BREAKING: Federal court rules the statutes the Trump admin used in its speech-based deportation scheme are unconstitutional

• FIRE challenged the two statutes the administration weaponized to try and deport Mahmoud Khalil and Rümeysa Öztürk
• Decision is the first in the country to squarely rule on the constitutionality of these statutes and thus will reverberate in similar proceedings around the country
• Judge: ‘Stated plainly, in the United States, freedom of speech belongs to the people. It is not the government’s to take.’

SAN JOSE, Calif., Aug. 28, 2026 — Today, a federal court ruled that the provisions Secretary of State Marco Rubio used in an attempt to deport legal immigrants for their speech are unconstitutional and violate the First Amendment. 

The Foundation for Individual Rights and Expression challenged the provisions in August 2025. The ruling affirms a bedrock constitutional principle: The government cannot punish people for protected speech simply because officials dislike their views.

“In America, free speech doesn’t just belong to the people who say things the government agrees with,” said FIRE attorney Conor Fitzpatrick. “Today’s ruling proves that free speech isn’t a privilege, but the inalienable right of every man, woman, and child.”

Judge Noël Wise of the United States District Court for the Northern District of California wrote in her opinion that “in the United States, freedom of speech belongs to the people. It is not the government’s to take.”

“Foundational to America’s enduring democracy are our freedoms of speech and the press embodied in the First Amendment,” she wrote. “In the United States, free speech, including the freedom to criticize the government and its leaders, is not a sign of our democracy’s fragility. It is evidence of its strength. That strength is diminished when members of our society — citizens and noncitizens alike — must self-censor and ‘behave’ or suffer the government’s retaliation.”

Rubio and the Trump administration sought to use immigration law to target foreign university students and others for deportation based on protected speech like writing op-eds and attending protests. Their attack suppressed the speech of noncitizens, who worried that voicing the “wrong” opinion about America or Israel will result in deportation. Today’s decision means that the noncitizen writers and editors of Stanford Daily, and Jane Doe, may not have their visas revoked or be deported based on protected speech. And it is the first ruling in the country to squarely rule on the constitutionality of these statutes and thus will reverberate in similar proceedings around the country, including those of Mahmoud Khalil and Moshen Mahdawi.

Noncitizens in the United States have First Amendment rights. Despite that, Rubio used two provisions of the Immigration and Nationality Act to target lawfully present noncitizens for their opinions.

• The first allows the secretary of state to initiate deportation proceedings against  any noncitizen for protected speech if the secretary “personally determines” the speech “compromises a compelling foreign policy interest.” 
• The second enables the secretary of state to revoke the visa of any noncitizen “at any time” for any reason. 

FIRE argued that the provisions are unconstitutional when used to revoke a visa or deport someone for speech the First Amendment protects. Today, the court agreed. 

Rubio used the first provision to target Columbia University students Mahmoud Khalil and Moshen Mahdawi for protected pro-Palestinian speech and the second to target Tufts University student Rümeysa Öztürk for coauthoring an op-ed.

Rubio and the Trump administration claimed that this political speech comes from noncitizens, which therefore warrants setting aside America’s protection of free speech. That’s wrong.

America’s founding principle is that liberty comes not from the government, but is an inherent right of every individual. Every person — whether they’re a U.S. citizen, are visiting for the week, or are here on a student visa — has free speech rights in this country.

Plaintiffs in FIRE’s lawsuit represented the wide range of groups and individuals whose speech is threatened by the continued assault on noncitizens’ protected speech:

• The Stanford Daily, the independent, student-run newspaper at Stanford University, where writers with student visas are declining assignments related to the conflict in the Middle East, worried that even reporting on the war will endanger their immigration status
• Jane Doe, a legal noncitizen with no criminal record who engaged in pro-Palestinian speech and fears deportation and visa revocation because of her expression

“The reporters in our newsroom shouldn’t have to fear that writing a story will result in their deportation,” said George Porteous, editor-in-chief of The Stanford Daily. “Today’s victory means they won’t have to. The Court’s decision will enable our reporters to focus on what they do best: asking tough questions and reporting the truth.”

FIRE aimed to stop the government’s use of the two provisions that stand counter to our ideals as a nation: Provisions that — in their expansive scope and unchecked authority — are more at home in countries like China and Russia than in a free America. 

Marc Van Der Hout, Johnny Sinodis, and Oona Cahill at Van Der Hout LLP served as local and advisory counsel on the case.

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. 

CONTACT:
Daniel Burnett, Senior Director of Communications, FIRE: 215-717-3473; media@thefire.org