hamas, whatever that means. Jenin, how do you expect the courts will react to this, and what would allowing the State Department to arbitrarily deport permanent and legal residents over their op-eds, they write, do to our First Amendment in the United States? #F1 Okay, so I have so much to say about this. I'll try to keep it succinct, but there's a lot. First of all, it's very important for people to remember what the text of the First Amendment says, which is, "Congress shall make no law abridging the freedom of speech." It is not about the speaker's immigration status; it's a restraint on government. The framers did not recognize any kind of difference, and for good reason. They understood that the principles underlying the First Amendment are that the government is not in a special position to judge what's true or what's false. The government is often driven by the wrong motives when it is allowed to censor. And so we don't want to give the government that power. Debate and discussion are the best ways to resolve policy questions of the current time. So that's, you know, from a purely legal standpoint, it's obvious to me that if any law allows someone to be deported purely for their speech or their views, then it's inconsistent with the First Amendment and it should be struck down. What is happening in these cases is a lot of people like Rubio are conflating the conduct of unnamed others with the person at issue. So they're saying, well, students at Columbia took over this building, and, well, Ozturk is not accused of doing that, neither is Mahmoud Khalil. They've just said, well, other students did that at Columbia. Ozturk wasn't even at Columbia; she was at Tufts. So it's, you know, they're kind of treating it as though all the students who oppose what Israel is doing in Gaza are sort of one mass, and they're all responsible for each other's actions, and so they can all be deported. This is obviously completely ridiculous, and it's not consistent with any kind of principles of law, whether it's in an immigration or criminal context or any other. You know, this is about individual responsibility, individual guilt. You're not guilty of any crime or even speech. I mean, just because one person said something anti-Semitic at a protest, which is still First Amendment protected speech, but let's, for the sake of argument, assume that there's some anti- Semitic speech that's First Amendment protected but obviously not desirable, that doesn't mean -- 4 of 10 -- everybody at the protest engaged in that speech. And so there's this conflation of what an individual did with what some people maybe in the group did. So that's another issue. But, I mean, the implications of this are just completely chilling. The philosophy that they're using, basically, is saying that there's this obscure provision of immigration law that allows for somebody to be deported, whether or not they have a green card or visa, sorry, whether it's a green card, visa, whatever, that allows them to be deported. If they're deemed to pose a threat to our foreign policy, and what Rubio is saying is that it's our policy to combat anti-Semitism abroad, he's conflating anti-Semitism with anti-Zionism. And so if you oppose what Israel is doing, then you are conflicting with our goals, and so therefore you can be deported. That's a completely ridiculous interpretation of the statute, which might be unconstitutional anyway. As for what the courts are doing, it's a complicated note. There has not been any federal judicial decision on this issue yet. I am trying to remain optimistic that the courts will do the right thing here, that they'll find either that the statute is unconstitutional or that it must be read in order to limit it to conduct that is something more than speech. So just your speech, your views, involvement in protests can't be the basis for finding that you pose a threat to our foreign policy. So people were sort of perturbed because last week, the immigration judge in Mahmoud Khalil's case found that he could be deported, but people should note that this is really not even close to the end of the road. So he has two cases. He has his immigration law case, which was never likely to be the avenue for relief for him because, you know, first of all, immigration judges are administrative. They're part of the executive branch. They're not independent. They tend not to be very good. The government purposely shipped him to Louisiana to get a Louisiana immigration judge because they're probably the worst